On Freedom to Disseminate Research and Scholarship
Freedom to disseminate our research and scholarship is one of our most cherished rights and responsibilities. I am happy to share the following important principles with you.
- Ralph D. Amado, Vice Provost for Research
Restrictions on Scholarly Publications
There have been several recent incidents in which companies have attempted to restrict the dissemination of findings by academic researchers (see New York Times, April 29, 1997, page C1). In view of these episodes, the Conflict of Interest Standing Committee has prepared a brief review of University policies regarding restrictions on publication.
Principles and Practice
In principle, the University does not accept any limitations upon the rights of the faculty and staff to disseminate the results of scholarly research that they have conducted. This fundamental right to publish comprises research that is supported by grants, contracts, and sponsored research agreements with commercial organizations, including clinical studies. In practice, certain restrictions apply.
Research sponsored by a commercial organization: Sponsored research agreements from a commercial source often require that an advance copy of the publication be provided to the sponsor 30 days prior to submission for publication. If the company wishes to file a patent, they may request an additional 60 day period before publication for such patent filing. Under unusual circumstances, a company may request a further 30 days, the total not to exceed 120 days. Commercial sponsors are not permitted to revise, delete, or suppress information generated by University researchers.
In some instances, publication requires reference to proprietary information that forms the basis for research conducted at the University, but was provided by the commercial sponsor. Any proposed restriction on the dissemination of such proprietary information must be incorporated into the sponsored research agreement and not left to ad hoc negotiations at the time of publication.
Agreements that may carry restrictions on publication: Inappropriate restrictions on publication may be inserted into drafts of sponsored research agreements (SRAs) and clinical trial agreements (CTAs). Both types of agreements must be processed by an administrative unit of the University, generally the Office of Research Administration, in addition to the Office of the Dean of the relevant School(s). During the approval process, such agreements are reviewed to be sure that they do not violate University policy on publication.
The supplier of materials often requests a material transfer agreement (MTAs) which may require the signature of an administrator who represents the University, usually a staff member of the Center for Technology Transfer. Prior to approval, the Center for Technology Transfer reviews the draft MTA for conformity to publication policy.
Most consulting agreements (CAs) are negotiated directly between a faculty member and a commercial entity. Under these circumstances, the faculty member is responsible to be sure that the agreement does not violate University publication policies.
Agreement among collaborators: If research has been conducted as a group undertaking, it is customary that the program or project director determines the timing and form of presentations, publications, press releases, and other dissemination of information. More formal arrangements may exist for large-scale programs that involve investigators at many institutions, or for clinical studies,
particularly those that involve complex protocols, investigational new drugs, and the like. Individual participants in a project, particularly junior ones, do not have the right to disseminate information without prior permission of the project leader(s).
Advice to Faculty and Staff
In general, faculty and staff protect themselves by having all agreements that may carry restrictions on publication reviewed by an appropriate administrative unit at either the School or University level. All sponsored research agreements (SRAs), and clinical trial agreements (CTAs) require administrative approval and are ordinarily reviewed for conformity with University policies during the approval process. All material transfer agreements (MTAs) should be reviewed by the Center for Technology Transfer before they are signed. Consulting agreements (CAs) usually do not require University approval. However, to protect themselves as well as the University, faculty are encouraged to have draft CAs reviewed by the Center for Technology Transfer when there is any question with regard to appropriateness or wording of the CA.
University of Pennsylvania Policies
The major University documents that deal with commercial restrictions on dissemination of scholarly research are reproduced herewith.
1. From the Handbook for Faculty and Academic Administrators,
Part II.A., Academic Freedom and Responsibility:
"It is the policy of the University of Pennsylvania to maintain and encourage freedom of inquiry, discourse, teaching, research, and publication and to protect any member of the academic staff against influences, from within or without the University that would restrict him or her in the exercise of these freedoms in his or her area of scholarly interest.
(a) The teacher is entitled to freedom in research and in the publication
of results subject to the adequate performance of his or her other academic
duties and to the institutional policies and procedures as set forth in the
research policies of the University."
2. Policy information for potential commercial sponsors of research at the University of Pennsylvania, Almanac May 17, 1983, follows.
Policy Information for Potential Commercial Sponsors of Research at the University of Pennsylvania
The University of Pennsylvania has a long tradition of welcoming support for research projects from commercial sponsors. Such support aids our pursuit of new knowledge and, through the cooperative interactions it spawns, often facilitates the practical applications of such knowledge to the benefit of society.
Modern research universities, such as Pennsylvania, are seen and see themselves as institutions, unique in our community, that engage in sustained inquiries into fundamental areas of the humanities, of science, and of technology without regard to immediate practical consequences, and that promote the free exchange and discussion of the results obtained. As such they are often called upon for technical help and objective advice in meeting the needs of both the public and private sectors. Our policies regarding the conduct of commercially sponsored research agreements, as summarized below, reflect this image of the University. We believe that these policies, in preserving our academic ideals while recognizing the legitimate proprietary needs of the sponsor, provide a sound basis for mutually satisfactory research relationships.
1. General Considerations
The University seeks support for sponsored research conforming to its Guidelines for the Conduct of Sponsored Research which include the following criteria:
a. It is of intellectual interest to the principal investigator, who will usually be a member of the standing faculty, and who will be responsible for the conduct of all or the major portion of the work.
b. It in no way compromises the University's policy of nondiscrimination, nor the freedom of inquiry of faculty members, nor their abilities to disseminate their research findings and conclusions.
c. It is consistent with the University's basic objectives of creating and disseminating new knowledge and is appropriate to the purposes and objectives of a tax-exempt nonprofit educational institution.
In addition, sponsored programs that aid the educational purposes of the University will be especially welcome. Such aid might, for example, take the form of financial support for student theses or dissertations.
