Opinion: Hot issue - Should charities have to cede property rights?

The Scottish Executive has introduced new grants conditions that force charities to sign away the intellectual property rights of any material they produce, such as scientific research, publicity materials and software.

NO - Cathy Maclean, chief operating officer, workwithus.org

We are in receipt of grant funding to provide IT services for other charities, and if this clause were a condition of grant I doubt we would exist. Certainly, our lawyer would have had a field day; it was challenging enough sorting out the intellectual property on software development, without trying to explain to the developers that we were handing their intellectual property over to the Crown. The definition of intellectual property that is "contained in any IT system" belonging to the Crown would put in jeopardy most third sector organisations where IT systems embed data relating to grants. The time, trouble and effort of assembling any intellectual property handover would in all likelihood exceed the actual grant provided.

The biggest impact on charities, if ceded intellectual property rights were actually enforced, would be a dramatic end to the sharing and dissemination of ideas and best practice.

Intellectual property is important in the commercial world, and it is rarely given up. Grants are provided to charities because, by definition, charities have public benefit. I see no value for government or for charities of including a broad-brush requirement to cede any intellectual property generated to the Crown within grant conditions.

NO - Gill Grassie, head of IP and technology, Maclay Murray & Spens law firm

Intellectual property does not just magic itself out of thin air as a result of grant funding or other investment; rather, it requires skill, effort and imagination from relevant individuals, in this case working within the voluntary sector. For that reason alone it seems illogical that all the benefit of intellectual property should be vested in the Scottish Executive. What if the property in question turns out to be an invention of major significance with much broader application - should the voluntary organisation in question not benefit to some extent from this?

A blanket rule to the effect that all intellectual property rights are vested in the Scottish Executive in this way goes too far. Perhaps there should be some mechanism to allow each situation to be taken on its own individual merits. If intellectual property is created and successfully exploited as a result, perhaps some of the grant could or should be repaid to the Scottish Executive.

There is a real danger that such a far-reaching provision would stultify investment in research and development in the voluntary sector, deterring it from striving for excellence.

NO - Jim Jackson, chief executive, Alzheimer Scotland

Charities should not have to cede all the intellectual property rights of the materials created with public funding. In some cases, the materials will be created as a result of many funding sources, including donations.

The charity ought to be able to benefit from what it has created. This points to intellectual property rights being shared rather than vested in the most substantial funder.

Most government grants to voluntary organisations are likely to be for the development of activities that benefit the community rather than for research. Government should be encouraging the organisations it funds to maximise the benefits from the funding. Voluntary organisations should not have to look over their shoulders to see what funding might have to be returned to government.

Research grants are different. Government is entitled to a share of the intellectual property rights that arise from its funding if there is commercial exploitation. Indeed, grant-giving charities may retain some intellectual property rights that arise from their funding of research. The Association of Medical Research Charities provides advice on this subject.

NO - John Halton, technology lawyer, Corporates Group, Cripps Harries Hall

It's understandable that the Scottish Executive would wish to ensure the public can benefit from material generated using taxpayers' money, but this is a classic example of a heavy-handed insistence on "ownership", when what really matters is "ability to use".

The main concern people have about intellectual property ownership in situations like this is often "Will I be able to use this material freely?" And pretty much any right that an owner would have to use intellectual property, or to allow others to do so, can be granted by way of licence without any transfer of ownership.

Other government departments, such as the Department for International Development, use this more constructive and creative approach of leaving ownership with charities and other service providers, while securing wide-ranging licences that make the material freely available for the Government to use and license to others.

This cuts both ways, of course: there may be times when a charity is able to hand over ownership, while receiving back a licence that allows it to reuse the material in future. It's a matter for negotiation in each case, not for the imposition of blanket requirements.

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