Ownership of copyright is key to the use of works created in universities and colleges, as the owner has control over their reuse. The following summarises the legal position.
- Where staff create copyright works in the course of their employment, the employing institution will own the copyright unless there is an agreement to the contrary. There are two areas of difficulty in relation to this: first, many contracts used in HE and FE lack detail as to what falls within the course of employment, and second, although this is the legal position, it may not correspond with prevailing academic culture and practice at the institution. What falls within the course of employment is defined by the contract of employment. Even if works are created outside normal working hours, outside the institution's buildings, and on the tutor's own computer, they may still have been created towards fulfilling the employment contract, and so are likely to be within the course of employment.
- Where students create copyright works, they will be the owner of copyright, unless there is a valid agreement to the contrary. It is likely that, in many cases, claims by universities and colleges to student IPR will fail due to the application of a fairness test in relevant legislation (the Unfair Terms in Consumer Contracts Regulations 1999). Factors relevant to whether a claim is fair will include whether a real choice was given to the student, and the contribution made to the work by the institution (both in terms of expertise and facilities). For more information on this, refer to the JISC Legal Report on IPR and Student Work.
- Where the university or college commissions the creation of a copyright work, ownership will remain with the author or creator of the work unless there is an agreement to the contrary. It is therefore important for colleges and universities to consider when commissioning work, if they want to specify the transfer of copyright in order to allow future reuse.