Make the Butterflies Fly in Formation?
An empirical study about the management of
copyright created by academics in UK universities
Dr Andreas Rahmatian
University of Glasgow and Institut d études avancées, Nantes
Oxford Intellectual Property Research Centre, University of Oxford
29 January 2015
© 2015, Dr Andreas Rahmatian
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The title
S Marginson and M Considine, The Enterprise University in Australia (2000),
in: R. Deem et al. Knowledge, Higher Education, and the New
Managerialism (2007), p. 71:
“The first interview was with the university’s leading nonacademic administrator . . . There was a kind of diffidence,
in a tone of respect, as if the world of research with its
various secrets was a world that he as a manager could
never completely grasp. Yet there was frustration too. How
could all that creative energy be harnessed so as to
maximise the university’s position? The problem – as he
unselfconsciously and unforgettably put it – was ‘to make
the butterflies fly in formation.’”
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The title
This quote was in the context of:
Management of knowledge production in UK universities:
• (1) external funding, IP rights, spin-off companies
• (2) monitoring and regulating performance of
academics’ research
That sets the scene for the framework of this empirical study
on university policies on IP rights – here only copyright –
created by academics in UK universities.
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The focus of the study
 University policies in the UK regarding IP generated by the
academics who are employees of the university
 Thus: copyright, not patents or other IP rights
 Copyright generated by employees of the university who
are academics, not administrative personnel
 Ownership question of employees’ copyright and the
relationship to the university policies
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The focus of the study
 The practical application and enforcement of university IP
(copyright) policies
 The possible (future) role of copyright in university
management and university managerialism
 No third-party copyright (e.g. by publishers) and dealings
with that in the context of university library use etc.
 No focus on the organisation of university spin-off
companies and other exploitation methods of university
staff-generated IP rights
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The underlying legal framework of
employees’ copyright
 Copyright treatment of academics’ typical output
 Literary works
 Articles and books, critical editions, translations
 handouts, lecture notes, oral lectures and speeches (if
recorded), overhead slides
 reading lists, course booklets, distance-learning material
examination papers - University of London Press v University
Tutorial Press (1916) !
 Emails, memoranda and other writings for internal
management, promotional material for the university and
courses
 Computer programs developed within research activity
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The underlying legal framework of
employees’ copyright
 Artistic works
 Diagrams, maps, charts, plans and photographs (all irrespective
of artistic quality)
 Dramatic and musical works
 Mostly important for art colleges and conservatoires
 Sound recordings and films
 Recording of lectures, talks, video podcasts
 Originality requirement: here irrelevant whether ‘old’ UK (skill,
labour and effort) or (possible) ‘new’ EU copyright originality
(own intellectual creation)
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The underlying legal framework of
employees’ copyright
 Employees’ copyright rule: CDPA 1988, s. 11(2):
 Contract of service (employment contract) or contract for
services? AND
 Was the work made by the employee in the course of
his/her employment?
 Stephenson Jordan & Harrison v. MacDonald & Evans
(1952) 69 RPC 10
 Delivery of lectures by an accountant outside the specific
employee’s duties
 The Court’s example of the university lecturer (at p. 18):
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The underlying legal framework of
employees’ copyright
 “The obvious case to which much reference by way of
illustration was made in the course of the argument is the
case for the academic professions. Lectures delivered,
for example, by Professor Maitland to students have since
become classical in the law. It is inconceivable that
because Professor Maitland was in the service at the time
of the University of Cambridge that anybody but himself,
one would have thought, could have claimed the
copyright in those lectures.”
 Also: Noah v Shuba (1991), Greater Glasgow Health Board’s
Application (1996) (patents)
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The underlying legal framework of
employees’ copyright
 Hence:
 No default rule in favour of universities as employers of
academics regarding their scholarly works
 Core academic work (articles, books, conference
papers, lecture notes, musical scores, bespoke computer
programs for research)  employee academic
 Handouts, learning and teaching material, examination
papers, podcasts  ?
 Internal memoranda, emails and other material created
in the context of university management  employer
university
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Conducting the study
 Semi-structured “elite” (specialist’s) interview, 30-45 min –
eight questions:
(1) Is the documentation that the researcher/interviewer has obtained the
complete documentation on the intellectual property policy of your
university with regard to its employees, especially its academics? Or is there
further documentation (clauses in employees’ contracts, staff handbooks
and the like)?
(2) For this study, emphasis is on copyright: do you think that your
intellectual property policy distinguishes between copyright and other
intellectual property rights, particularly patents? If not, do you believe such
a distinction would be necessary or relevant?
