NUI Galway IP Policy and OER: Comparing NUI Galway and Peer Institutions in Ireland

NUI Galway IP Policy and OER: Comparing NUI Galway and Peer Institutions in Ireland

by Kris Meen

I blogged recently about Open Educational Resource policies and whether NUI Galway ought to think about reviewing its own policies with an eye towards making them more OER-enabling. More recently, it occurred to me that it might be useful to have a look at some peer institutions in Ireland. and their IP policies to see if I could get an impression of how NUI Galway’s policies stack up to others’ in terms of their OER-friendliness. I went ahead and found the IP policies of five peer universities: Maynooth University, Trinity College Dublin, University College Cork, University College Dublin, and the University of Limerick. What I found was interesting: that the IP policy at NUI Galway appears to be a bit of an outlier, and in some ways would probably be considered less OER-friendly than at least some of our peers. I include links to all six IP policies (NUI Galway and five peer institutions) below as Appendix A.

I write this post with all the caveats from my earlier post when it comes to the level of my own expertise. That is, I am no expert – and I am not in a position to offer legal advice! What I am is a kind of teacher on campus who is interested in creating OER myself, and who is trying to understand the implications of the overall copyright and policy environment that I’m working within; as well as a project team member of the NUI Galway Library-led OER project trying to put together (open) licensing and copyright literacy materials in order to help OER creators locally (and elsewhere).

I continue to use the Forum Teaching and Learning Guide to Developing Enabling Policies for Digital and Open Teaching and Learning as a reference point. The Forum Guide provides two examples of enabling policies for OER. One is an IP Policy from Kwantlen Polytechnic University in British Columbia, Canada (Forum Guide, pg. 16), which “upholds existing institutional agreements with faculty that the copyright for any work product created as part of assigned duties (including creative work, instructional strategies or curriculum/instructional material) belongs to the employee.” The policy also maintains that in the case of any student-created work, the student retains the copyright.

The second example in the Forum Guide is from the University of Edinburgh (pg. 15), a policy that encourages the use and creation of OER and is reinforced both by an OER Service as well as the creation of OER being added to criteria that can be used by teaching staff seeking promotion. The Forum Guide doesn’t address the IP aspects of the policy specifically, but on accessing the policy, we can see that when creating and publishing OER, the copyright owner is normally in fact the University of Edinburgh. The author of the work is to be included and thus acknowledged in the OER attribution statement, however, "giving recognition for work undertaken" as the policy states (pg. 4). This is illustrated by a clear example of what such an attribution would look like, as follows:

As far as I’m aware, there are no OER-specific policies in Ireland, but what do institutional IP policies look like generally in terms of who owns copyright? On this score, NUI Galway is something of an outlier in that it maintains to a substantial extent ownership over staff outputs. The relevant passages on Ownership of Intellectual Property are in section 4 of NUI Galway’s IP Policy. The policy states that:

Subject to the exemptions set out in this Policy at section 4.4, all University Intellectual 
Property is the property of and vests solely and absolutely in the University. The TTO is 
responsible for the management of the University's Intellectual Property. As such, the TTO 
is responsible for all negotiations, evaluation, marketing, licensing, assignment, and 
disposal of the University’s Intellectual Property. (Section 4.1)

The 'TTO’ in the above excerpt refers to 'Technology Transfer Office.'

The statement above is broadly encompassing, but is consistent with Irish Copyright Law, which states that when an employee creates a work as part of their employment, the employer is the owner of the copyright in the work, unless an agreement to the contrary exists. (Intellectual Property Office of Ireland, “General Information Concerning Copyright and Related Rights,” pg. 5).

There are exemptions to the policy, as noted in the policy excerpt above; these are set out in sections 4.41 - 4.44. and include:

IP that the TTO deems to be of a non-commercial nature (4.4.1)

In terms of 4.4.1 how the TTO goes about deciding, or how an author would go about having something assessed, something to be of non-commercial nature is not made clear in the document.

In terms of open education, especially where OE work involves open pedagogy -- that is, student-authored open educational works -- another exception is likely pertinent:

IP arising from the research of unpaid students under the direction of University 
Personnel (with the exception of cases where that work is subject to the terms and 
conditions of any other agreements) (4.4.3)

So unpaid students are excepted from going through any process in order to maintain ownership over their own work.

