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Intellectual Property, Copyright and the Exploitation of Inventions Code of Practice

Note this policy supersedes all other Intellectual Property (IP) policies. Some College policies make reference to our IP Code of Practice. This document should be read as our IP Code of Practice and supersedes all other IP Codes of Practice.

1 Context

1.1 This code of practice applies to all work undertaken by members of the College, staff or students. Where the terms of a grant or an appointment, e.g. of an externally funded student or researcher, are such that ownership of intellectual property rights, IPR, is deemed to rest elsewhere it will be explicitly stated in the member of staff's contract of employment or formal letter to the student, or in the agreement covering the research.

1.2 The College recognises that research should be disseminated for the maximum benefit of society at large and expects all researchers to consider how to engage the public with the research and the potential impacts which may arise from their research projects as a standard part of the research development process, whether or not this is an explicit requirement from a funder.

1.3 The College believes that the public interest is directly served where access to a piece of research would further the public’s understanding of (and/or participation in):

  • the debates of the day
  • accountability and transparency in research
  • allowing individuals to understand how research affects their lives and support them to make informed decisions
  • and, where information is brought to light which affects public wellbeing and safety.

1.4 The College notes that considerations about whether or not withholding information is in the public interest include: considerations of national defence, maintaining good international relations; and law enforcement considerations. Commercial interests also need to be considered. The policies and procedures for ethical review set out how an individual researcher should consider these questions and the process for obtaining approval in each of these cases.

2 Ownership of IPR

2.1 Researchers must ensure that any research project design or any research contracts or agreements that they enter into include provisions for the ownership and management of resulting intellectual property. IP includes (but is not limited to): innovations in research design; research data and findings; processes; hardware and software; apparatus and equipment; substances and materials; and, artistic and literary works including academic and scientific publications.

2.2 Under normal circumstances (and under the provisions of the Patents Act 1977), the College would be the body seeking to protect the IP generated by research projects undertaken by our researchers. However, there are instances where this does not apply. Examples include research projects undertaken by students (where the IP automatically belongs to the student unless they have chosen to assign it to the College or the student is sponsored by a partner who has dictated different IP terms), and collaborative projects (where IP arrangements will be agreed between all parties as part of the collaboration agreement).

2.3 It is the responsibility of the lead researcher from the College to anticipate any possible issues relating to IP at the earliest possible opportunity and to agree in advance how they might be addressed, and then to communicate this information to the wider research team.

2.4 Researchers must not disclose any research or research findings if this will invalidate commercial property rights and should seek advice where this may be an issue. The College recognises the need to minimise any delay in publication pending the formal protection of IP and the vital role that timely publication plays in maintaining the intellectual infrastructure of disciplines and will work with individual researchers to find the appropriate balance between these two competing demands as and when this situation arises. The presumption of the College is that IP developed from public or charitable funds should be disseminated widely for the maximum possible public benefit.

2.5 The College expects researchers to note and comply with any additional conditions relating to IP that may be defined by the funder of the research. In the event that the funder's terms and conditions appear to conflict with this policy, the researcher should take advice from the relevant parties within the College (e.g. the Research Office).

2.6 The formal position on the ownership of copyright with regard to staff is that the College grants to its staff a non‐exclusive, irrevocable, worldwide licence to make manuscripts of their scholarly articles publicly available under the terms of a Creative Commons Attribution (CC BY) licence, or a more permissive licence. This licence is granted by the College, to the staff member concerned and is binding on any successors in title to the staff member all within the meaning of section 90(4) of the Copyright, Designs and Patents Act 1988. Accordingly any rights of copyright granted by authors employed by the College in respect of manuscripts submitted for publication are granted subject to the above-mentioned College Licence.

2.6.1 Copyright in written course or module materials made available to students, such as module guides and reading lists, belongs to the College who grant a royalty-free licence in favour of the author of those materials to use them for their own academic, teaching and research purposes in connection with any future employment at another higher education or equivalent institution. This licence includes the use at any time of the materials in creating content for any academic textbook authored or co-authored by the member of staff. This licence excludes the use of the materials for other commercial purposes, including the sub- licensing of the materials to any third party to enable such third party to use or supply the teaching materials as part of a commercial enterprise, or their use at another higher education or equivalent institution whilst employed by the College. 

