On 3 February 2021, the Helsinki University Association of Researchers and Teachers (HUART) organised a discussion event regarding the University’s plans to transfer rights to research material and data. In this blog, the Chief Shop Steward of the Negotiation Organisation for Public Sector Professionals (JUKO) Seppo Sainio and HUART’s Chairperson Tommi Kokkonen explain the situation, address questions that have come up, and clarify researchers’ point of view regarding the rights transfer agreement.
The University of Helsinki’s plan to transfer rights to research material is causing concern among researchers. The University’s objective is to adopt an addendum to employment contracts that would transfer certain rights to the University upon signature. The transfer of rights would apply to all research material related to research carried out in a research group. The University would obtain parallel rights to use, modify, and share the material. Furthermore, the University would obtain the right to self-archive researchers’ publications and to use them in research and teaching. Researchers would not be compensated for the transfer of rights and the rights would be transferred for an unlimited time. In effect, the transfer of rights would apply to a researcher’s entire career at the University.
This is the first time in the Finnish university sector that a planned transfer of rights is targeted at open research material. So far, some universities have used transfer of rights agreements in connection with contract research, that is research that has external funding and where the funder requires access to the research results and material. Now the transfer of rights would be extended to open research carried out under the universities’ core funding.
The transfer of rights would mark a significant legal change to the status of employees
We consider the planned transfer of rights agreement to be unjust from the perspective of researchers. Furthermore, due to the diverse nature of research material, we do not think it is possible to write a transfer of rights addendum to employment contracts that could apply to all branches of science and all situations.
An exception to the Copyright Act (tekijänoikeuslain korkeakoulupoikkeus) guarantees university researchers and teachers the right to control their works and to decide how they are used. In some cases, research material can be considered a work, in which case the employee gains the rights to the work in accordance with the Copyright Act. The rights to research material may also be based on its terms of use, the privacy protection of research subjects, or the research ethical practices in the field. Furthermore, the researcher cannot be required to hand over the rights to research material that they themselves have used and that is covered by third party copyright.
The freedom of contract allows different terms to be agreed for intellectual property rights. However, the transfer of rights must always be expressly and voluntarily agreed. An equal negotiating position is not possible between negotiating parties if the transfer of rights is set as a condition for employment. The rightsholder must have a genuine opportunity to not hand over rights as well as to negotiate compensation for the handing over of rights.
The transfer of rights as an employment condition would put universities’ employees with a fixed-term contract, 70% of teachers and researchers, in an unequal position compared to employees with a permanent contract. Fixed-term employees would have to hand over rights when signing their next employment contract, something which cannot be demanded of existing employees with permanent contracts. The transfer of rights would also apply to new permanent employment contracts. It is likely that, if realised, the transfer of rights requirement would quickly spread from the University of Helsinki to other universities as well. The change would significantly weaken the position of university researchers and it would create uncertainty regarding many aspects of a researcher’s career, for example, when a researcher changes employer.
Data protection and confidentiality suffer
This is not only about researchers’ rights. The employer’s right to share sensitive research material would complicate research when research is based on trust between the researcher and the research subjects. Research material classified as confidential is used in, for example, the educational sciences, psychology, as well as social and cultural anthropology, where research requires a relationship of trust between the researcher and the research subjects. When necessary, the researcher must be able to guarantee that research material will not be shared.
The researcher must also make a data protection declaration in accordance with the Data Protection Directive regarding the use of the personal information found in the study. Even if the material is anonymised, those involved in the study would have to be informed that the research material can be shared independent of the researcher. From the workload and legal points of view, it would be unreasonable to require a single researcher to anonymise all of his or her research material into transferable form.
Researchers’ and research subjects’ rights must be protected
We consider project-based agreement to be the correct approach to sharing research material within research groups. There are a handful of problematic cases each year, but the number of them can be reduced with good project management, contract management systems, training, and manuals. In this way, we can, for example, guarantee that PhD candidates can use material generated in the research group for the completion of their own research.
Responsible conduct of research guidelines require that issues related to intellectual property rights be agreed upon at the start of a project. In contract research it is always the case that the researcher’s rights and obligations are agreed upon on a project basis to ensure that researchers are committed to these terms. It is also good to keep in mind that external funders have various requirements when it comes to intellectual property rights.
From the point of view of researchers’ and research subjects’ legal protection, it is problematic to transfer rights “just in case.” It is justified to share or transfer only the rights that a funder or a group’s research require be shared or transferred.
A researcher’s opportunities to use or commercialise his or her knowledge may be beneficial to the researcher and to the broader community. Publishing agreements with book publishers, for example, bring course books and other literature to various disciplines.
The research profession already consists of many uncertainties and competitive conditions. We believe that weakening the rights of researchers could further reduce the appeal of careers in research.
Seppo Sainio, Chief shop steward (JUKO) & Tommi Kokkonen, Chairperson (HUART)