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Regulation on handling employees' rights to the results of work and research at the University of Bergen

Background

Changes in the Norwegian Act relating to Universities and University Colleges in 2002 entailed assigning institutions the mandatory task of contributing towards research-based innovation and creativity, in addition to their primary tasks of research, teaching and dissemination of information. Moreover, there are increasing expectations that research results, in addition to application for purely academic purposes, shall also be utilized for commercial ends. This has actualized the issue of who has the right to use research and work results: it is necessary to clarify rights ownership policy and to design legislation to regulate the question of rights to intellectual property.

The University Board adopted the “Rights Policy at the University of Bergen” in June 2009 (agenda item 68/09) The rights policy provides a general framework for handling the issue of rights ownership linked with various categories of research-based work results. The present regulation is rooted in rights policy and provides supplementary provisions for the handling of intellectual property rights pertaining to research and work results.

Purpose

The purpose of this regulation is to clarify the extent of the university’s right to use or exploit research and work results produced by university employees. The the regulation governing the handling intellectual property rights shall contribute towards:

• ensuring that researchers and institutions’ academic freedom is supported and safeguarded
• increasing awareness of the importance of the values that research results represent
• raising awareness of the meaning of safeguarding and protecting the research results that are produced
• creating unambiguous and predictable frameworks for internal and external collaborative partners
• increasing the opportunities for efficient and expedient exploitation of research results in academia, society and business life.

Point of departure

In general, the person who creates a result out of research or work is the owner of the rights to the result unless otherwise established by provisions pursuant to statutes, contract or this regulation. The rules herein regulate the cases in which the university, as the employer, has ownership rights to these research- and work-related results.

If the university enters into agreements with a third party concerning collaboration on research or research funding, including contributory and contracted work, the employee who participates in such projects must conform with any property rights dispositions laid down in such agreements.

In cases where the university has such rights, the institution must see to it that the results are used in the best interests of society. This can be through commercialization or making the results publicly available wherever possible.

Whom does the regulation encompass?

The guidelines apply for all employees of UoB.

Students own the results they generate from their studies or stay at the university, unless otherwise agreed. Upon request from the student, and if the university finds it expedient after the results have been evaluated for commercial potential by Bergen Teknologioverføring AS (BTO - technology transfer), the university can transfer the innovation rights for commercial exploitation. In this voluntary transfer of rights for commercialization, the distribution of rights is regulated by a separate agreement between the student-innovator and the university via BTO. In the case of results that are produced by one or more students and one or more employees together (joint ownership), the university has the right to take control of the employees’ share of the co-owned IPR, in accordance with legislation, any existing agreements and the present regulation. Students who are employed at the university, for example in a project position or as a research assistant, are subject to the same treatment as any other employees in terms of results derived from tasks performed as part of their work duties under the terms of the employment contract.

For guest researchers, the question of intellectual property rights should be clarified by separate agreement.

If an employee has more than one employer, the employers must come to a consensus as to how their rights are to be divided among themselves.

What does the regulation encompass?

The present regulation applies only to results achieved in conjunction with the employee’s contractual employment at the university. Although the regulation encompasses all research and work results, this does not mean that the university will demand control of all rights to results.

Research and work results can generally be grouped in the following categories (the list is not exhaustive):
• Non-fictional productions (such as monographs, textbooks, scientific articles and doctoral theses) and other literary and artistic works
• Teaching and communications materials (such as oral lectures, different types of presentations, written assignments, instructional videos and digital teaching programmes)
• Computer programs
• Catalogues and databases (designing of various systematized collections of information or data)
• Inventions
• Physical materials – all material products (organic, non-organic and biological materials) – including substances, organisms, cultivated growths and materials
• Administrative works (such as fact-finding reports, consultative statements, proposed curriculum/syllabus and teaching plans)

Further information on the handling of rights to various results

Non-fictional works
As a rule, the employees themselves can decide what can be done with their own non-fictional works (such as copying, storage, alteration and publication of monographs, textbooks, academic articles and doctoral theses) In specially justified cases, the university may obtain a non-exclusive, limited right to use such rights. This applies particularly in cases where the university has spent or is investing significant resources in developing the materials. The issue of whether the university is to have such rights must be clarified in advance.

Other literature and works of art
As a rule, the employees themselves can decide what can be done (such as copying, storage, alteration and publication) with their own literary production or works of art. In specially justified cases, the university may obtain a non-exclusive, limited right to use such results. This applies particularly in cases where the university has spent or is investing significant resources in developing these.. (The issue of whether the university is to have such rights must be clarified in advance.