2. Negotiation and Implementation of Agreements
a. Every sponsored program must include a formal research proposal. Such a proposal requires the written approval of the cognizant deans and departmental chairpersons. In the case of a proposal having faculty from more than one school, the written approval of the cognizant deans, or Vice Provost for Research, as appropriate, is required. Proposals submitted through an institute must also have the director's approval.
b. Responsibility for negotiating any commercially sponsored research agreement rests with the Office of Research Administration under the general policy guidance of the Vice Provost for Research. A detailed outline describing the administrative structure of the program is required as part of an agreement.
c. The University undertakes research on a best efforts basis, but disclaims any guarantee of results.
d. The University expects full reimbursement of the allowable costs of research, including direct and indirect costs, the latter to be charged at no less than the rate that is applied to grants from the Federal Government. Only in unusual circumstances, and with the express approval of the cognizant dean, will deviations from this policy be permitted.
e. It is University policy not to undertake to keep proprietary information provided by the sponsor confidential, because of the negative impact such an obligation has on free communication of research results within the University and elsewhere. Exceptions to this policy will be considered in cases when the confidential information provided is peripheral to the main intellectual thrust of the work. For example, confidential information can sometimes be handled in coded form, so that results can be discussed without divulging proprietary information. The University reserves the right to refuse to accept proprietary information.
f. All research agreements will be carried out in a manner consistent with existing governmental regulations regarding such matters as human and animal subjects, recombinant DNA, and the use of hazardous and radioactive materials.
3. Publications and Publicity
a. The University accepts no limitations on its right to disseminate all findings and conclusions derived from sponsored projects except when the privacy of an individual is concerned or in the limited sense discussed in sections 2e, 3b, and 4c.
b. The University agrees to submit a copy of any proposed disclosure to the sponsor for review prior to its planned submission for publication. The sponsor may then request a delay in publication, not to exceed three months, for patent or trade secret protection (see part 4). In unusual circumstances, and with the approval of the Vice Provost for Research, a further delay may be allowed, which in no case will exceed one year from the date of initial submission to the sponsor. It is University policy to identify fully and openly the sponsor of the research program, either by acknowledgment in a publication or if such acknowledgment is unwanted, in response to public inquiry. An exception may be made when in the judgment of the Provost such a condition is not harmful to the University nor to the integrity of the research.
c. A sponsor may not use the name of the University or of its employees or agents in any way in advertising or product-promotion activities without the prior written approval of the President of the University.
4. Patents, Trade Secrets and Licenses
a. The University strongly prefers patent to trade secret protection of intellectual property, because patent disclosure is consistent with the University's objective of disseminating new knowledge. Accordingly, patent protection will be sought for a research discovery with potential commercial importance unless both the sponsor and University agree that the discovery is not patentable.
b. The University prefers to retain title to inventions and other intellectual property resulting from sponsored research. This insures that the University will be able to direct vigorous efforts toward transferring the technology for the public benefit. The normal mechanism for this is through royalty-bearing licenses, preferably non-exclusive, though exclusive licensing may be more appropriate in specific instances. Other arrangements for disposition of intellectual property may be negotiated on a case by case basis, provided the University's property rights and the public benefit are protected.
c. When it is determined that trade secret protection is required, that portion of the sponsored agreement requiring such protection will be transferred out of the University as soon as possible, over a period not to exceed sixty days. Such transfer is necessary because the secrecy that trade secret protection requires is contrary to the University goal of openness in research. During the transfer period, University affiliated personnel may serve as extramural consultants to the sponsor. The University will have the right to publish the research developments that occurred prior to the date on which the University agreed that patent protection was unavailable, after a delay of not more than one year to protect the sponsor's interests.
d. In case of trade secret protection, the trade secret will be owned
by the sponsor. The legitimate property interests of the University for
the work performed prior to transfer out of the University will be protected
by an agreed upon formula for royalty payments resulting from commercialization.
a. The University permits extramural consulting agreements between a principal investigator and a sponsor. In such cases the University must be deemed to have a financial interest in any commercialization resulting from the combined sponsored research and extramural consulting activities of the faculty member. To insure a lack of conflict of interest, such agreements will be reviewed by the Vice Provost for Research.
b. The University recognizes the potential problems that could result when research in the same general area is funded by competitors, especially when it occurs within the same department. These problems may include the confidentiality of proprietary information and the desire of a sponsor for exclusive rights to research developments. Such arrangements will therefore be especially carefully considered by the faculty of the department and by the University administration, in order to minimize conflicts of interest.
c. Ownership of a substantial financial interest in a commercial entity by a faculty member whose sponsored research might be supported by funds from that commercial entity raises special concerns about potential conflicts of interest. Such arrangements must therefore be specifically approved by the Provost.
6. Protection Against Liability
a. The University will not be held liable for loss or damage suffered by the sponsor in the course of the research contract association with the University. Furthermore, the sponsor must agree to defend and indemnify the University in the event of any form of liability or claim arising from the sponsored research, except those arising from the University s negligence or willful acts.
b. For research agreements sponsored cooperatively by a consortium of companies the sponsors will bear the burden and expense of meeting any regulatory requirements or obtaining any necessary clearances associated with antitrust issues and will further provide warranties and/or indemnification against any antitrust violations.
7. Additional Information
Additional documents which are relevant for potential sponsors of research at the University of Pennsylvania are: Guidelines for the Conduct of Sponsored Research, Conflict of Interest Policy for Faculty Members, and the Financial Disclosure Policy for Sponsored Projects available from the Office of Research Administration, and the Patent and Tangible Property Policies and Procedures available from the Center for Technology Transfer.
Ed. Note: Since the last publication of this policy in Almanac May 17, 1983, the Vice Provost for Research has updated 7. Additional Information.