Mister Deputy Vice-Chancellor, there are some notable issues affecting students contained within this draft Ordinance. Regulation 11 provides for the arrangements for income sharing to be the same for students as for University staff, which is quite appropriate (I assume the mention of alternative “previously agreed terms” is intended to refer exclusively to terms agreed before the draft Ordinance takes effect).
However, whilst monetary questions are questions that should be answered properly, they are by no means the only issue.
It should be noted that Regulation 2 is not applied to students. At first sight, this might not seem a major omission; however, there are specific aspects of “normal academic practice” that apply to students but might be deemed to conflict with other Regulations. For example, how might a confidentiality requirement affect publication of a thesis? It might be acceptable for an academic with an established position to have an additional delay of one or two years before the publication of some endeavour; for a student, however, the consequences of having to wait for that long could include a serious effect on the next stage of a career. In the context of the remarks made by Dr Mike Clark on 21st October 2003 regarding the Research Services Division’s entering into an agreement that could see the University required to restrict access to student theses, it is insufficient simply to claim that such an effect is not an intention of this draft Ordinance.
I wish further to consider the more general question of the imposition of obligations upon students under this draft Ordinance. A number of contributions to previous Discussions on intellectual property (and indeed the final note appended to the Report we are discussing today) have questioned the principle of it being possible to impose on staff the obligations regarding intellectual property that are proposed. If there can be doubt when considering the advisability of such an approach with respect to staff, then surely there must be more doubt concerning its advisability with respect to students? The specification of terms of employment for a paid employee is somewhat different from the specification of “terms of enrolment” for a paying student.
Moreover, is it really possible that in the case of “a student who refuses to sign” an agreement and who is prevented from taking part in a particular project, “the assessment of her or his academic performance” will be unaffected? I suspect that many students choosing a project in which there is an element of assessment will take into consideration how best to demonstrate “her or his academic performance” to an assessor.
(As an aside, the introduction of a phrase such as “terms of enrolment” seems rather questionable. The legal status of Statutes and Ordinances as subordinate legislation is covered well in two articles by Simon Whittaker in the Oxford Journal of Legal Studies (Vol. 21, No. 1 (2001), pp. 103-128; Vol. 21, No. 2 (2001), pp. 193-217); note should be taken of these, and therefore that using a phrase such as “terms of enrolment” may in fact bring into existence a contract not previously present, probably the opposite effect to that intended.)
I should like now to make two specific points about Regulation 27 of the draft Ordinance.
The first point regards the application of the claim of the University of sole entitlement to the use of its name and arms, where the usage suggests connection with the University. It seems that, for example, University societies (registered or otherwise) could be affected by such a provision. The response I received to a query about the current situation for societies noted that usage is not currently regulated formally, but that it has been customary for societies to use the name and arms of the University in appropriate contexts. It does not seem that there is an objection to usage such as this by parties other than the University, and it seems likely that the possible consequential effects of this Regulation in that respect are not intended.
The second point regards the usage of the University’s arms by University staff commercializing their intellectual property rights under Regulation 5. I should be rather surprised if it were acceptable for a member of an institution to use that institution’s arms for commercial purposes not strongly connected with that institution, and wonder what assistance the College of Arms might be able to give if consulted on the matter.
To finish, I shall give some overall personal opinions. I must remark that I do not agree with the principles regarding the ownership of Intellectual Property Rights on which this Report and annexed draft Ordinance are based, and hence my preference would be that this proposal not proceed at all. I agree with Professor Ross Anderson’s dissenting note and his view that Grace 6 of 21st March 2001 should be repealed, along with his third recommendation made at the Discussion on 21st October 2003 that intellectual property owned but not exploited by the University should in due course revert to its creators.
Lastly, I am slightly concerned about the level of examination that has allowed a draft Ordinance to be published containing repeated instances of “her or his”, a formula that clearly would be unnecessary as a result of Statute K, 4. If such an unusual formula can have passed unnoticed into print, might it not be advisable to check this draft Ordinance again for unintended consequences?