There are some places, in university campuses all around the world, where the relentless rhythms of academic life seem to slow down and come to a momentary pause. It is in these moments that the world around students and lecturers comes alive and we notice things that normally escape our attention. There is the CLA Copyright Notice, hanging perilously over the photocopier in the library. A Starbucks cup with the characteristic corrugated cardboard sleeve and the mysterious mention of “patents”, as well as a strange combination of letters and numbers. The logo of the University on a giant billboard advertising an open day - and an ® underneath that seems so out of place. The first page of a new textbook, its characteristic smell of paper and glue, and the enigmatic statement that “The moral rights of the author have been asserted”. Even that PowerPoint presentation in a late afternoon class that catches your attention because it features characters from the Harry Potter saga, along with a distracting reminder that it is “in no way associated with, or endorsed by, J.K. Rowling and Warner Bros Entertainment Inc.”.
As familiar as such momentous observations feel, rarely are their significance and reason d’être fully understood. There is a general awareness of the existence of certain intellectual property rights, in primis copyright and trade marks, and a vague sense of the limitations they impose, mostly derived from notices (e.g. on virtual learning environments, assessment handbooks, etc.) and hearsay. There is frequently a negative attitude surrounding such perceived limitations, seen as unjust, unfair or simply cumbersome and unjustified, especially in the context of education. There is also an instinctual reaction to them, which may take different forms, including disregard, disinterest, anxiety or fear, leading to the misuse, or lack of use altogether, of materials protected by intellectual property rights.
What is missing? First, a precise understanding of the meaning of such notices, frequently drafted with the aim of protecting universities from potential liability, rather than providing clear, intelligible and actionable information. Secondly, and more importantly, an appreciation of the significance of intellectual property and of its importance for our society. Thirdly, a sense of what constitutes intellectual property and how its protection operates, in favour of creators, owners and users. Fourthly, a recognition of the role that intellectual property plays not only in protecting somebody else’s creations, but also our own.
It is obviously unrealistic, and nonsensical, to expect students, lecturers and university staff, on their own, to integrate these four aspects in their perception of intellectual property. It is also arguably unjustified to condemn such lack of knowledge and understanding, or the attitudes that arise from these issues. The complexity and intricacy of intellectual property law, the questionable rationale behind certain aspects of it (e.g. the private copy exception in copyright, the persisting restrictions on the portability of online content services within the EU, despite the progress made with Regulation (EU) 2017/1128, etc.), the different cultural sensitivities towards intellectual property, and the shortcomings in communicating the rights and obligations arising from intellectual property protection are all parts of the problem and should bear the blame for the effects discussed above.
But the single most important issue that needs addressing, especially in the context of educational establishments, is intellectual property education. The idea that such education should be reserved to law faculties, and generally confined to third year optional courses, is highly misguided and, ultimately, contributes to perpetuating a misperception of intellectual property that does not serve the interests of either creators or users. There is a profound need to ensure that future generations, first of all, appreciate the importance of creativity, in all its forms, and are constantly encouraged to cultivate it - which is clearly an issue in contemporary higher education, given the rise in plagiarism and the concerns about the originality of the works of students and, in some cases, academics. Following from this revolution in the cultural attitude towards creativity, it is possible to naturally develop a positive approach to intellectual property law, emphasising its role in protecting creativity and contextualising any limitation as a fairness mechanism that ultimately achieves a balance between fostering cultural and technological progress and allowing it to be enjoyed by our society as a whole. Such educational approach should empower creators and users, especially within educational contexts, to shape the development of intellectual property law, whose nature is to guarantee rights that are fundamental to everyone - the rights of authors and inventors, the right to benefit from scientific progress, the right to cultural participation, the right to education.
Many suggestions could be advanced on how to achieve these objectives. But, at this preliminary stage, the most important step is for anyone involved in higher education to consider two questions:
- How are we fostering the creation of an institutional culture that supports creativity and innovation?
- To what extent do we perceive intellectual property as a tool to enable the enjoyment of fundamental rights by creators and users?
Taking stock of these answers, and prompting a shared reflection about them involving students, lecturers and university staff, is a necessary step to develop innovative and creative approaches to intellectual property education and, ultimately, to create a positive and responsible attitude towards intellectual property in higher education.
About the Author
Stefano is a lecturer in Intellectual Property Law at the Hillary Rodham Clinton School of Law at Swansea University and editor of the Journal of Intellectual Property Law and Practice (Oxford University Press). He previously led the LLM in Intellectual Property for staff of the UK Intellectual Property Office at the University of South Wales and has been named as a research leader of Wales by the Welsh Crucible in 2017. Stefano's research interests focus on the regulation of new technologies, the protection of new forms of creativity, the intersections between intellectual property and competition law (standard essential patents, pay-for-delay agreements, technology transfer), and the role of inventions and inventors in literature and history. He is particularly passionate about IP education and pedagogy, which he sees as essential to the fostering and protection of cultures of innovation and creativity in higher education and in all sectors of our society.
