Art and Intellectual Property in Academia: A primer

By Dr Kylie Pappalardo

Managing intellectual property can be challenging at the best of times, and university IP policies can add an extra layer of complexity for academics producing scholarly and creative works. This primer provides a short overview of the general legal principles likely to apply to creative arts practitioners working in the university sector.

Copyright in research outputs

Almost all creative and research works will attract copyright protection under the Copyright Act 1968 (Cth). Copyright law protects what we normally think of as ‘creative’ outputs: written works, artistic works, dramatic works and musical works, as well as films and sound recordings. Protection arises automatically under law, as soon as the relevant output is created. In Australia, there is no need to register to obtain copyright protection.

Most universities will have IP policies that apply to works created by academics and researchers. These policies will be similar across institutions for some outputs – for example, all universities tend to assert ownership over teaching materials produced by staff. However, IP policies tend to differ in small, though significant, ways when it comes to research and creative outputs.

But who owns copyright in the works we create as academics? Section 35 of the Copyright Act provides that the creator of a work will own the copyright in it, except where the work has been created “in pursuance of the terms of [the creator’s] employment”. Where a work is created within the scope of employment and for the employment purposes, then copyright will be owned by the employer. Importantly, the Copyright Act provides a default position only; ownership arrangements can always be altered by written agreement.

The default position under law, therefore, is that any work produced as part of an academic role will be owned by the employing university. This will generally include works produced using university resources, in fulfilment of employment KPIs, and/or during work hours, even if some of the work occurs after-hours or off-campus. This does not apply to works created outside of or prior to the employment context.

Most universities will have IP policies that apply to works created by academics and researchers. These policies will be similar across institutions for some outputs – for example, all universities tend to assert ownership over teaching materials produced by staff. However, IP policies tend to differ in small, though significant, ways when it comes to research and creative outputs. Some institutions, like the University of Queensland, the University of Melbourne and Monash University, assign copyright in ‘scholarly works’ back to the original academic creator, or exclude scholarly works from the ambit of intellectual property owned by the university. The term ‘scholarly works’ is commonly used in university IP policies, though it can be defined in different ways. For example, UQ’s definition of ‘scholarly works’ includes a number of non-traditional research outputs such as musical compositions, photographs and films, whereas Monash’s definition specifically excludes films and sound recordings where the university has contributed funding, resources, facilities or apparatus. When the university grants back copyright ownership to the academic creator, it will usually take a licence to use the work for its own educational, teaching and research purposes.

Another common approach is for the university to assert copyright ownership over scholarly works, including creative outputs, but to grant to the individual academic a relatively broad licence to use, adapt or modify the works for purposes such as publication, teaching, academic research and personal promotion. This is the approach, for example, at Griffith University and the Queensland University of Technology. Generally, the policies do not expressly provide whether the licence granted to academics extends to uses such as exhibiting artwork or displaying films in a film festival. It is arguable that these uses might fall within personal promotion purposes, or a broad reading of ‘publication’ that includes all forms of research dissemination. However, it is best to seek advice from your academic institution if you have specific questions about your own use and display of creative outputs.

In practice, regardless of whether the individual creator or the university owns copyright in creative and scholarly works produced as part of an academic’s employment, both creator and university will have broadly equivalent rights to use the works for research and teaching purposes. Academics are rarely actively restricted from exploiting their own creations. Nevertheless, before making any big decisions or engaging in any significant uses of creative outputs produced at work, it is wise to consult your own institution’s IP policy. Many universities also have copyright officers, often based in the main library, who can help staff with copyright queries.

What about work created with non-academics or subject to contract?

Sometimes, as creators working within academia, you might collaborate with creators working outside of academia. Who owns the resulting work? The Copyright Act is clear that when contributions to a whole work can be separated out, then those separate parts will be owned by the associated creators. So, for example, if an academic creator writes the music for a song with a non-academic creator who contributes the lyrics, the academic creator (or their institution) will own copyright in the musical work and the other creator will own copyright in the lyrics as a written work. It is only when individual contributions truly cannot be separated out that they will be owned jointly. In these cases, how copyright is managed in the work as a whole will be subject to negotiation and agreement.

Throughout their academic careers, many creators will enter into contracts in relation to their works. Often, these are publishing agreements. It is also common for academics to be members of collecting societies, such as Copyright Agency Ltd (CAL) or the Australasian Performing Right Association (APRA), which manage copyright for members and sometimes take control over particular legal rights... . . this is consequently a rather messy and confusing area of IP management. Part of the problem is that rules and practices may differ from university to university and between disciplines.

