Precious copyright

As a new university employee is signing their employment contract, an attachment concerning the transfer of copyright may be pushed to them. What is the university allowed to demand, and why should you hold on to your rights?

A fixed-term researcher has been accepted aboard an externally financed project that could make use of the data previously gathered by the researcher in their work.

However, the researcher has signed an employment contract attachment that gives the university parallel rights of use, adaptation, and transfer of the research data. If the researcher includes their own previously collected data in the project, they hand over the rights to it as well.

“I’ve had to tell fixed-term researchers not to include your previously collected data in the project and instead use what you gather in the project itself. You can do worse research if it means not risking someone else on the project publishing articles based on your older data”, says university lecturer Antero Puhakka, a long-time Chief Shop Steward at the University of Eastern Finland.

For several years, the University of Eastern Finland has used an agreement everyone must sign when first starting their employment. The purpose of the agreement is to reduce bureaucracy, but Puhakka is unconvinced.

“This agreement could easily be drawn up alongside the research project and would only target the people for whom it’s relevant.”

UEF’s contract attachment is reasonable in scope in that it only pertains to externally funded contract research and rights are only transferred to the extent required by the funding deal for each project. In theory, this means the researcher does not commit to handing over any more than any participant on such a project would have to do regardless.

The dilemma cited by Puhakka regarding the use of your own data indicates the stock agreement might still introduce certain pitfalls.

“Take it or leave it”

Everyone agrees copyright agreements must be clear. The researchers and teachers retain the rights to their own data and results, but in many cases, it is worth negotiating an agreement for rights transfer or parallel rights. The transfer of rights has traditionally been signed at the start of the project.

Naturally, externally funded projects are subject to the terms agreed with the financier. It is vital for research teams not to allow a member of the team to exit and take their own data with them, which would leave rest of the team in trouble. The transfer of usage rights must be negotiated e.g., when creating open online studies.

One source of conflict is the universities’ increased desire to demand copyright “just in case” beforehand, without additional compensation. In this case, the employee cannot know what actual future cases they may be bound to by the agreement.

Thus far, copyright transfer agreements have concerned contract research with an external financier or at least one external party, with related duties regarding results or methods. The employee hands over certain rights to e.g., research results and data. In addition to the right of use, the agreement can also concern the rights of adaptation and transfer. Many universities already offer a stock agreement for the employee to sign along with the employment contract.

“The employee is at quite a disadvantage there and may be facing a ‘take it or leave it’ situation — either you sign, or you walk”, says Petri Mäntysaari, Professor of Commercial Law at Hanken and chair of the Finnish Union of University Professors’ copyright working group.

An employee under contract may also find the copyright transfer agreement in front of them. Signing it is optional. However, many may find it difficult to refuse when told by the employer that this is the practice. With 70 percent of teachers and researchers working fixed-term, the majority will end up having to sign by the time they wish to continue their employment.

Business ideology

Copyright practices at the universities began to diverge after the 2010 university reform, which gave the universities increased financial autonomy. The Finnish Education Employers (FEE) added grist to the mill in 2016 by instructing their members to add an attachment to employment contracts. According to this attachment, all copyrighted material created during the employment period would be permanently transferred to the employer without compensation. Trade unions were appalled. Mäntysaari says the statement reflected the mentality of the Confederation of Finnish Industries.

“On the employer side, you could see the ideology from the business world take hold. The idea was that the university was like a business, the researchers were the company employees, and the research was like business research and development whose results are owned by the company by default.”

Of course, the scientific world is a very different beast. The researcher can keep working on the same subject and data even if they change employers. The universities do not apply the otherwise established interpretation of copyright law, which allows the employer to use any work created during work tasks without a specific agreement.

FEE tried to placate the university workers by stating that their proposal was not necessarily intended for universities but for educational institutions and regarded the use of teaching materials. However, the proposal ended up resonating and agreements were implemented, without negotiations in the worst cases.

“In many places, the employer has first proposed an agreement with some bad terms, but the unions and shop stewards have discussed the matter and managed to come up with a better agreement”, Mäntysaari says.

For example, the MEDigi project developing a national learning platform for medicine and dentistry is preparing a mutually satisfactory agreement with a scope limited to the purpose of the project. Last year, the Tampere University devised a reasonably limited agreement that only covers projects whose external financier requires copyright transfer.

“The agreement is offered for signing at the same stage as the employment contract, because from an administrative point of view this was seen as an elegant way to ensure we have valid agreements on projects that need them”, says Ilkka Haukijärvi, Tampere University HR Director.

According to Haukijärvi, the copyright transfer agreement was developed in constructive solidarity with employee representatives. Signing the agreement may also be refused, and an existing agreement may be terminated if desired.

