JISC

As the UK, in line with other advanced economies, increasingly moves from a resource-based to a knowledge-based economy UK government and EU policy has increasingly recognised knowledge and innovation as the main driving forces of economic growth, social development, and job creation. Higher and Further Education Institutions (HEIs and FEIs) are significant sources of that knowledge and innovation, and therefore the process of transferring that knowledge from education institutions into useful social and business applications has become an important issue. This study looks at a discrete part of that process.

Executive summary

Context of the study

Innovation and Knowledge Transfer  

Although knowledge and innovation are now considered the main drivers for national competitive advantage, concern remains as to the UK's efficiency in transferring knowledge and knowledge-based Innovations from its public sector research base. The Lambert Review, for example, stressed the importance of improving industry exploitation of university research if the UK is to remain ahead of global competition (Lambert, 2003). HEIs and FEIs have been deemed to be 'the great, largely unknown, and certainly underexploited, resource contributing to the creation of wealth and economic competitiveness'.

Therefore, HEIs and FEIs have been encouraged to broaden their role by engaging with business and the community, as well as carrying out their more traditional roles of research and education, and serious analysis has been devoted to unpicking the barriers that exist between business, on the one hand, and HEIs and FEIs on the other. A range of policy and funding initiatives has been launched to improve the efficiency of the knowledge transfer process and dismantle barriers to business and community engagement (BCE) with HEIs and FEIs. Nonetheless, the jury is still out as to whether these initiatives have achieved the goal of effectively using this under-exploited resource.

Innovation and Information & Communication Technology

In the context of the debate as to how to improve the sharing of knowledge, an important facilitator of innovation and knowledge transfer has, perhaps, received less attention – certainly in terms of policy development in the UK. This is the role that information and communications technology (ICT) plays in the process. Surprisingly little attention has been given to what could be unleashed in terms of business and community benefit by unlocking some of the digital assets that are taken for granted in the public sector teaching and research base.

ICT: an agent for Economic and Social Innovation

If innovation is the key to unlocking the potential of a knowledge-based economy, and the main focus for generating Innovation is knowledge arising from publicly-funded research, then the ability to transfer or share knowledge rapidly, through the effective use of ICT, has major benefits (see reference[ iv ]). Many of the new and emerging socio-economic theories of Innovation stress the fundamental business benefits that may be gained from the use of ICT and digital assets.

Likewise, if social Innovation is the key to unlocking the potential for regeneration and social inclusion, then the ability to use publicly-funded ICT infrastructure and digital assets effectively may also produce major benefits in the context of FEI and HEI community engagement. An example of the recognition of this in public policy and funding is that of the Digital Challenge initiative.

Barriers to the use of Innovation ICT and Digital Assets

Therefore this study focuses on identifying the barriers to the use of publicly-funded ICT infrastructure and digital assets for BCE. The expression digital assets has been used to cover a broad range of ICT infrastructure, digital tools, digital data and right to use these. Specifically in this study these include:

• Software created by or licensed to HEIs and FEIs
• Data from databases created by, or licensed to, HEIs and FEIs
• Services such as JISCmail
• Connectivity via publicly-funded, private networks such as JANET

As many of the perceived barriers to effective BCE appear to be legal in nature – issues surrounding the ownership of, and rights to use, intellectual property; State aid; contractual restrictions; and data protection and privacy, this Study looks at these legal issues. However, it is important to realise that non-legal factors often create or exacerbate some of the perceived legal barriers to effective BCE, as well as being barriers in themselves. These include non-legal issues related to policy, strategy, organisation and culture. Therefore, this study also looks at these non-legal issues.

Reason for the study

As one of its strategic aims, JISC is addressing the issues involved in the use of ICT in UK HEIs and FEIs Third Stream or, as it is now called, Business and Community Engagement (BCE), activities. For the purposes of this study, BCE is any activity that takes place between an HEI or a FEI and individuals and organisations external to that HEI or FEI. BCE includes knowledge transfer, work-based learning, community links, outreach, Continuing Professional Development (CPD), employer engagement, wider participation, and lifelong learning.

JISC Legal has been tasked with exploring the legal issues involved in the use of ICT in BCE activity in the UK's higher education and further education sectors. In particular JISC Legal has been tasked by JISC, on behalf of the Higher Education Funding Council for England (HEFCE), to conduct a study on the issues around the exploitation of publicly-funded ICT resources, services, infrastructure, and intellectual property with the specific aim of producing definitive guidelines for UK HEIs and FEIs seeking opportunities to develop and exploit those ICT assets as part of their BCE activities.

Summary and conclusions

With one exception, the major barriers to effective BCE activity are not legal in nature. The biggest of these major, non-legal barriers is that BCE is still not considered a priority by many institutions and by many of their academic and other staff, as to them it is something of a Cinderella activity. This is particularly felt by those engaged in the community engagement component of BCE.

Those legal issues that do exist, involving intellectual property rights, data protection and privacy, and contractual restrictions on the use of software, databases and ICT infrastructure, can be overcome with foresight and forward planning and, sometimes, additional financial resources.

Organisational failure to determine policy, to educate staff, and to anticipate and deal with issues related to BCE militates against foresight and forward planning; if these failures could be resolved many issues that are perceived as legal could also be resolved.

