2005 Policy Paper “Intellectual property”

Preamble

ESIB – The National Unions of Students in Europe has existed since 1982 to promote the educational, social, economic and cultural interests of students at the European level, and towards all relevant organisations and institutions. ESIB currently has 44 member organisations from 34 countries

Introduction

We are at a time in which digital technology and communication is gaining more and more importance, and is particularly used by students and others for spreading and obtaining information. At the same time, the debate on intellectual property (IP) (i) has developed to such an extent that intellectual property rights (IPR) (ii) are becoming increasingly important for the private, public and professional lives of individuals.

IPR, as a form of ownership over the result of intellectual activity, gives rise to a large number of practical, financial and legal implications. These affect the owners of such rights, as well as societies, international communities, and individuals. IPR thus also affects students and their possibility to access information. This falls within the greater debate on the right to education, the possibility to access knowledge, and the assurance for students to be able to complete their studies in a successful manner. With the creation of, and access to knowledge, higher education institutions (HEIs) are deeply involved in the issue of IPR. This is of great importance within the broader debate on higher education (HE), in terms of the allocation and exploitation of such rights and the access to knowledge. Students are also affected by the issue of IPR, as creators of knowledge in the course of their academic work and research.

ESIB feels the necessity to address this discussion from a student perspective. This is both in terms of the effect that IPR have on students’ access to knowledge and the consequences of IPR for curricula, research and financing of HEIs, and in terms of students’ rights over their own work.

This paper will first present a general and integrated view on the discussion, and then proceed to practical and concrete applications of IP and IPR in higher education.

IP and IPR in a Knowledge Society

Today, knowledge is described by some as the third factor of production, the other two being workforce and capital. Due to the massive expansion of knowledge and information in the past decades, the proportion of knowledge products in comparison to material products is constantly increasing and has become crucial for the economic performance of societies. ESIB feels that knowledge is increasingly being seen and treated from the perspective of its commercial value, which is usually concretised in the form of IP. This threatens the accessibility and publication thereof and ignores the broader meaning of
knowledge in terms of serving the development of society. Furthermore, it gives rise to a dilemma between the aim for equality and equal access to information on one hand, and on the other, the recognition and payment of the work that people do with their minds.
Function of IP and IPR

The actual function of IP and IPR is to regulate the use of knowledge in a way that they assure a financial basis and an incentive for the work of creators and inventors. In view of their function, it is of utmost importance that the development and implementation of IP and IP regulations be considered in terms of the wider effects they have. The consequences of IP imply a loss of knowledge on the part of others to whom such knowledge is not accessible, and thus the impossibility of further development of that knowledge.

Moreover, one of the main problems with IP is that it encompasses a wide range of diverse subject-matter, which is not reflected in current IP legislation and regulations, since they treat all these areas in the same way.
Accessibility vs. Privatisation

The saying “knowledge is power” has never applied to a society as well as today. Access to, and control of knowledge has a big impact on the proportion of power in a society and vice versa. ESIB opposes a system of society in which one’s social and/ or financial background determines access to knowledge and information.

ESIB is very concerned about the vicious circle that constantly keeps people in the sidelines through strengthening the two-sided link between financial affordability and access to knowledge. For this reason, the privatisation of knowledge is undoubtedly harmful.

The particular problem with patents in Europe is that their standard length is currently too long in relation to their function, being that they remain applicable for 20 years, while knowledge is constantly developing. This is an obstacle to further development of knowledge developed by others.

Furthermore, the high expenses and the expert know-how required in the acquisition of a patent means that IP becomes a privilege for those who can afford it. This leads to a situation in which those who are well off are able to increase their wealth through IP. This is not possible for those who are incapable of meeting these requirements, especially students.
Cooperation vs. Competition

Knowledge is seen as a major factor in the all-out pursuance of the Lisbon Strategy of the EU “to become the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion” by 2010. One of its core elements is competition, in terms of competition with other world regions, competition between HEIs for financial sources, students, researchers and in the development of knowledge, and competition between students for the limited number of places in HEIs.

In this context, ESIB is concerned that in EU policies, knowledge and HE, as the place of knowledge development, are being reduced solely to a means to support the onedimensional goal of competitiveness of the European economy.

Competition in the field of knowledge development and application necessarily implies that new information is hidden from competitors, at least partly and temporarily, and thus hinders the fruitful free exchange and development of knowledge. ESIB stresses that knowledge should be used to serve societal aims and that the spirit of cooperation should guide the development of knowledge and innovation.

In this respect, ESIB stresses the importance of basic research and research purely for the sake of knowledge. These are of public interest and should not be jeopardised by the trend of increasing competitiveness in higher education.

IP as a Source of Financing for HEIs (iii)

Although ESIB remains opposed to the privatisation of knowledge, the issue of IP is to be considered in the context of decreasing governmental commitment to financing of higher education, and the need for an increase in funds. For this reason, ESIB accepts the possibility of HEIs engaging in activities related to IP and IPR as a source of financing, but is concerned about the effects this may have. ESIB stresses that IP should not become a major source of funding for HEIs and that it is extremely important that it does not control the type and fields of teaching and research in HEIs.
General Considerations to be made by HEIs

It is important that HEIs keep ethical considerations in mind, in terms of the subjectmatter, beneficiaries, commercial exploitation and the publication of results. Above all, it is important that such activities be in line with the aims and purposes of higher education, so that they do not pervert or damage the role of higher education in society. Furthermore, accessibility and cooperation must build a basis for all considerations made by HEIs in terms of IP.

