This series of articles is published in the Limnology and Oceanography Bulletin and on the ASLO website. The ASLO Professional Ethics Committee receives and deals with inquiries regarding ethical dilemmas and issues, and selected topics will be published here.
Do you have a question? Contact the Professional Ethics Committee at firstname.lastname@example.org.
An ASLO member recently contacted the Professional Ethics Committee with the following scenario. A principal investigator and several other colleagues write a proposal together. The proposal is not funded and is put away. Later the PI finds out that one of the other authors has handed the proposal to a graduate student to pursue as a dissertation topic. This co-author did not inform the PI or any of the other authors of this action. Did this author act illegally, unethically, or merely discourteously? This issue falls clearly into the realm of intellectual property rights. Three subsets of intellectual property law are relevant: copyright law, patent law, and trade secret law. These laws vary by country, and members are advised to consult their national copyright and patent offices for guidance.
First let us deal with copyright law. What are the rights of an individual author regarding a document that has multiple authors? In the United States, copyright protection is created automatically upon the creation of any work of original authorship fixed in a tangible form of expression (U.S. Copyright Office 2006). It is no longer necessary to register a work with the U.S. Copyright Office, although registration is advisable if legal challenges are anticipated. If a work has multiple authors, all authors share jointly in the copyright, regardless of each individual's level of contribution (Academic Senate of the California State University 2003). Each author shares equally in the ownership and control of the work unless otherwise agreed. One of the specific rights granted to copyright holders is the right to make derivative works that borrow substantially from the original copyrighted work (Academic Senate of the California State University 2003). Furthermore, the ideas expressed in a copyrighted work are not protected, although specific descriptions or illustrations of the ideas are protected (U.S. Copyright Office 2006). In the absence of a copyright agreement stating otherwise, the author who passed on the proposal to the student had full rights to the work and was legally entitled to do so.
Next let us deal with patent laws. Do these laws protect the ideas themselves as opposed to specific descriptions of those ideas? The answer is no. According to the U.S. Patent and Trademark Office (2006), "A patent cannot be obtained upon a mere idea..." If the proposal in question contained descriptions of "any new and useful process, machine, manufacture, or composition of matter", then these things may be patented. In the absence of a patent, however, the machines or processes described in the grant are not protected, and the author had the right to pass them on to the student.
The third applicable area of law concerns trade secrets. A trade secret may be a confidential formula, pattern, or other method or device used in doing business that has the potential to provide financial gain for its owner (Wang, Hartmann, and Gibbs 2006). Assuming that the proposal in question was of academic interest only, then trade secret law does not apply and the author had the legal right to pass it on. If the proposal did contain information from which the authors stood to profit financially, then it must be determined whether this information constituted a trade secret. There is no clear test to determine whether information constitutes a trade secret, although one criterion used is the extent to which the holder of the trade secret seeks to protect the information's secrecy (Wang, Hartmann, and Gibbs 2006). The fact that the proposal was already submitted to a funding agency suggests that it contained no trade secrets, and therefore would not be protected under trade secret law.
In passing the proposal on to the student, the author clearly acted legally, but did this person act ethically? The ASLO Code of Professional Conduct states that members have the responsibility to "discuss and follow guidelines for the ownership of data, responsible authorship, and acknowledgment of contributions by others". According to the code, the authors should have discussed copyright issues before embarking on a joint project. Failure to do so resulted in confusion over ownership of the copyrighted material. Discussion of ownership rights should not be limited to the initial phases of the project, however. The author who passed on the proposal should have discussed his/her intentions with the other authors, giving them a chance to discuss their plans for the work.
What is the take-home lesson? Clarify intellectual property rights issues prior to beginning a multiple researcher endeavor. It will save all authors trouble in the long run. In this case, it appears that ethical and collegial behavior would have included a discussion of the intended use of the multi-authored work with the other authors.
Academic Senate of the California State University. 2003. Intellectual Property, Fair Use, and the Unbundling of Ownership Rights. Long Beach, CA. 125 pp. Available online.
U.S. Copyright Office. 2006. Frequently asked questions about copyright. Available online.
U.S. Patent and Trademark Office. 2006. What can be patented? Available online.
Wang, Hartmann, and Gibbs. 2006 Trade Secrets. Available online.