As noted above, the statement on works that are the property of the University is quite broad and is indeed in keeping Irish Copyright Law. What makes the NUI Galway IP Policy stand out, however, from peer universities in Ireland is that all of the five that I looked into included and defined broad exceptions to what is claimed as University IP, exceptions relating to scholarly, creative and/or pedagogical work, without being subject to an assessment by a technology transfer or any other office – and not IP arising only from unpaid students.

From Maynooth University's IP Policy section 3.1, for example: 

Maynooth University makes no claim to: 

1. Works of copyright (scholarly articles, papers, books or book chapters, multimedia) related to teaching, literary criticism, etc., which have been created in the course of a MU personnel member’s employment by Maynooth University or otherwise commissioned or paid for by Maynooth University or through Maynooth University under contract from a third party. Generally, copyright of course materials (e.g  lecture notes, assessment materials) is owned by the academic who created the material; however the University retains the right to use such course materials for its own educational and research purposes. 

The University College Cork IP policy notes a similar class of exceptions, section 4.5: 

UCC waives its right of ownership of copyright in Scholarly Materials, except where 
such rights have been created pursuant to a Sponsored Research Agreement or 
agreement with a Third Party. However, UCC shall have a perpetual, irrevocable, 
royalty-free licence to use such copyright in its promotional, educational and training 
purposes. In seeking to publish Scholarly Materials, Employees and Students shall 
comply with UCC and funder policies regarding open access. 

What is included in the category of ‘scholarly materials’ that are excepted? The UCC IP policy provides the following definition of what it includes: 

This shall include academic articles, conference papers, textbooks, theses and dissertations, works of fine art, video and film materials and novels and poems. 

The University of Limerick IP Policy notes a similarly broad class of exceptions:

In recognition of the unique status of a University and acknowledging a long- s t a n d i n g academic tradition, the University does not assert ownership of Intellectual Property that the University deems to be of a non-commercial nature. These include pedagogical works, scholarly publications, books or artistic works of University Staff, regardless of the form of expression.

This exception itself has limits however and does not apply to a number of items, including:

UL IP used in the delivery of University educational programmes in electronic format; in those
circumstances, the University reserves the right to use such material for the delivery of any
educational and training programmes on a perpetual, royalty-free, non-exclusive basis.

The University College Dublin IP Policy, again, notes a similarly broad class of exceptions, as follows:

in accordance with long-standing academic tradition, UCD does not
assert ownership of copyright in pedagogical works, scholarly publications, books or artistic works,
unless there is a written agreement to the contrary.

Yet this exception has limits that are similar to UL, with differences that strike me as more restrictive (in that there is no mention of a non-exclusive license, and where ownership in the case of UL seems still to lie with the author of the work, despite the university reserving the right to its use). From the UCD policy:

This exception to UCD ownership of IP does not extend to copyright in software, apps, data, databases, database rights or to any online teaching materials (including courses captured in video, or in other digital forms) existing or new and UCD shall own all copyright in such works and publications created by the UCD Community in the course of their activities at UCD.

A couple of conclusions:

1. The NUI Galway IP Policy is uniquely vague when it comes to what might be categorized as a ‘non-commercial work’ that would be excepted from University ownership, and is also vague on how the TTO – identified as having authority over what can be considered non-commercial, or not, - would go about deciding this. This probably has implications well beyond OER creation, but certainly a barrier to OER creation is a lack of clarity on ownership of resources – so on this front, I would argue that in terms of OER, the policy could be improved.

2. Broad classes of exceptions for non-commercial/scholarly/creative work covering pedagogical work in some cases in universities in Ireland do not cover teaching materials in electronic format – with varying degrees of restrictiveness in terms of ownership / licensing. I would argue that an OER-friendly policy would include such materials in electronic format in the broad class of exceptions.

Appendix A: IP Policies of six universities in Ireland

NUI Galway Intellectual Property Policy (2019)

Maynooth University Intellectual Property Management and Exploitation Policy (2019)

Trinity College Dublin Policy, Practice and Regulations on Intellectual Property (2018)

University College Cork Intellectual Property Policy (2020)

UCD Intellectual Property Policy (2018)

University of Limerick Intellectual Property Policy (2020)