“Naturally, in those latter cases, the agreement may end up having to be signed at a later date anyway.”

The University of Helsinki’s stricter policy

Currently, the first agreement to also involve the rights to free or open research — i.e., research conducted to fulfil the university’s research objectives without external funding or contractual partners — is being prepared.

In the agreement planned by the University of Helsinki, the university would receive parallel rights to free research data, encompassing the research work of research teams rather than a singular researcher. The university may share the data with other research team members for research purposes, or to other researchers for teaching.

Many concerns were raised at a February discussion arranged by the Helsinki University Association of Researchers and Teachers (HUART), with uncertainty over the use of research data. Many researchers collecting sensitive interview data are wondering whether they can find subjects if consent must be obtained from these individuals for wider use of the research. How do you store and manage data when it can be anything from interviews to mushroom collections? What happens to a fixed-term researcher’s continuing research if they have already handed their rights to one university and the next employer wants the same rights?

The Head of Employment Affairs at the University of Helsinki Katja Heikkilä and lawyer Sofia Kuitunen sent their shared answers to Acatiimi via email. According to them, the agreement is necessary because the research must be able to continue even if one researcher from a team moves elsewhere. Agreements required for certain projects have failed to materialise, which has carried the risk of forcing the university to pay damages or reimburse project funding.

“Thankfully, these risks have not been realised yet. In addition, the lack of an agreement has prevented the university from commercialising inventions and starting businesses has also been unsuccessful. Not having a signed agreement has often also led to internal tensions within research groups, to the extent further scientific cooperation has become impossible”, Heikkilä and Kuitunen write in their reply.

Parallel rights are desired e.g., to ensure anyone on the team working on their dissertation can use the data to finish their work.

The university believes the agreement can be adapted to cover different types of cases while clarifying their purposes and restrictions. Regarding data storage, Heikkilä and Kuitunen state the research teams and units have excellent storage methods and locations, with additional support being developed.

So, is the researcher still able to collect data whose use has only been permitted for a single research project by the subjects?

“The subject’s consent must always be considered when using the data. The subject must be unidentifiable when using the data in teaching. If anonymisation is not possible, the data may not be used in teaching without the subject’s consent regardless of the rights ownership of the data. Usually, research projects are carried out on behalf of the University of Helsinki, which lets the subject give their consent to the university instead of a singular researcher.

According to Heikkilä and Kuitunen, the attachment does not cover data collected outside an employment relationship with the University of Helsinki, i.e., data already owned by a third party.

“As such, the researcher must make sure they are authorised to use the data in research conducted at the University of Helsinki. If the researcher collects additional data at the University of Helsinki through e.g., contract research, the usage rights to the data depend on the contract research terms. However, with free research, the researcher may also use the data outside the University of Helsinki.”

Obligations cannot be avoided with an attachment

Professor Mäntysaari states he is rather concerned. The researcher’s current and future employers — in addition to partners, financiers, and publishers — may have conflicting interests. When drafting the stock agreements, there is a risk that eventually a situation may arise where the prior, current, and future agreements conflict with each other.

“The University of Helsinki wants to reduce the risk to themselves by pushing the risk onto those with the structurally weakest negotiation position and, we can assume, the least amount of legal expertise. For the researchers’ sake, the risks should be mitigated by avoiding transfer of rights to the data”, Mäntysaari says.

FUURT lawyer Salla Viitanen comments that the university is responsible for ensuring the responsible researcher or research team leader knows their duties and handles contract matters on a per-contract basis.

“This obligation cannot be avoided with an attachment to the employment contract. Neither can you avoid a rift within the research team with that attachment, obviously. Research-specific agreements would be especially important in order to know what has been concretely agreed in each project.”

Viitanen is particularly puzzled by the reference to inventions in the University of Helsinki’s replies. Inventions are covered under their own law, which determines the rules for utilising inventions created at the universities.

“As I understand it, the copyright transfer agreement does not have much to do with inventions but specifically focuses on research data”, says Viitanen.

According to Viitanen, the union has not yet received many questions regarding the universities’ copyright transfer agreements. Despite that, there is no shortage of potential issues.

“The attachments I’ve seen have often been too vague to properly convey everything they cover. In general, there is no clear picture of how the universities plan to manage their rights and what the universities need them for. What are they planning to do with those rights?”

Open science does not require transfer of rights

The transfer of parallel rights does not immediately seem as problematic, because the researcher can still use their data. However, Petri Mäntysaari points out the transfer of parallel rights can also have a practical impact on the publishing of results, for example. There have been cases of an international publisher refusing to publish an article because the researcher did not possess all of the rights.