When IP is created within HEIs, ESIB stresses the importance that the credit for this goes to the genuine creators, both within or outside HEIs. Particularly when it comes to financial profit, ESIB stresses that HEIs should:

• carefully consider which of the creative products within HEIs are to be designated as IP and thus become a source of funds;
• ensure that such profit remains in HE, and is used for the pursuance of the aims and role of higher education;
• prevent the development of a market-based approach in the pursuance of education;
• ensure the proper distribution of such profit in such a way that this also benefits less profitable fields of study, such as the soft sciences; and
• ensure that the link between research and teaching remains, so that students are able to benefit from the new knowledge being created in HE.

Research as a Subject of IPR

The basis of research in higher education is its independence and search for truth. When it comes to research as a subject of IPR, it is important that HEIs:

• ensure that IP considerations do not control the type and fields of teaching and research, so that HEIs do not determine their teaching and research activity within the confines the commercial demand therefor;
• ensure that this does not influence the balance between soft and hard sciences, as the latter, due to their greater financial implications, could rule out the former;
• carry out both applied and basic research, ensuring that latter is given its due importance; and
• do not make this their primary activity, to the detriment of teaching.

Students and IP

Creation of IP by Students

Students are often not mentioned as the creators of IP. ESIB strongly condemns current practices where academic staff present the work or research of students as their own. Students develop very high-profile articles and research, however it is usually difficult to get published or quoted when not being part of the mainstream ‘scientific elite’.

To support researching students, ESIB supports the idea of ‘free knowledge’ fora. This would envisage students, professors and researchers having the possibility to send their articles and research results to HEIs, student organisations and/or science organisations and communities, who would then publish them on their webpages, in accordance with the issues dealt with. This would make it easier for students and researchers to perform their work, and help students to get recognised and accredited. However it is of fundamental, importance that the quality of the work published is somehow assured, in terms of methodology and sources.
Databases of Students’ Contact Details

Databases of students’ contact details are to be treated very carefully by HEIs, as is after all required by law. The exploitation of such information must be avoided. Students’ right to the privacy of such information has to be assured.
Patents on Software

Like discoveries, scientific theories, mathematical methods and presentations of information, software is not of a technical nature, whereas patentability requires a specific technical application. In the case of students, patents on computer software have a large number of dangerous implications. This is because students use and develop computer programmes in the course of their work and research. Particularly in the latter case, the lack of accessibility to previous computer software developed and protected by patents, could lead to a situation where students who later develop similar software are penalised for using their own inventions and making them public.

In light of the above considerations, ESIB stresses the need for continued and actual exclusion of computer programmes from the field of patentable inventions.

i Intellectual Property (IP): IP does not refer to ownership of physical property but to the ownership of something which emanates from the mind, thus generally of an intellectual character. IP describes the ownership of knowledge and is therefore of a special character, even though it is treated the same way as physical property in terms of its financial and tradable character. The special, non-material nature of knowledge means that it can be spread without losing intensity at its origin and, it can be shared without being reduced.

ii Intellectual Property Rights (IPR): IPR protect property which is not material. IPR are the rights granted to creators and inventors to control the use of the productions of their intellect. The idea behind IPR is to protect applications of information and ideas that are of commercial value. They are essentially of a negative nature, meaning that they are rights to stop others doing certain things. They stop pirates, imitators and even, in some cases, third parties who have independently reached the same ideas, from exploiting them without the license of the right-owner. IPR therefore define types of dealing with knowledge, ideas and inventions which may not be practised without the consent of the right owner.
The three classical types of IPR are patents, copyright and trademarks/ names. There are also other more minor types of IPR for the protection of other ideas, information and “trade values”, such as industrial designs and trade secrets and other confidential information. It is the first two classical types of IPR that are the most relevant for the purposes of higher education.
Patents: Patents are granted in respect of inventions, i.e. technological improvements, great and small, which contain at least some spark of inventiveness over what is previously known. According to European standards, they are issued by a state or regional patent office after a substantial examination of their validity and last for a maximum of 20 years. Patents give the right to prevent all others from using the invention for the duration of the patent, prohibiting not only imitators, but even independent devisors of the same idea. This very concept makes patents the most basic and most valuable of all IPRs.
Patents on Software: The concept of “patents on software,” not yet developed but currently being considered in proposed EU legislative matters, will also be dealt with in this paper. These are patents on computer programmes or methods used in the e.g. algorithms, data structures, communication protocols, methods for presentation or data processing. They also cover business methods or, more generally, things that do not use the physical laws in any new way, even though thesematters may have physical consequences e.g. the movement of electrons in the computer.
Copyright: This is a right given against the copying of cultural, informational and entertainment productions. It protects the creations of authors, playwrights, composers, artists and film directors, which are marked by their individuality. For the very reason that aesthetic productions are endlessly different, and their protection only operates against copying, the right has come to be of a very long duration, typically throughout the author’s life and 70 years after that.

iii Persons working in HEIs have long been creating material of relevance to IPR, but the significance of this has only been recognised recently. IPR can be important for individuals and institutions alike, a possible source of unexpected wealth for the former, and a welcome boost of funds for the latter.
The creators of knowledge in HEIs are mainly those engaged in research and teaching activities, namely academic staff, students, visitors, former academic staff, and outside collaborators and associates. Whether individually or collaboratively, these creators may be the complete originators of material that becomes the subject of IPR. Alternatively, they may start with, and build upon, knowledge that exists within their institution or organisation.
All the creative products of those working within HEIs are theoretically capable of being IP. The likely subject-matter for IPR at least includes scholar publications, course materials and examination papers, but also databases, patentable inventions, circuit layouts, new plant varieties and confidential information.