[Occasionally, we like to revisit posts from days gone by that either (1) are always relevant, or (2) are the subject of recent questions received by our office. Today, we’ll look at publication restrictions and the various ways they can be addressed.]
Originally Published June 13, 2012
Speak with a PI regarding the terms of a pending contract, and more often than not you’ll be told that “[clause at issue] isn’t really important because there’s no way I’ll be performing [restricted activity].” Intellectual property, data sharing, you name it. . .the Investigator generally just wants to get the agreement signed so that he/she can get cracking on their anticipated duties. It’s all well and good for a PI to weigh in, and sometimes their thoughts are even enlisted, but the ultimate decision with respect to term acceptance generally rests with the head of your ORA.
Occasionally, though, there are terms that certain institutions find mandatory, the so-called ‘deal-breakers.’ In these cases, consent from the General Counsel’s office or similar body is generally required to accept such limitations in a given agreement. For JHU, one of these ‘deal breakers’ is the right to publish the results of a given project. Publication is one of the most important facets of organized research, both for its facilitation of collaboration and its contribution to the career advancement of the author, and JHU strives to ensure that this right is protected in each of its agreements.
That being said, sponsors are sometimes leery of granting blanket publication rights to research institutions. First, the sponsor may be concerned that its proprietary information might be disclosed publicly. Along the same lines, if the research has yielded commercially viable intellectual property, the sponsor may wish to prevent publication until all IP rights have been protected appropriately. In both of these situations, any sponsor concerns can generally be alleviated by providing them an opportunity to review any proposed article prior to publication and request that its confidential information be removed, or even request a short delay so that patent applications can be filed on any included patentable technologies.
However, every once in a while, universities will encounter sponsors who refuse to budge from their offered terms, and demand that any publications be ‘approved’ by the sponsor prior to dissemination. Most institutions have their own internal guidelines to help in their decision, but there are generally three main considerations:
1. Does the sponsor have a legitimate reason for wanting to control publication? Certain defense-related projects require confidentiality, and thus a publication restriction may be viable.
2. Do all of the project personnel agree to abide by the restriction? All parties involved in the research, not just the PI, must be aware of and consent to the restriction and its ramifications.
3. Are any graduate students involved in the project? At the very least, the university must protect the ability to publish a final thesis.
If nos. 1 and 2 can be answered with a ‘Yes,’ and no. 3 can be answered with a ‘No,’ the damage from accepting such terms is likely less than it could be. However, ultimately , your institutional brain trust will weigh the above against its own policies to determine how best to proceed.