Throughout their academic careers, many creators will enter into contracts in relation to their works. Often, these are publishing agreements. It is also common for academics to be members of collecting societies, such as Copyright Agency Ltd (CAL) or the Australasian Performing Right Association (APRA), which manage copyright for members and sometimes take control over particular legal rights. Some university IP policies account for these other arrangements. For example, UQ’s policy provides that the licence taken by the university to use scholarly works for the university’s teaching, educational and research purposes is subject to any overriding contractual obligations that the creator owes to third parties such as publishers. Not all IP policies will be clear on this issue, however, and this is consequently a rather messy and confusing area of IP management. Part of the problem is that rules and practices may differ from university to university and between disciplines. If you have questions about your own copyright management and related contracts, the best approach is always to seek some legal advice.  This could be an arts lawyer, your institutional copyright officer or legal team. Arts Law also provides a free telephone advice service for creators.

Commercialisation

Many universities have documents that speak of ‘commercialisation of research outputs’, and the commercialisation objectives of universities are often also reflected in their IP policies. While creative outputs may, on occasion, be commercialised by universities, these are not the core outputs with which commercialisation policies are concerned. It is more typical that these policies are focused on inventions with the potential to be patented. Patent law is a different area of intellectual property to copyright, and covers ‘inventions’ rather than creative works. Thus, the commercialisation focus of universities is more likely to be directed to the ‘hard’ sciences than the arts and humanities and policies can reflect this. Patent law requires an invention to be registered before it is protected, and inventions will only be registered if they are ‘novel’. This is the reason why many policies require academics with IP that might be commercialised to keep this IP confidential. A person can destroy the novelty of their own invention by disclosing it to the public – including through scholarly papers or conference presentations – and therefore prevent it from being registered and protected under patent law.

There is a tension between the requirement to keep this work confidential and academic norms and expectations around publication of research results. Most IP policies require academics to disclose any work with commercialisation potential to the university. Thus, if you have any questions or concerns that your work might fall within the commercialisation requirements of your university, it is best to check this with the relevant commercialisation office or department in your institution. This may even have an added benefit – some IP policies provide that where the university decides not to pursue commercialisation of the work, IP ownership will be transferred back to the academic creator.

Teaching and student materials

It is a sector norm that tertiary education institutions assert IP ownership over any teaching materials created by their staff. But what about student works? Generally, students will own the IP in their own works, except where the student has contributed material to an academic’s research project, such as where the student has been hired as a research assistant.

The biggest issue in relation to student works is not about the university’s interest in those works. Rather, it is important to be aware of how copyright law might restrain what students can do with creative works that incorporate material by others.

The biggest issue in relation to student works is not about the university’s interest in those works. Rather, it is important to be aware of how copyright law might restrain what students can do with creative works that incorporate material by others. Take, for example, film students who create short documentaries for assessment. These documentaries may include third party images, footage or music. The Copyright Act includes a provision which allows students to use this third-party material without the relevant copyright owners’ permission, so long as the use is for the student’s own research or study. This provision will cover creations submitted for assessment, but will not extend to ongoing uses of the work following assessment, such as uploading the film to YouTube or submitting it to a film festival. It is therefore important, in guiding students, to make sure that they are aware of copyright law so that they are not put at risk of copyright infringement claims after their studies.

This primer does not constitute legal advice. Consult your own arts lawyer, your university’s lawyers or copyright officer for help with your specific situation. Arts Law also provides a free telephone service for creators. All information about universities’ IP policies is current as at 23 June 2017.


Dr Kylie Pappalardo researches in intellectual property and innovation law, focusing primarily on the intersection between copyright and creativity and the rights of copyright users. She is a Lecturer in the Law School at the Queensland University of Technology (QUT) in Brisbane, Australia, where she leads the research program on copyright law and creative communities. Kylie’s PhD thesis explored the regulation of ISPs and other internet intermediaries for online copyright infringement. She holds degrees in Law and Creative Writing from QUT and a Masters of Law from Georgetown University in Washington D.C.  Kylie has been a senior researcher with the Open Access to Knowledge (OAK) Law Project and with Creative Commons Australia. She has also worked with the Arts Law Centre of Queensland and served on the board of Youth Arts Queensland.