Teaching and communication materials
As a rule, the employees themselves can decide what can be done (such as copying, storage, alteration and publication) with their own teaching and communication materials.

The university has the right to use such materials if:
• they are designed for general use (standardized materials)
• the university has contributed dedicated developmental support in the form of financing, technical assistance or reduced teaching duties
• the university has specially asked an employee to develop these teaching materials
• the university has entered into an agreement with a third party specifically commissioning the materials for use in teaching
• such use is either agreed with the developer of the materials or authorized in some other way

Terms and conditions for university’s right of use:
• The right of use shall not extend any further than can be justified by the university based on the university’s mandates
• The right of use shall not obstruct the employee’s own right of use
• The employee shall have the right to be notified of any changes
• The employee retains his/her ideal protection right (the right to be credited by name)

Computer programs
The university has the right to computer software that is designed by an employee through the work tasks that are encompassed by terms of employment or under assignment from the university. The right shall not extend any further than what can be justified as the university's primary tasks (research, teaching and dissemination of information). Furthermore, the university’s right shall not obstruct the employee’s own right of use, for example, the use of open software licences (open source).

Catalogues and databases
The university has sole rights to use (copy, store, alter and publish) catalogues and databases that have been created through substantial investment on the part of the university. Execution of sole rights shall not conflict with the principle of academic freedom or be a hindrance to making catalogues and databases publicly accessible or otherwise be placed at disposal for research purposes. For other catalogues and databases, the sole rights belong to the employee who produced them, unless

• the university has specially asked an employee to develop these catalogues or database
• the university has entered into an agreement with a third party specifically commissioning the materials
• otherwise formally agreed

Inventions
The university can demand to take over commercial rights to the employee’s patentable inventions, in whole or in part. The use of this right shall not conflict with the principle of academic freedom. The employee is free to prioritize publication, even if this may hinder the opportunity to commercialize the invention. Any postponement for the purpose of safeguarding the rights (for example, sending in the application for a patent) can be agreed. An employee who develops and invention must provide written notification to Bergen Teknologioverføring AS (BTO), cf. Section 5, Norwegian Act Respecting the Right to Employees’ Inventions. If there is a wish to make the invention known to the public, this must be included in the notification. Reference is also made to the section below pertaining to General provisions concerning commercialization of research and work results.

Physical materials
Physical materials produced through the use of university resources are the property of the university and can be freely used by the university for teaching, research and commercial purposes. This does not apply, however, if an agreement with a third party or other’s rights stand in the way of this.

The person who has produced the material has
• The right to access and use for his/her lifetime and has the right to
• Share the material with others (including outside the university) under the following conditions:
1. some of the material must remain at the university, that is, the source cannot normally be deleted;
2. the recipient shall not transfer the material to a third party without the consent of the university;
3. physical objects may only be shared with others for research purposes; sharing for commercial purposes requires a separate agreement;
4. A signed agreement on the use of the shared material must be obtained (the university’s template for Material Transfer Agreement) from the recipient before the material is dispatched.

Administrative works
The university has all rights to administrative work (such as fact-finding reports, consultation statements, curriculum/syllabus proposals and teaching plans).

General provisions concerning commercialization of research and work results

Commercialization activities shall not conflict with the principle of academic freedom. The employee is free to prioritize and opt making the result known to the public even though this may conflict with opportunities to commercialize. Bergen Teknologioverføring AS (BTO) is the university’s commercialization agent and administrator in the interests of the university, cf. agreement and decision of the University Board nos.101/04 and 67/06 respectively.

All employees are encouraged to contact BTO if they have concepts and results that may have the potential for commercialization, cf. www.bergento.no. Pursuant to the Employee Invention Act, employees have a duty to report inventions; it is BTO that is the recipient of such reports on behalf of the university. Pursuant to the Norwegian Copyright Act, it may also be mandatory to report computer software programs and databases. Examples of other results that can be reported are physical objects as well as ideas with a potential to be commercialized, along with results that can be copyrighted, such as trademarks and designs.
BTO will evaluate whether an effort is to be made to commercialize results. The evaluation is done in dialogue with the employee. The employee briefs his/her department head on the case in question when the commercialization process begins.

The employee has a right to a reasonable share of the net revenue from a successful commercialization. The benchmark for revenue sharing is one-third to the employee, one-third to the university and one third to the research environment in which the commercializable result was achieved.

In the event the university does not exploit a research result or pursue commercialization of it by a given deadline, the employee himself/herself may exploit the result commercially by agreement with the university.

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