Universities may once have been communities of scholars that served society by acting as storehouses of knowledge, extending it and disseminating it through instruction to, and supervision of students.
Those days would appear to be largely over in Australia. Universities now are the vassals of government funding, and much of their work, and, in particular, research is directed by governments and industry.
One way of adapting to this change is for universities to seek supplementary funding by making claims on the intellectual property (IP) created by staff and by entering commercial agreements with outside companies to exploit that IP.
The issue of the ownership of staff-created IP and its commercialisation was central to the decision in University of Western Australia v Gray ( FCAFC 116 (3 September 2009) and has substantial implications for university and staff rights to IP.
The Basic Rule
The common law position regarding the ownership of IP is that IP created by staff belongs to the employer.
This is reasonable. The employer provides the staff salary and the facilities whereby the IP is created. The employer may well employ the staff for the express purpose of creating IP.
The 'Group of Eight'
Tertiary institutions have their policies on IP expressed in statutes, regulations or policy documents. There are far too many tertiary institutions to analyse the policy on IP of each. However, an examination of the policies as presently promulgated of each of the 'Group of Eight' universities (Queensland, New South Wales, Sydney, Melbourne, Monash, Adelaide, ANU, Western Australia) shows they all have the following common features.
- The universities claim rights to all staff-created IP
- They then generally exempt certain staff-created IP defined as those attracting copyright or as 'scholarly works'
- They reserve the right to enter into agreements with outside bodies to exploit staff created IP
- Some, but not all, offer staff creators a share in the net profits from the commercialisation of IP
As far as staff rights to their creations of IP are concerned, the above would seem to make it game, set and match to any university policy on IP that includes the above features.
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