Professor Petri Mäntysaari: If a professor grants a license, the best option is a parallel license
6.4.2021 klo 09:00
Lately, the Finnish Union of University Professors has talked a lot about copyright. Are there problems with this issue?
Yes, many universities and research institutes have tried to introduce standard agreements or contract forms that force researchers and teachers to transfer their copyrights to their employer without compensation. Such standard agreements or contract forms may have concerned old or new employees, as well as different types of studies, research materials and teaching materials.
Does not the employer have a right to agree on copyrights?
Certainly, as long as this is not taken too far. There are certain limits.
Where is the limit then?
At least, the employer may not force or coerce employers to give up their copyrights. The copyright belongs to the person who created the copyrighted work, not to the employer. Also, the requirement to transfer copyright as a condition of recruitment may be unreasonable and contrary to accepted principles of morality.
Why do the universities and research institutes seek to obtain the copyrights of researchers and teachers to themselves?
There are several reasons. First, the university or research institute may have entered into an agreement with an external funder or client regarding the research project. If the funding is conditional on the client obtaining certain rights to the research results, the employer must enter into similar agreements with all the researchers involved in the project. In that case, it is in the employer's interest to recruit for the project only researchers who wish to waive their rights as required by the funder. Second, a research project may have several researchers, in which case the employer wants to ensure that everyone has access to each other's materials. After all, it is possible that one of the researchers leaves the project and takes his or her own materials as he or she goes. That would be a complication to the progress of the project. A third reason may be that a university wants to secure access to a particular teacher’s teaching materials even after that person no longer teaches. Fourth, an employer may want to surf the crest of open science and require researchers and teachers to surrender their rights to the employer. Fifth, employers may want rights for themselves just to be on the safe side.
These are just examples, and there are certainly many other reasons.
How should an individual professor act?
Professors have many roles. Professors produce copyrighted works, in which case, of course, they must retain their own rights. You should think twice before transferring your rights.
On the other hand, as the leader of a research group, the professor wants to ensure that the rights of individual members of the group can be exploited for the benefit of the whole group. When a research team then needs external funding, the professor wants to meet the requirements of the funder or client also regarding researchers’ copyrights. The situations vary.
In his or her role as a researcher, the professor should ensure that he or she does not generally relinquish his or her own rights in advance. It is easier for a professor to take advantage of the results of his or her own work when he or she holds the copyright to himself or herself, and similarly, more difficult if the rights belong to someone else. You should pay special attention to the trap of open science. Open science does not mean that a professor should hand over his or her own rights to the employer, instead he or she can keep the rights to himself or herself and determine who has access to the material and for how long — according to the principles of open science or otherwise. If the professor grants a license, the best option is a parallel license, which is either fixed term or revokable. Regarding commissioned research, it is important not to assign rights to a greater extent than what is required by the customer. If a university or a research institute, in its capacity as an employer, requires the transfer of rights only for security reasons, or in order to be able to manage rights centrally, then it is best to refuse. After all, the employer cannot manage rights particularly effectively. At the same time, it might be more difficult for a professor to utilise his or her rights himself.
Should one get paid for transferring rights?
The rule of thumb is that there is no need for any rights to be transferred for free unless the author so wishes. The copyright holder is entitled to receive the agreed compensation in accordance with the license agreement. In my view, the condition of the employer's standard agreement or contract form for the free transfer of copyright or the grant of a license to the employer does go too far, because such a condition can be understood as a statutory requirement or otherwise binding for the employee.
You mention research projects, how is the situation regarding these?
There are different kinds of research projects, and copyright questions are being handled in many ways in various projects.
In practice, it is necessary to respect the acceptable demands of the customer in commissioned research. The project’s participants should familiarise themselves with the commissioning party's contractual requirements and not transfer their rights beyond of what is required by the contract. It is best for the researcher to grant only a parallel license. Researchers should also be careful when waiving their rights to research data. After all, a researcher may need the material in his or her own subsequent research, and the research data may also contain data subject to data protection.
The employer may want to transfer the risks to the researchers involved in the project while receiving payment for the work they do. Researchers should make sure that the risks are carried by the employer with better resources at its disposal. This also applies to the intellectual property rights of third parties.
Are copyright issues current in other types of research projects?
“Open science” raises fundamental questions about academic freedom and copyright. The freedom of research and higher education is there to protect the individual researcher. Freedom of research also includes the researcher's right to choose when and how the research will be published. The researcher has the right to his / her works and research data. However, the Academy of Finland and Finnish scientific societies require that funded projects commit to publishing their research results in accordance with the open access principle and to making their research data freely available. I find it very disturbing, if the state and scientific societies force researchers to give up their rights as a condition for external funding. Project funding should be allocated according to the scientific content of the research.
Petri Mäntysaari is professor of Commercial Law at Hanken. Mäntysaari is a member of the Board of the Finnish Union of University Professors.
The interview is a part of the Union’s campaign Copyright for the protection of the freedom of science.