The legal issue that cannot be resolved, without legislative change, is the dichotomy between the need of the knowledge-economy to benefit businesses and the wider community through knowledge transfer by HEIs and FEIs and the fact that State aid law, subject to certain exemptions, prohibits the provision of aid or assistance from State resources in a way that favours some enterprises or undertakings over others.

This study contains a set of guidelines that identifies the issues that HEIs and FEIs involved in knowledge transfer and BCE need to take into account and recommendations as to how some of the barriers to effective knowledge transfer may be overcome. This study cannot recommend how to overcome the State Aid dichotomy, but there is a role for JISC Legal in helping institutions to understand how to comply with State aid law.

The Role of JISC

If the role of ICT is key, as this study intimates, it is evident that the providers of publicly-funded infrastructure and services, such as JISC, have the potential to play an extremely important role in supporting HEIs and FEIs engagement with business and the wider community. Therefore, the crucial question for JISC is how to unlock barriers to the use of their infrastructure and services for BCE activities.

Some of those barriers are detailed below. If key amongst these barriers is the perception in some quarters of JISC's constituency (that is those within HEIs and FEIs responsible for digital resources and ICT infrastructure) that BCE activity is merely peripheral to the mainstream activities and goals of institutions, then JISC can clearly play an important role as a conduit for promoting the relevance of BCE. This is primarily and a strategic and cultural matter.

Further JISC – and particularly JISC Legal - can play an important role in terms of clarifying any legal confusion as to what is permissible in terms of the use of publicly-funded ICT infrastructure and digital assets. It is important that this information be more effectively disseminated to both BCE practitioners and those within institutions that are responsible for running and maintaining digital and ICT resources.

Summary of recommendations

The rights to use for BCE activities and to exploit software that institutions have licensed-in, appears to causing needless problems - problems which could be overcome with foresight and planning.

• It is recommended that institutions ensure that their procurement and computing services departments consider BCE activities when licensing-in software and negotiate appropriate - less restrictive - terms.

Likewise, libraries should consider the potential use of licensed data for BCE and KT activities.

Whilst this may increase costs it would greatly ease potential legal problems related to their use for BCE purposes. Ultimately, this comes to an issue of strategic intent – the preparedness to meet such additional costs – and the organisational co-ordination required. 

The use of open source code and open source licence terms is also a complicating factor in KT activity, specifically that related to software commercialisation. This may result in barriers to knowledge exchange and unforeseen liability. Yet the use of open source licences is encouraged by JISC, perhaps without fully appreciating the consequence for KT activity.

• It is recommended that JISC review its policy in this respect of open source software.
• It is also recommend that JISC's terms on ownership of IP are clarified and that through the Funders Forum JISC encourages a common approach to IP ownership, essentially allowing the institutions to own the IP they have created.

There is a great deal of confusion over the issues of using publicly-funded networks such as JANET for BCE. Indeed this was seen as the most intractable problem in the surveys. This confusion is not aided by the range of acceptable use policies that apply and the misconception that the JANET Acceptable Use policy is the primary policy that determines the use of JANET for BCE activity.

• It is recommended that the JANET Connection Policy be circulated with clarification as to what this allows by way of BCE activity
• It is recommended that the JANET Connection Policy be circulated around the BCE and KT networks, such as AURIL and UNICO
• It is further recommended that JISC encourages HEIs and FEIs to review their own Acceptable Use policies (which often appear to be the real culprit in restricting use for BCE activity)
• It is suggested that the JANET Support Manual could be more helpful in guiding institutions towards formulating policy sympathetic to BCE
• It is recommended that JISC promotes a model Acceptable Use Policy that takes account of BCE activity

It is clearly the case that BCE activity draws institutions into sailing closer to the wind in terms of State aid regulations. Also it is evident that there is little clarity in the knowledge transfer and BCE practitioner community of the legal implications of State aid.

• It is recommended that at a minimum JISC Legal should focus on providing more information to the KT practitioner community, via its representative bodies, and to its constituency, via Inform, on the subject of State aid and the effective use of the  existing block exemptions [PDF] that allow limited State aid to be provided in certain circumstances and the  general block exemption [PDF] expected to be issued by the European Commission in the summer of 2008 ()

At a maximum – but more controversially - JISC (and bodies such as HEFCE) may wish to discuss with bodies such as AURIL the implications of the proposed general block exemption with a view to providing input to the process with a view to aiding BCE activity.

Institutions should make use of guidance on legal matters from JISC Legal on State aid from the Department for Business, Enterprise and Regulatory Reform and the European Commission on Data Protection and Privacy from the Information Commissioner's Office and on intellectual property from the UK Intellectual Property Office All these are free and much is available online.

• It is recommended that JISC publicise its existing advice on data protection and on data sharing
• It is recommended that JISC promote more widely the advice and assistance that JISC Legal is able to provide, and that JISC Legal provides (or JISC funds others to provide) training for BCE practitioners on the application of legal principles to their activities
• It is recommended that JISC promotes more widely the assistance that is already available, such as the Lambert Toolkit, the guidance and courses offered by AURIL CPD and PRAXIS and guidance from UKIPO on intellectual property
• It is recommended that JISC Legal prepares guidance and information on State aid that is specific to academic institutions and their BCE activities

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