Managing Ownership of Copyright in Research Publications to Increase the Public Benefits from Research
| Published date | 01 March 2024 |
| DOI | http://doi.org/10.1177/0067205X231213676 |
| Author | Kathy Bowrey,Tom Cochrane,Marie Hadley,Jill McKeough,Kylie Pappalardo,Kimberlee Weatherall |
| Date | 01 March 2024 |
| Subject Matter | Articles |
Article
Federal Law Review
2024, Vol. 52(1) 3–33
© The Author(s) 2023
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DOI: 10.1177/0067205X231213676
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Managing Ownership of Copyright in
Research Publications to Increase the
Public Benefits from Research
Kathy Bowrey*, Tom Cochrane**, Marie Hadley***, Jill McKeough
†
,
Kylie Pappalardo
‡
and Kimberlee Weatherall
§
Abstract
Producing and disseminating knowledge is core university business and a collaborative, global
activity engaging multiple stakeholders including universities, researchers, governments, Indigenous
communities, commercial bodies and the public. While ownership of university inventions attracts
scholarly and policy attention, effective management of copyright in research outputs is also
necessary to maximise the benefits of publicly funded research, but often neglected. This article
explains current dynamics in academic publishing and research ownership. It seeks to explain the
complex interface of copyright law, university policies, academic customary practices, Enterprise
Bargaining Agreements (EBA), research funder mandates and policies, the guidelines and policies
that pertain to Indigenous research, and publishing contracts. The article concludes with proposals
for copyright management to maximise opportunities for greater public benefit from Australian
research.
Accepted 30 August 2023
I Introduction
This article is about the surprisingly complex question of ownership of copyright in research outputs
of Australian universities. Ownership confers control: the owner of copyright is the person or entity
who decides who can copy and communicate research in its final, peer-reviewed and tested form, for
what purposes and at what cost. Unfortunately, as we show in this article, across the Australian
university system there is no one clear answer to the question of who owns copyright when
university employees and others working in or with the university write up their research.
* Professor, Faculty of Law & Justice, The University of New South Wales.
** Emeritus Professor, Queensland University of Technology.
*** Lecturer, Newcastle Law School, The University of Newcastle.
†
Emeritus Professor, UTS Law School, University of Technology Sydney (UTS).
‡
Senior Lecturer and DECRA Fellow, QUT Law School, Queensland University of Technology (QUT).
§
Professor of Law, The University of Sydney Law School, University of Sydney (USYD). This research has been supported by
the Australian Research Council, DP200110578, producing, managing and owning knowledge in the 21st Century University.
Researchers are generally left on their own to muddle through, and negotiate with —or more often,
simply sign copyright over to —the publishers on whom they depend for the publications that will
secure and enhance their career. This allows the increasing accumulation by commercial publishers
of both research, and data about research and its quality and impact. The failure of Australian
universities to take the lead on managing copyright imposes costs on our research system: money,
but also confusion on the part of researchers, and frustration of our collective ability to achieve the
overall goals of Australia’s research system and policy for the public at large.
When academics such as ourselves publish research, we have a number of goals.We want to publish
research in ways that establish its quality. But we also want to widely disseminate and communicate that
research to increase its impact in the world. By neglecting the management of copyright and handing
research outputs over to publishers, the university sector gives those publishers control over how and to
what extent Australian research is disseminated. This directly affects the public’sreturnoninvestment
for publicly funded research. Publishers have the power to decide how research is communicated, for
what purposes and at what cost to universities and to the ultimate funders of rese arch, including the
Australian public. With the introduction of ‘Read and Publish’Agreements in Australia and other
developments, research publishing is currently at an inflection point, where previously free and open
circulation of knowledge in the form of institutional repositories an d tolerated open access (‘OA’)
publications could be fully incorporated into commercial publishing models and logics —open,
perhaps, but at considerable financial cost and only by making researchers and others more beholden to
publishers and the commercial terms which they set. A better understanding of the foundations of
ownership of copyright in research publications, and more strategic management of that copyright, has
the potential to free Australian universities and academics of an increasingly expensive dependence on
commercial publishers to achieve their research goals.
Part II of this article describes the various competing objectives that must be managed by actors
within Australia’s research system: universities, researchers and others. Questions of copyright own-
ership can only be understood in the context of these larger forces. A core argument of this paper is that a
more coherent, holistic and strategic approach to copyright management is needed, even as the sector
seeks to preserve important principles such as academics’freedom to choose where they will publish.
Part III of this article examines the shaky foundations of publishers’assertions of copyright ownership by
picking apart the complex intersection of practice, policies, contracts and legislation that seek to govern
the activities of academic researchers. The analysisisbasedonresearchconductedaspartofan
Australian Research Council (‘ARC’) Discovery Project examining the intersections between Australian
research policy and intellectual property (‘IP’) law, including an anal ysis of university-level policies
across six Australian universities and fieldwork (qualitative interviews) with research practitioners at all
levels across nine Australian universities.
1
We then outline alternative methods for copyright man-
agement founded in core copyright doctrines that allow ownership and control to be divided so thatthe
benefits of copyright can be maximised. In making this argument, we draw on statutory interpretation
and a review of case law, and university policies and Enterprise Bargaining Agreements (‘EBAs’), as
well as the qualitative interviews. In concluding, we make an argument that, sector-wide, Australian
universities should take advantage of doctrines that allow copyright ownership to be divided, by
1. Australian Research Council, DP200110578,producing, managing and owning knowledge in the 21st Century University.
Fieldwork cited in this article has been carried out in accordance with QUT Ethics Approval Number 2000000609. Our
interview participants included individual active researchers, university and faculty research leadership (such as associate
deans research), professional research support staff (central and school/faculty based) and library staff (where respon-
sibility for the institutional repository sits in many institutions). While we draw on that material for this article, more
comprehensive reporting on the fieldwork is reserved for future publications.
4Federal Law Review 52(1)
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