Really, it is *their* research, but not in the normal ownership way of thinking. I’m talking about university principal investigators. In the university way of doing things, faculty are not required to conduct research as a part of their employment agreement. Research is of course a big part of the game of keeping employment–such as getting tenure–and moving up the academic ladder. But research is extramural. The faculty investigators decide what research to do, what grant funding to go after, what proposals to write, who to involve. It is their research.
It is most definitely not the university’s research. When universities report their sponsored research income, they are not reporting something any of their administrators did, from assistant vice chancellors of research on up to the system-wide president–nada, ain’t the corporation’s research.
It is the principal investigators and their teams that conduct the investigations, gather and analyze data, assemble research equipment, swear and laugh, decide what is worth publishing, writing manuscripts, choosing the forums for publication, editing the proofs. It is theirs to document and get credit for.
So how do university administrators come to associate research IP with corporate rather than personal–or at least project–ownership? On copyright, they still haven’t figured quite how to reach in. They can argue for commissioned work, like a department web site. They reach further by messing up work for hire by research staff (thinking, those folks must be working within the scope of their employment, and so the copyright is with the university–but oops, their work is directed by faculty investigators who are not working for hire when on extramural funding–will get at this when I can if folks don’t see it). That leaves data and patents.
Data ownership theories are trade secret, statutory regulation, and tangible properties. Trade secret is a tough one to hold. It may be the investigators choose not to publish, but that doesn’t make it a *university* trade secret. There’s no promise not to disclose between the university and the investigators–and if there is, it goes the other way–the administrators are the ones with keep it mum order.
Regulatory restrictions come by way of HIPAA, FERPA, export control, exceptions to public disclosure laws, and restrictions on use of certain information (such as mailing lists compiled by state agencies). This sort of thing isn’t really a matter of ownership but can get in the way of things normally associated with ownership, like being at liberty to disclose things. But those regulations are not university regulations–they are federal and state. So there’s nothing here that makes the research the *university’s*.
That leaves data. Universities typically now have policies that require university access to data records, generally to resolve allegations of research misconduct. Most of the time, these kinds of allegations are totally botched by administrators–really, have you heard of a clean inquiry into research misconduct that didn’t descend into a witch hunt or a huge circling of the wagons? Send along instances.
Administrators have their own rationalizations. One told me that the university owned all research data, just they didn’t bother to tell faculty that unless they had to. No contractual obligation not to disclose and restrictions on use, no ownership theory on the information value of data.
That leaves tangible stuff. A researcher goes to Pepperland and brings back a locker of butterflies on stick pins. Another picks rocks off some black smoker vent on the ocean floor. A third collects strawberry cultivars from all over the world. Who owns these, as tangible property, as chattels? What’s the common law? What is the university policy? What kinds of contracts for research or for use of facilities might come into play?
We might argue that from a common law point of view, faculty doing research and collecting things are collecting stuff for their research, for their projects, for themselves. Just as copyright can vest in a group without independent legal standing (the senior class at Meadowdale High can own copyright in a work they prepare), one might argue that tangible data can set up a tenants in common or joint tenancy situation. Perhaps someone wants to take this on.
In federal awards under OMB Circular A-110, tangible personal property acquired under a federal funding agreement may vest with the “recipient”–which would be the organization and not any individual or project or team. Similarly, in many industry and foundation sponsored research, the research contract may stipulate university ownership of data. This kind of clause is often put there by administrators rather than investigators. Sort of interesting, the university can use an agreement with a sponsor to take property that otherwise would be with the investigators or the team or joint among all of these and the university. What’s the authority for the university administrators to do this? Something to chase down.
We are left then with inventions, and we are up to the gazoo dealing with invention rights. So not much to add. Let’s say that the baseline is: university inventors hold title to patent rights until they assign those rights. This rankles true believers in automagicality and title limbo, but hey, let’s track patent law and the MPEP.
Across all of this, research is the investigators’ but for bits of tangible data and committed invention rights.
There’s one more thing, and that’s the general standard in A-110 __.37 regarding stuff:
“Property trust relationship. Real property, equipment, intangible property and debt instruments that are acquired or improved with Federal funds shall be held in trust by the recipient as trustee for the beneficiaries of the project or program under which the property was acquired or improved….”
Intangible property includes “trademarks, copyrights, patents and patent applications … other instruments of property ownership, whether considered tangible or intangible.”
The research is the investigators’ and their teams’. The intangible property when federally funded does not change ownership, but the university is to hold the property *in trust* for the beneficiaries of the research.
That’s as good as I can do at this point to lay out the issue. With all the fuss over title to inventions, I think the broader plain effort of federal funding, at least, is to put the university in the role of steward, not owner. That’s what is asked, and that makes a lot of sense. I don’t see a lot of talk about how universities should be good stewards of research properties or even of research projects as societal assets.