Interview with Richard Niven

The copyright issue has different meanings for literary authors looking for maximum diffusion and academic authors interested first in the scientific debate. On the one hand the copyright issue is essentially an economic one; on the other hand it is a key issue for idea protection in the broad context of free access to knowledge. That is possibly the reason why academics seem less than interested in copyright matters, but the growth of the Information Society promises to change all that. Mr. Richard Niven, Copyright Manager at the Open Polytechnic of New Zealand, gives us his opinion and shares his efforts to build new instruments, such as a model contract for academic copyright protection.

Academic copyright is a vexing question. Academics do not worry too much about the ownership of the copyright they create. Academics want to be able to teach and to be able to write learned articles and books to increase their status as academics and to improve their chances of promotion (publish or die).

Consequently academics are 'happy' to be forced to sign away their copyright to the publisher when they contract to have their latest book or article published.

Additionally their employers, the universities, do not usually worry about the copyright created by their academics. As long as they teach (and do not abuse other peoples' copyright) the universities are happy for the copyright work to go into books and articles.

The digital and ICT wave is beginning to call all these old attitudes into question.

Academics I have spoken to in Stockholm (European Distance Education Network 10th Anniversary Conference, Stockholm, June 2001) and St Petersburg (IMS Internet conference, St Petersburg, November 2001) as well as in my hometown of Wellington, New Zealand, do not know what they own by way of copyright and what they can do with it. University administrators are generally equally uncertain.

In some cases the copyright has been granted to the journal publisher but was the copyright able to be granted by the academic? Was it owned by or licensed to the university? Can the copyright go into an on-line course? Are royalties payable?

The two questions are: 1, What are the terms of the relationship between the academic and the university on copyright? (the 'is' question)

And 2, What do we want that relationship to be and what should each party own? (the 'ought to be' question.)

What IS the relationship? Often it is a contract, usually an employment contract.

National laws on copyright are increasingly presuming that the first owner of copyright is the employer. This is however subject to a contract that may leave all or part of the copyright rights with the academic. Where this additional contract does not exist, the copyright may still be owned by the academic if the work was created in the academic's own time (however, the way I see academics work I would be surprised they have any time left for themselves!).

What if it was partly in 'work' time and partly 'at home'?

The 'is' therefore can be a real mess.

So to the 'ought to be'.

Ought we to change local laws to meet what we want to be the case?

I do not believe there is a problem in the goodwill between academics and universities. The problem is finding out what can actually be done under each contract and in identifying what each party needs. Once we have this, it can be incorporated into the contract between the university and the academic. Legislation will not be flexible enough and at the same time not internationally uniform enough to meet the needs of academia. All that is needed is for the law to allow contract to vary any legal presumption of ownership or use. The method to effect the 'ought to be' is therefore the contract between the university and the academic and any licences flowing from the contract.

I refer to a copyright and intellectual property policy incorporated into employment contracts at Otago University. This is a good start but appears a little restrictive. In practice it causes a few problems for copyright. Scientists on the other hand are more concerned about rights to inventions (patents) but that is another story!

The ideal contract should keep the overall ownership with the academic who wrote the material but licence the university to use the copyright for contact and on-line teaching. Maybe there should be a first refusal right to the university to publish the academic's work. Acknowledgement needs to be made for the copyright brought to the university where the academic is employed.

I am receiving international demand to prepare a model contract and model university policy to meet the legitimate needs of the universities and of academics. I intend to complete it this year.