“If the researcher’s own university uses their data in teaching, the publisher may not want to publish their manuscript when the same content is already available for free. These things depend on the publisher, but in any case, it’s important for the researcher to have the rights.”

The researcher may also be concerned about the parallel use of their data if they have not been able to fully utilise it yet.

Nowadays, open science is a goal widely shared within the scientific community. Occasionally, the universities have also used it as a reason for signing copyright transfer agreements.

According to Mäntysaari, the universities have many ways to support their researchers in open publication and encourage it. However, open science in no way requires the researcher to transfer any rights in advance to the university. It is not beneficial for the researcher to sign an agreement that might even theoretically hinder publication through a channel they consider important.

More problems than solutions

University of Helsinki Professor (emeritus) and legal theorist Niklas Bruun has a long history of intellectual property law related work, including his position as the Director of the IPR University Center, a joint institute of six Finnish universities. He also sees problems in the copyright transfer agreements.

Bruun understands the universities wish to safeguard the work of research teams and doctoral students in cases such as one member of a research team wanting to take their share of the work with them. This has happened on occasion. However, Bruun believes agreeing on all future problems through “short, grandiose statements” is an illusion.

“The use of general copyright transfer statements leads to extremely ambiguous situations and most likely causes more conflicts and problems than it solves. This is a muddy playing field with each university rigging something up, and it’s completely untenable”, Bruun says.

Even the basic terms require definition. For example, the difference between research data and teaching material is a fine line when the teaching is based on the research. If the subject of the research is data already protected by someone else’s copyright — a collection of letters, for example — how do you ensure the rights of this third party are protected?

“When someone moves to another university and has parallel rights to the data, do they also retain the rights to the data that has been updated and developed further by their former university? If the person themselves updates the data, can the previous employer claim the rights to the updated data as well? And what does the right to research results mean? Is that the same as the right to publish your research results, or is it something else?” Bruun ponders.

When even an IPR expert finds the agreements overly vague, it is no wonder they appear that way to those less familiar with the subject. According to Bruun, copyright matters should not be handled by lawyers saying what to do. It is important for the researchers and teachers themselves to understand these issues.

No universities except for universities of applied sciences have stock agreements for teaching materials yet. Bruun says the agreement may state the teacher ensures the university of applied sciences has the rights to further use of the material. The agreement may also mention there must be nothing in the material that infringes on third party copyrights.

“This is a massive problem because the Kopiosto deal states a single teacher may make copies and use material and images from previously published works, but the use is strictly limited to that teacher’s own teaching work. The Kopiosto deal does not allow the teacher to pass these materials forward. Conflicts like this have been mostly ignored”, says Bruun.

Interest in teaching materials

The rights to teaching materials are also a matter of interest to the universities. The Tampere University has just started discussions regarding situations that necessitate copyright transfer for teaching materials, as well as agreement possibilities.

Tampere University professor and shop steward Mari Hatavara is involved in the negotiations and informs us that as of yet, no decision has been made on the content of the agreement or the situations it would be offered in. The parties are now looking for common ground in the negotiations.

“We’ve had conflicting opinions. For example, if a person shares their teaching material through the employer’s system, is that tacit consent on the material being transferred to others? I found that suggestion rather outrageous”, Hatavara says.

Hatavara also helped negotiate the earlier copyright transfer agreement pertaining to contract research. Although the Tampere University copyright transfer agreement eventually became reasonable, Hatavara reckons making everyone sign “just in case” is the wrong approach.

According to Tampere University HR Director Ilkka Haukijärvi, the main purpose of the teaching material rights working group formed in February is to create a consistent model for agreeing usage rights in situations that necessitate it.

Haukijärvi says the matter would already have been relevant earlier, but the proliferation of digital approaches makes it particularly necessary. Examples of this include projects to create open and shared learning material through online collaboration.

So far, project-specific agreements for teaching material rights have been created for e.g., online course materials or digital entrance exams. Different faculties have different practices. Hatavara highlights one faculty’s decade-long practice — if a course taught via contact lessons is filmed for later use, the teacher receives additional compensation worth 50% of the lecturer’s fee.

If you decide to transfer the rights to your teaching materials, you should be especially cautious regarding the right of adaptation. According to Hatavara, there have been isolated cases of the university requesting adaptation rights to teaching materials, citing the need to make updates and correct mistakes when the material is used for a long time.

“But research doesn’t work in such a way that you can just ‘correct mistakes’ and the entire scientific community agrees that this is the best way to correct them. Personally, I’d never want my teaching materials in wider use so that someone else can add their own fixes”, Hatavara says.

Text: Terhi Hautamäki

Illustrations: Outi Kainiemi

English translation: Marko Saajanaho

Acatiimi 2/2021