Universities: Expert backs “greater certainty”
for businesses in preventing disclosure of
pre-published research under FOI
Intellectual property law and life sciences expert Seona Burnett
commented on plans contained in the Intellectual Property Bill to
create a new specific exemption from the general obligation public
bodies have to disclose information they hold under freedom of
information (FOI) rules.
The new exemption, if introduced, would mean public bodies, such as
universities, could refuse requests to disclose information that is
“obtained in the course of, or derived from, a programme of research”
in certain circumstances.
Universities and other public bodies could rely on the exemption if the
research is continuing and a report of that research is to be published
in future and disclosure of the information prior to then would, or
would be likely to, “prejudice the [research] programme, the interests
of any individual participating in the programme, the interests of the
authority which holds the information, or the interests of [another
public authority involved in the research programme but which does
not itself hold the information sought]”.
FOI laws in Scotland already contain a similar exemption and, during
a debate in the House of Commons recently, Universities and Science
Minister David Willetts said that there was a need to create new rules
that mirror “the Scottish exemption” within FOI laws that apply in
England, Wales and Northern Ireland.
Willetts said that the lack of guarantees that unfinished university
research would not be subject to disclosure under FOI had
“increasingly led businesses to demand contractual guarantees that
their data will be secure”. He said that this was “not only costly in time
and resource” but that it had also “inhibited research collaboration
between universities and businesses”.
“The introduction of a specific exemption for research will therefore
provide clarity both to higher education institutions and non-public
sector research partners – our excellent research community –
and enhance the UK’s leading position in international research,”
Willetts said.
Willetts had been asked by Liberal Democrat MP Julian Huppert
whether he was prepared to amend the current proposals to add new
wording, suggested by the Wellcome Trust, which Huppert said could
clarify “when protection starts in relation to people preparing a piece
of research”. The Minister said the issue would be considered when the
IP Bill is scrutinised at committee but that he was not currently
persuaded of the need to update the proposals.
“Commercial partners that fund research projects are often keen to
control how that information is published,” Burnett said. “This is
because they want to protect commercially sensitive know-how
generated in projects in which they have invested time and money,
and often their pre-existing know-how too, and because there is also a
significant risk that the early disclosure of information from research
can preclude the ability to obtain a patent for a later discovered
invention uncovered through that research.”
“A right for academic partners in research projects to publish is often
stipulated in the contracts with commercial research sponsors to deal
with these issues. The agreements will agree a process for the
academic partners to publish findings from research projects which
balances the need to publish against the commercial value in the
findings. Whilst universities seek timely disclosure of the results of
their studies, commercial partners like time to review the information
to make sure commercially sensitive data is not disclosed and make a
decision on whether they can apply for patent protection on any
inventions discovered during the project,” she said.
“There are existing exemptions under the FOI Act which allow public
bodies to refuse to disclose commercially sensitive information or
information intended for future publication. However, the proposed
new exemption should help resolve some of the issues and doubts that
may currently deter commercial partners from entering into
collaborative research projects with universities”, Burnett added.
“Having a dedicated exemption against the disclosure of pre-published
research will provide greater certainty to both businesses and
universities and allow for greater control over the early release of
valuable information,” Burnett said. “In turn this should assist
universities attract funding for new research projects.”
For more information, please contact
Soena Burnett
Partner
T: +44 (0)131 777 7359
M: +44 (0)7768 024867
E: seona.burnett@pinsentmasons.com
This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.
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