Intellectual Property Ownership
One of the (pleasant) pecularities of employment as an Academic is the freedom to set my own research agenda and how and where I seek funds and publish the outcomes of my work. This freedom is fundamental to academic work and is consistent with the legislative expectation that universities "develop intellectual independence", employ people "who are active in advancing knowledge" and act as "critic and conscience of society (Education Act 1989, section 162(4)). A further freedom enjoyed by many (but not all) academics is that I own some (but also not all) of my intellectual property - something that may be changing significantly if recent Australian developments are followed through locally.
Victoria, like many academic employers distinguishes between two types of intellectual property: Copyright and Patents. Crudely this could be described as that IP which has little direct monetary value (copyright) and that which has the potential to generate vast amounts of money (patents). Our existing contract gives staff copyright ownership of their scholarly works and for everything else essentially restates the default position under the law:
"Other intellectual property (including that which may be subject to a patent) created in the course of the employment of academic staff shall belong to the University."
The key phrase in this clause is derived from the relevant law: 'in the course of the employment.' The Australian case has given that phrase a new significance. The Australian Federal Court has found that the employer must have "engaged and instructed" in order to assert ownership of the invention resulting from the work. The key point for academics is that this must be specific, not a general expectation resulting from our employment as researchers. As the University can't tell us what to research and how, it appears they can't instruct us, and therefore can never assert ownership of inventions.
Commentary on the outcomes of this case has noted that this is rather a mixed blessing. While some academics engage in research with limited commercial impact, some do invent things with substantial potential. No matter the potential, however, someone needs to invest a large amount of money commercialising any invention and this will not happen if the idea is able to be freely copied. Obtaining patent protection is expensive and requires the active involvement of the inventor. If academics are uncooperative the patent will likely fail, so its in the interests of institutions and commercial partners to ensure that academics are well looked after.
The alternative situation experienced in the US is the regime imposed by the Bayh Dole act that pushed US universities to commercialise inventions and engage actively with industry and commercial interests. The unforseen consequence is that it is now hard to find leading medical researchers able to provide independent advice on new medical inventions - they are conflicted through a web of financial arrangements.
The real beneficiaries of this case are likely to be those academics who wish to use tools like the Creative Commons freely without the interference of their employer. Hopefully, this can be done while also respecting those academics who choose differently.