When a team of researchers is employed by an agency such as an institute or a company, and they find something worth publishing or patenting, whose intellectual property is it?
By the norms followed the world over, it is the property of the agency by default. Other types of understandings are off course possible but that needs to be clarified in the employment contract or the appointment letters. If not, the agency has the right to decide the norms by which credits and any other benefits coming from the intellectual property can be shared and distributed among individuals participating in research. Generally this goes well.
But there is an unusually complex situation in Indian academia. Quite often the fellowships or salaries of the students, project assistants, laboratory assistants and other project related staff are not paid for quite a long time. This can range from a few months to sometimes 2-3 years. The causes for this lie in the inefficient and careless handling of the funding and related paper work by the funding agency and the research organization equally. Interestingly the salaries of faculty, administration and other permanent personnel are almost never delayed. Often the funding agencies and the handling machinery is the same. But they are more careful about the permanently employed people and utmost careless about students and project staff. The reasons of course lie in the nuisance value. Permanent government employees have a history and tradition of having strong associations having fought for their rights and pay-scales. Students and short term project staff are the most unorganized sector workers and therefore get helplessly exploited in a number of ways and the higher ups in academia do not care to improve the situation.
However, the intellectual property angle of this problem remains unappreciated. The institutes hold the rights on intellectual property because they pay their employees regularly. But if that is not happening, the standard IPR norm collapses. Individuals who work without the promised pay can claim the first right on all the intellectual property generated during the time period of their work. The institute cannot claim it because it has not paid. Even if there is any kind of employment contract, failure to pay the salary in time is the breach of contract. If an agency is responsible for the breach of the contract, its right to claim any other benefits from the contract comes under question. The faculty, PIs of the project are getting their salaries regularly, so they cannot claim the IPR. Under such circumstances, the unpaid workers have the first right on IPRs. The institute cannot publish or patent the work or even include it in any of its official reports without the written permission of the unpaid workers. Research is a complex task and it is difficult to decide who contributed what. Often the persons actually doing the work know the subtleties of an experiment much better than their guides happily occupying their easy-chairs. Therefore the norms of IPR sharing need to be pre-decided. Violating these norms would potentially lead to unprecedented legal complications.
The simplest way to avoid any such complications is to pay all research personnel their due amounts in time. The reason this does not happen is lack of motivation to set the system right. There is no other reason that the funding system cannot correct itself. But as long as the institute does not lose anything by being careless, nobody will try to remove the system flaws. Therefore it is necessary that there are at least a few cases whether the unpaid researchers claim rights over the intellectual property and prevent the institute from using any of the research output.
The reason this has not happened so far is twofold. One is that this interpretation of the IPR norms is not known to anyone although logically it is quite straightforward. But even more important is that the sufferers do not have the muscle to challenge the system. They are in an insecure position and fear that the higher ups control all their career prospects. The academia is completely aristocratic in multiple ways. So most sufferers will not dare take any bluntly logical stand. But it is not impossible. I can imagine that someone has to leave when a project ends and there is no hope of continuing. For a person in such a position, there is no risk of losing anything anymore and such a person can block the entire output of the project that he/she was working and prevent the institute from using it in any way. Institutions and funding agencies need to be aware of this interpretation of the IPR law and correct the system in time without any excuse. If that doesn’t happen, the junior research personnel should come out and act. If not in the court of law, then they can come out in the public domain. Let people be aware of the reality. Let common man start asking questions to Directors, Chairs, Heads and PIs, “How many unpaid researchers work under you?” A whip from common man can be the ultimate motivator.