'Make the butterflies fly in formation? Management of copyright created by academics in UK universities' by Andreas Rahmatian in (2014)
Legal Studies argues that
Universities have increasingly become aware of the fact that the intellectual property (IP) rights that attach to the work of their academics could become significant and valuable assets to the university as an institution and economic organisation. The study involved analysis of the copyright and intellectual property policies of universities in the UK and the interviewing of specialised representatives of universities in relation to the policies of their respective institutions. The principal question of the study was the way in which university policies deal with the issue of ownership of copyright generated by academic staff, which proved to be a sensitive area. University policies presume that, by default, they own all work that academics create as their employees. There seems to be insufficient appreciation of the differentiated legal interpretation of the employees’ copyright rule. At least in relation to core academic work (scholarly books and journal articles in particular), initial copyright ownership by the university, by virtue of the statutory employee- copyright rule, is highly doubtful. As a result of the universities’ principal position with regard to ownership, university IP policies have resorted to complicated and artificial assignment and licencing provisions, with questionable enforceability.
Rahmatian comments that
In all probability, most universities have issued intellectual property (IP) policies directed particularly at patents and copyright, because these are the most relevant IP rights that arise from the activities of university academics. It is therefore worth looking at university policies on IP rights created by academics, taken from a representative sample of universities in the UK. This study investigates whether universities as employers claim ownership over the IP rights in their policies, how restrictive this claim is with regard to further use, whether this claim complies with the law and whether one can detect a broadly coherent IP policy across different universities. The study is confined to copyright; this is not only to keep the study within manageable proportions, but also because copyright is the most important IP right for a legal conceptualisation of academic output. Copyright, the most far-reaching and almost all-encompassing IP right, concerns every item of academic output, whether in the arts and humanities, the social sciences or the hard sciences, while patents arise only in a science and engineering environment. (Currently, patents are com- mercially more relevant for universities than copyright.) The study also wanted to examine the ways in which a copyright policy is enforced in reality within the university, whether the policy’s intention is reflected in the actual wording and how the role of the policy is perceived by its administrators in the broader context of university management.
The last point raises an important issue. It seems that the growing concern about IP rights generated within universities has gone hand in hand with the rise of the emergence of university managerialism in the 1990s. The phenomenon of managerialism has been defined as ‘a general ideology or belief system that regards managing and management as being functionally and technically indispensable to the achievement of economic progress, technological development, and social order within any modern political economy’. ‘Management’ can be regarded as an abstracted social practice and design for a comprehensive set of ideas for rationally coordinating and controlling collective action. University managerialism seems to be a type of neoliberal managerialism, which emerged in the late 1990s in particular, when the New Labour government came into power in the UK. This form of managerialism has quickly come to dominate public-sector entities. It characteristically replaces political debate with detailed continuous bureaucratic work control at the micro-level, implemented by accountability and performance processes and technologies. Universities, though formally not subject to central government agencies, have increasingly come under pressure to adopt this regime of ‘new managerialism’ and have moved towards an entrepreneurial and market-driven outlook, with the effect that academics have largely lost their importance in university governance and have been replaced by managers or academics-turned-managers. Several factors have fundamentally contributed to the changing culture in universities over the past 40 years, including, in particular, the growing size of the higher education sector and the incessant reduction of public funding by the state. Today, the state is less the financial provider for the universities but, rather, the regulator of their internal affairs (through the requirement for external auditing of teaching and research standards). In such a climate, the emergence of a market- oriented ‘knowledge economy’ or ‘knowledge society’ ideology, implemented through ‘knowledge management’ practices within the institutional university structure, cannot come as a surprise. This ideology demands that the knowledge creation and output be evaluated, monitored and audited in a seemingly objective/ standardised and near-commercial manner (‘business metrics’). The language of university management reveals this economist’s approach: therefore, it has been suggested that institutional decision making is to be complemented by the ‘principle of externality’, a concept borrowed from economics in the context of market (equilibrium) inefficiencies. All that ties in with the idea that universities are just businesses in the service industry and the students are their most important customers. A management scheme following these parameters will try to measure and improve academic staff performance, and will seek to create wealth for the university as an economic entity. Intellectual property rights, particularly copyright, can be of great assistance in such a scheme.
The connection between copyright (or copyright ownership) and managerialism has apparently not yet been made explicitly in the academic literature, but the higher education sector is a good example that can demonstrate the workings of this alliance. The intellectual achievements and services (in a broad sense) of an academic become more measurable if they can be translated (or packaged) into IP rights, above all copyright. In this way, the person’s work can be expressed as a sum of proprietary units, detached from the individual and capable of being assessed and priced for the purpose of evaluation and auditing as part of the university’s management framework. Thus copyright can be a legal vehicle for turning the academic’s intellectual creations into alienable products which (a) enable management to conceptualise an individual as a commodified or objectified ‘human asset’, and (b) create capital for the univer- sity as a ‘business’ organisation by virtue of the separable value of the product (or copyright-property). The latter objective benefits particularly from ownership rules that vest copyright from the outset in the university as employer. It goes beyond the scope of this study to provide empirical evidence of the use of copyright in the rise of university managerialism, but some of possible contributing factors to such a development – copyright policies and ownership rules – will be examined.
