Owning Creative University Outputs

We've started on the first SPIN session for the new day now - a panel discussion on 'Universities, Creativity and the Real World?' So, this should keep me awake until I get my first coffee for the day. Paul Draper from the Queensland Conservatorium at Griffith University kicks off this session with the introductions - the other panel members are Matthew Hall from Swaab Attorneys and Jenny Wilson from the Griffith University Office for Commercialisation.

PD begins by speaking from a musician's perspective, noting the different IP licences which apply to different forms of content (composing & publishing, master licences of recordings, etc.) MH adds that unlike the case of scientific innovation, in a creative context many different aspects of a single work may be owned by different owners (lyrics, sound recordings, etc.). Ownership is also less than obvious as it arises simply and automatically through the process of creation, without anyone needing to stake their claim in an official sense. Further, there are various administering agencies which control the rights in various forms of musical works (recording, performing, reproduction rights etc.).

Following an audience question, there is now a slight diversion towards a different issue - of how copyright owners' rights are addressed in a university context, e.g. by staff and students using excerpts from copyrighted content in their own work. (Much of this is covered by 'fair use' or 'fair dealing' clauses in applicable legislation.)

Getting back to the main topic, MH continues that the copyright industry in the musical field is highly inflexible - and is unlikely to consider any commercialisation deals in which they do not ultimately own the rights in what is produced. It is the dominant practice for such operators to seek to own the rights to all output by the people they sign - and in academia, this would then mean that a practice-based researcher who gets a record deal would no longer be able to use their own work in their teaching unless their university enters into a licencing agreement with the copyright holder.

PD now introduces Jenny Wilson, who sits somewhere in the middle in this environment (and physically in the middle on this panel). She notes that university IP policies do not necessarily match IP practices in the content industries, because of their interest both in commercialisation and research. Also, traditionally such practices were governed more by an interest in patents than copyrights, and only relatively recently the balance has shifted (patents need to be claimed, of course, while copyright applies automatically to content as it is created).

The shift has also led to a gradual erosion of the focus on academic freedom and fair use, with policies not speaking more about copyrights and commercialisation than the traditional academic uses of intellectual property. A problem in current IP policies is that they were designed originally with science in mind, not creative content - and this has created an uncertainty; JW notes that she now often operates on a case-by-case basis in her work. There is also a problem in that such policies do not treat all academic staff (scientific and creative) as equal. Universities are also unclear about the ultimate aims of their copyright policies - informed by law and business practices but also stating the underlying principles (e.g. of promoting and upholding academic freedoms).

PD now introduces a hypothetical scenario, using the example of a university orchestra that incorporates staff and students, visitors and alumni; it may span a number of musical disciplines, work on a project-by-project basis, and perform original as well as existing works which may or may not be recorded (and released). What about a composition created by a staff member on university instruments, with class input, input from a visiting scholar, and from specific students - who owns the IP? (Views within the audience are divided - some believing that the IP is owned by the creators, some by the university.)

JW now describes the situation in some more detail (based on a hypothetical but realistic university IP policy document). To begin with, the originator of the composition would own the copyright, but as students become involved in a class teaching situation the university may take some ownership (the composition is then similar to lecture notes). The visiting scholar may also be required to sign over their rights in their contribution, as they participate as part of their visit. Finally, then, a specific student contributing to the composition may or may not hold IP rights, but it is more likely that the university would hold IP rights here as the student benefitted from university resources.

MH disagrees: for him, unless the university can establish that the work was created by the originator in their course of their employment the university cannot claim any rights. However, this also hinges on whether the composition when used in the classroom can be considered course materials; Matt suggests that a composition would not necessarily count as course materials, and the originator of the composition could make a strong case here. This then filters down also to the visiting scholar; if the university does not own the rights of the first contributor, then it would be even more unlikely to own those of the second contributor (the visitor). As for the students, in the policy example IP rights in student works do not automatically fall to the university, and the university would need to request assignation of ownership explicitly.

A second scenario: the scholarly visitor takes notes of the composition in class and wants to incorporate the composition in a research paper and her teaching activities at their home university. JW suggests that in this case the visited university would agree to use in research publications but not in teaching; MH thinks that the rights situation would again depend on whether the composition is seen as being part of the teaching materials or not.

A third: the originating staff member produces and records the composition using the university's facilities, and the composition is played here by student volunteers - who owns IP in the sound recording? JW suggests that the university would own this recording as the provision of the recording facilities constitute a substantial contribution to the recording; however, performers also own IP in a recording, and as the students here were vounteers and didn't participate as part of their studies they would continue to own this IP. MH adds that the ownership of sound recordings is determined by ownership in the physical master tape (or hard drive) which holds the recording, so ownership would likely be shared between the university and the performers.

A fourth scenario: the originator of the composition is approached by a film company wanting to use the composition in a new educational documentary. (As an aside, Steve Copplin from the CI Enterprise Centre notes that there is also a question of software licences here - many education licences e.g. for recording software disallow the use of such software for commercial recordings, effectively disabling commercialisation of content!) JW suggests that in this case the originator would need to obtain IP assignment from the student performers or make a second recording under different assignment agreements. MH agrees, and notes that it is important to distinguish between using the compositional score and using the recording of the piece - if the sole IP rights holder in the composition, for example, the originator could licence the score, but would have to get permission from the performers for the sound recording.

A fifth step: there is now an offer to release the sound track for the documentary commercially. Who is entitled to returns from the commercial sales? JW suggests that the originator would not have the right to grant release unilaterally. The university might now also review the rights of the participants as there is now an overriding commercial gain, and could claim rights in the composition and the sound recording; however it would still need to address the interests and expectations of other contributors to the piece (passing on a share of the royalties to them). MH notes that such a policy could therefore mean that as commercial potential increases the originator could lose their rights in the composition, with the university exercising its rights according to its copyright policy.

And finally, in the same case, who should need to be credited on the documentary and the CD recording. This is a question of moral rights, of course (in a strictly legal, not an ethical sense!). MH suggests that the people to be credited at this point would be the composers only; however, as WIPO amendments come into force every single performer on the recording would need to be credited unless it is unfeasible to do so. The university might also want to stipulate in its own policy that it should be credited; JW agrees.

Phew.