(3) On the basis of the documentation before the interviewer, how do you,
as the university’s representative, understand and interpret the existing
copyright policy for university employees?
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Conducting the study
(4) What would you think is the principal position of the university with
regard to the ownership of copyright that university academics have
created?
(5) Are you aware of any exceptions or rules that deviate from the principal
position?
(6) What are in your opinion the purpose and the aims of the present
copyright policy of your university?
(7) How is your copyright policy managed and controlled within the
organisation of your university?
(8) How does the enforcement of your copyright policy look in reality? How
strictly is it monitored, and have sanctions been implemented in case of
breaches? Could you give practical examples that you have come across
in your university?
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Conducting the study
 Analysis of IP policies (obtained from the internet)
 Approach by email (together with the questions, anonymity
assured, both as to interviewee and as to organisation)
 Contacting of “specialists” in universities, representative mix
of old and new universities
 Interview generally face-to-face, 30-45 min, telephone
interview requested by some interviewees, no verbatim
transcription of recording
 Prior preparation for interview possible
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Conducting the study - reality
 Study took from autumn 2011-winter 2012/13 (6 months longer)
 Very sensitive topic: 32 universities approached, 8 interviews
secured: (luckily) still saturation point, despite small sample
 Often no answer at all, or various forms of declining to assist
 IP policies often working documents; or no disclosure of IP policy or
only confidential disclosure
 Not always permission to record interview
 Academics’ employment contracts (© assignment clauses) too
confidential and impossible to inspect
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Findings: university policies and the
law
 Nature of the university policies
 Normally all-encompassing “IP policy”
 Definition of “IP” does not coincide with the law
 Different purposes of different IP rights not appreciated
 “Homogenous” IP policies endorsed by interviewees
 Default rule: university is owner of academics’ copyright
 General understanding of interviewees
 BUT not necessarily conforming with the law: academics are
ordered to teach and research in general, not to
teach/write specific texts with a clearly defined content
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Findings: university policies and the
law
“Exceptions” to the perceived default rule:
 No intention by university to assert copyright
 Distinction between works relevant for commercial
exploitation and other copyright works
 Exclusion of “core academic” copyright works from the
definition of “IP”
 Requirement of the academic to grant an exclusive
licence to the university which has claimed ownership to
the copyright of the academic by default
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Findings: university policies and the
law
 Distinction between teaching and research materials (in
relation to the latter, no copyright by university asserted)
 Licences regarding teaching material granted by
academic who moves to a different university
 Scholarly works (core academic works): academic
considered as an (authorised?) agent for the university in
relation to licences with third party publishers
=
Generally: questionable legal foundation or
unsatisfactory practical management
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Findings: copyright exploitation and
employees’ share
 Employees’ share in the exploitation of copyright
 Detailed rules in all policies, e.g. 90% academic, 10%
university up to £10,000, 75% academic, 25% university for
the next £20,000, and 50%/50% over £30,000
 Practical exploitation more difficult: academics’ breach of
IP policy rules are no practical consequence
 Emphasis on collaboration/consensus, not top-down
policing
 Charitable status of university principal concern, not
exploitation
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Copyright generation/administration
and university managerialism
 Copyright: “managing risk”
 Copyright: managing output assessment of academics?
 Interviews: © not yet an aspect of HR management
(questions 7 and 8)
 Idea of ‘knowledge economy’ and ‘knowledge
management’ practices in universities as businesses in
the knowledge-generating service industry
 Use of copyright to generate income for the university
business
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Copyright generation/administration
and university managerialism
 Managerialism: provides the technocratic illusion
(‘imaginaire’) of seemingly rational and unquestionable
managerial rules that replace substance by procedure
 Measuring of staff performance: output of academics
expressed in copyright (proprietary) units and
assessed/priced for evaluation, promotion or retention
 = Conceptualisation of the individual as a
commodified/objectified human asset (‘human
resource’) and uniformisation of individuals (‘butterflies in
formation’) as content providers – actual content
irrelevant
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Further reading
 A. Rahmatian (2014), “Make the butterflies fly in
formation? Management of copyright created by
academics in UK universities”, 34(4) Legal Studies,
709-735
 A. Rahmatian (2011), Copyright and Creativity (Edward Elgar),
chapters 5 and 6, pp. 228-232, 252-256
 R Deem, S Hillyard and M Reed, Knowledge, Higher Education,
and the New Managerialism: The Changing Management of UK
Universities (OUP, 2007)
 A L Monotti and S Ricketson, Universities and Intellectual
Property: Ownership and Exploitation (OUP, 2003)
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