2.6.2 In cases where it is foreseeable that the revenue generated may be substantial and can be related in part to the author's connection with the College advice should be sought on a case-by-case basis and the case raised with the College Secretary as soon as is practical. The College shall use its best endeavours to secure royalties. These will be shared as set out in the clause detailed below (clause 3.7).

2.6.3 Copyright in audio, visual and audio-visual content, such as lecture recordings and slides prepared by staff members, belongs to their authors. Where such materials are prepared by staff in the course of their employment, and as a standard condition of employment, the College will automatically receive a royalty-free licence to copy and make them available to students and staff for their intended academic use. Any additional or further uses are conditional on the consent of the relevant staff member.  When staff members leave its employment, the College may continue to use the materials described in this paragraph for their intended academic use under a royalty-free licence for a period of up to three years from the end of the academic year in which the employment relationship terminates in order to ensure that the materials remain available in order to support student learning. Any extension of this period requires the written consent of the former staff member in question. 

In the case of recorded lectures, staff have the right to edit or alter them at any time during the period in which the College is licensed, in accordance with clause 2.6.3, to use them. 

2.6.4 Except as otherwise agreed in writing, if a member of staff in the course of employment, produces any original works (including computer software) which may be commercially exploitable, the College shall be entitled to the copyright in such works and shall use its best endeavours to secure royalties. These will be shared as set out in the detailed below (clause 3.7).

2.7 Under the provisions of the patents Act 1977 inventions by employees in the course of their normal duties belong to the College. The Act sets out the conditions which an invention must satisfy to be patentable, including provisions regarding disclosure (whether by publication or otherwise) which require secrecy of inventions to be protected closely before a patent application is filed, and prescribes the lengthy procedure of patenting an invention. It is for decision by the College in each case whether to share in the exploitation or to assign its interest.

3 Protection and exploitation of IPR

3.1 It shall be for the member(s) of staff concerned to decide whether any invention or intellectual property has the capacity for exploitation and should so be exploited, or whether it should solely be the subject of academic report. In many cases members of staff will wish to report their findings to their peers including the Executive Dean and, if possible, to exploit commercially such findings. The College will, so far as it is able, protect the right of staff to disseminate their findings freely.

3.2 Any member of staff who creates intellectual property which in his or her opinion is capable of commercial exploitation and should so be exploited shall notify the Executive Dean and College Secretary at the earliest possible opportunity.

3.3 Where an invention has potential for commercial exploitation and it is decided to pursue that option, staff shall ensure that confidentiality is maintained. Inadvertent discussion or premature publication may jeopardise an inventor's right and ability to benefit financially from an invention. In discussions with other organisations a note on confidentiality should always be signed.

3.4 If the College does not wish to be involved in exploitation the inventor shall be free to protect and exploit the intellectual property as he or she wishes, subject to the interests of any third parties. The College will formally assign its rights to the inventor.

3.5 The College in consultation with the inventor(s) will decide on the action to be taken for the protection and commercial exploitation of all types of intellectual property. This could be an application for patent, assignment of the rights to a third party, the formation of a limited company to exploit the property, or the licensing of another body.

3.6 There is no statutory obligation on an employer to compensate an employee for the use made of intellectual property generated by the employee except in the sole case of patents, where an employee has the right in exceptional circumstances to receive a reward. Otherwise, any compensation is entirely at the employer's discretion.

3.7 The College view is that there should be a division of revenue received from commercial exploitation of its IPR. Any revenue received by the College therefore as a result of commercial exploitation shall first be used to pay any direct costs incurred by the College in the protection and exploitation of the property. Further income shall then normally be distributed as follows.

Percentage division of royalties:

  • Less than £50,000: inventors 75%, school 25%
  • More than £50,000: inventors 50%, school 50%

This division shall be reviewed from time to time.

3.8 Where more than one individual is involved in an invention the distribution of their share of the income shall be a matter for them to determine. If there is a failure to agree, the College shall, after taking advice as to an equitable distribution, distribute the royalties as it judges fit.

3.9 The sole authorised signatory on behalf of the College on all matters relating to intellectual property shall be the College Secretary except that in cases of urgency and the Secretary's absence this authority may be delegated.

Policy updated March 2023. This policy is owned by Birkbeck's Innovation Support Unit.