PENELOPE BOOTH wrote:
> Good points - making money from students where will it end? - making
> money from from having gained the experience of teaching them, using
> dealing with them to improve a service, using them to think about
> ideas that you then subsequently use to advantage.......think of
> student doctors and nurses and you get an even more stark picture of
> this........
>
> The drug therapy one is even bigger - using cells to make a therapy
> rumbled on the pharmacy world - after all, is my body my own?
> Supposing that my cells have the capacity to provide a cure for
> cancer.....?
>
The latter of course partly decided, at least for the US, though Moore v
Regents of the University of California - A doctor who obtains DNA, even
without your consent, and uses it subsequently to develop a commercially
viable cure on the basis of it, does have property rights in his discovery.
I (not really a lawyer but hanging out with them a lot) would start
from the other side: undoubtedly, some students have IP rights in their
work. PhD dissertations are the most obvious example. Otherwise they
would need permission to publish them, and at least in the past,
publisher would not have acquired the IP rights they thought they got
when publishing a PhD - indeed, they could be sued by the universities
that supervised the work, an untenable outcome.
As at least some students have IP rights in their work, we would need a
reason to distinguish undergraduate essays from them. One line you could
try is this: in a typical undergraduate essay, the academic asks a
question to which s/he knows the answer. This is a considerable creative
input, sufficient to establish joint ownership. You could press this
further and argue that it is analogous to a ghost-writer contract, where
commercial exploitation rights are implicitly conferred.
Not sure though that this would carry water with a court. The safest
option is to include it in the contract the student signs with the
university, not framed as a transfer of ownership (which may fall foul
of unfair contract terms law) but as a "licence to use essays for
marking purposes in this way".
Depending on the jurisdiction, this still has problems (keep in mind
that despite some international harmonisation, there remain considerable
differences in the approach to IP, especially between the US and Europe.
It is perfectly possible that models such as turnitin are legal in one,
but not the other). In Europe (the UK since the 1988 Copyright, designs
and patents act) the author of a work also has moral rights in his work,
in particular a protection from derogatory treatment, which is what the
students claim here. These rights are inalienable, so the student could
at any time reassert them. Of course, he would then be in breach of his
contract with the university, which would not have to mark his work etc.
But as soon as he has graduated, there is nothing to prevent him from
withdrawing his consent. As turnitin's business model is to store past
papers, this could be a problem for them.
Burkhard
Burkhard Schafer
School of Law
Edinburgh University
Old College
Edinburgh
EH8 9YL
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