Collaborations between academia and the business sector give businesses access to the latest research while also enabling them to develop their operations by means of research-based knowledge. Similarly, research at universities may increase its societal relevance in collaboration with the business sector. A common form of collaboration involves PhD students employed by a business partner rather than by the university. Many businesses and higher education institutions (HEIs) are eager to increase the scope of such programs. However, legal difficulties may arise when negotiating the relevant contracts.
In this report, Magnus Strand, associate professor of European law and assistant professor of commercial law at Uppsala University, Linda Wedlin, professor of business studies at Uppsala University, and Thomas B. Schön, Beijer professor of artificial intelligence at Uppsala University, identify the legal issues highlighted by HEIs in relation to these kinds of collaborations. The report analyzes the contracts used and the practices adopted by various HEIs for collaborative projects. The researchers conclude with a number of recommendations that they believe could increase collaboration.
RESULTS AND CONCLUSIONS OF THE REPORT
- The analysis of contracts governing collaboration indicates that the vast majority of PhD students are employed directly by the business partner in question, which thereby assumes the role and responsibilities of being the employer. The contracts offer various solutions if the PhD student for some reason ends his or her employment with the business. Despite these differences, it does not seem difficult to find working solutions for these issues.
- The various contracts differ significantly when it comes to intellectual property created during the course of the PhD process, both in terms of what is stipulated but also how it is stipulated. The basic principle is that the business, as employer, has far-reaching opportunities to obtain rights to the results generated by the PhD student. For university employees, the so-called professor’s privilege entails the opposite: The individual researcher is entitled to retain all rights to the results generated by him or her. However, it is possible to deviate from these principles by contracting.
- In more or less all of the intellectual property clauses reviewed in the report, HEIs retain the right to use research results for further research as well as for education.
- The intellectual property clauses represent different views on the duration of a grace period that the PhD student must offer the business before he or she may publish research output. The most common is three months, but periods span from one to four months.
- In addition, contracts exhibit significant variation in terms of how confidentiality, trade secrets and the researcher’s right to publish have been managed, as well as for how long sensitive information should remain confidential.
- As a result of his or her employment, the individual PhD student undertakes not to disclose any trade secrets. However, this is complicated by the principle of public access to official records that applies to state-owned universities. This, in turn, means that documentation is largely made public. HEIs tend to be uncertain about what to do in cases when these issues are not clearly addressed in the contracts, and there is great variance in the reviewed contracts.
- Some contracts give businesses the right to review and possibly delete what is considered confidential or sensitive information. However, exactly how to decide what is confidential and what is not differs significantly, as well as what to do when such information exists.
RECOMMENDATIONS IN THE REPORT
- HEI top management should stimulate and actively participate in intra-HEI discussions regarding responsibilities, roles and goals with regard to collaboration.
- HEI lawyers should be tasked with creating common, nationwide forums concerning collaboration, including exchanging experiences and establishing common model clauses for collaboration contracts.
- The Swedish Parliament should initiate legislation on co-ownership over intellectual property rights, thereby creating clear optional rules.
AUTHORS
Magnus Strand, associate professor of European law and assistant professor of commercial law at Uppsala University
Linda Wedlin, professor of business studies at Uppsala University
Thomas Schön, professor of artificial intelligence at Uppsala University