2 de marzo de 2017
Confidentiality for universities
One of the main purposes of universities is to promote access to knowledge. However, it is sometimes necessary to limit its dissemination to allow its proper development and exploitation. For this reason, it is necessary to have policies of confidentiality and controlled dissemination consistent with the way knowledge is to be exploited.
- Knowledge as intellectual property
Within academic institutions, knowledge is generated by teachers, researchers, and students. This is expressed by specific products determined by the field in which they perform. Thus, teachers and researchers give lectures, produce scholarly articles, and write research papers related to their field or the research of the students they oversee. On the other hand, students generate knowledge through their papers, designs, workshop projects, inventions, audiovisual works, software, and other intellectual creations. There are then several ways in which knowledge is created and it can be protected by either copyright or patents.
Regarding copyright, both Law 23 of 1982 and the Andean Decision 351 of 1993, point out that copyright covers original creations of human intellect, capable of being reproduced. Nevertheless, it is vital to have means to proof the authorship. This was observed in the decision of the Criminal Chamber of the Supreme Court of Justice, ruled on May 28, 2010.
The facts analyzed by the Supreme Court refer to the scholarly article entitled “Giovanni Quessep: el encanto de la poesía”, written by the now former college professor, Luz Mary Giraldo. The article was accused of plagiarizing the thesis titled “El Mundo Poético de Giovanni Quessep”, written in 1996 by Rosa María Londoño Escobar, former student of Luz Mary Giraldo. Rosa Maria´s work reproduced excerpts of the thesis of her former student without using the bibliographical references. To this, the defense argued that
the ideas and grammatical form of Rosa María Londoño in her work corresponds not only to those of Luz Mary Giraldo but to a very particular style of analyzing the poetic world of Giovanni Quessep.
In this sense, the professor would have given her original analysis about the poet in her class, but such analysis was only fixed for the first time in the 1997 article. This way, the student would be responsible of plagiarism. Nonetheless, the Court considered Rosa Maria only “took the mentioned above as inputs, to create an original work, poured through her particular literary form, in a broad intellectual development”. Therefore, it considered that it was the student who expressed the ideas creating an original work. Consequently, the Court “did find plagiarism by the professor, regarding the work elaborated by the student, since she took extensive paragraphs of the thesis … for the elaboration of the article on a connoted national poet …”.
The case exposes that even though authorship is recognized to the person who grants a work with originality, authorship still needs to be proven. It is possible that the professor had given originality to a description of the poet, but by failing to fix it on a reproducible medium, she lacked of any evidence to support her argument. This reflects the importance of maintaining knowledge confidential until it gets properly embodied.
Another aspect of copyrights which concerns confidentiality is the moral right for unpublished works. This is defined by literal G of article 8 of Law 23 of 1982 as those which “ha[ve] not been disclosed to the public”. But this does not imply that the work must be kept in the strictest secrecy. It refers to the fact that the work has not been communicated publicly through any act, by means of which access has been granted to a plurality of people. Its purpose is then to allow the author to decide whether the work is to be known by the public.
Moreover, the importance of unpublished works right in a university corresponds to a frequent requirement in calls for projects and contests. It is common that in different competitions participants are required to submit unpublished works. Likewise, the classification of researchers made by Colciencias requires that scholarly articles, books, and some results from researches and/or creations, to be previously unpublished. However, many of these products are the result of class projects, conferences or even lab researches involving several people. For this reason, it is mandatory for universities to develop policies of confidentiality and controlled disclosure which will allow them to preserve the unpublished nature of works.
On the other hand, unlike copyrightable works which are deemed protected from their creation, inventions require to exhaust a process of recognition before the national patent office. In Colombia, this function is fulfilled by the Delegatura de Propiedad Industrial de la Superintendencia de Industria y Comercio. The office examines whether the invention meets the patentability requirements of novelty, inventive step, and industrial application – also referred to as utility. If they are met, the patent, utility model, or industrial design is then deemed prtected. And only from that moment the inventor or designer acquires exclusive rights over an invention.
Between the three requirements for patentability, novelty is the one that must be kept in mind by scholars. This is because a novel invention is the one that “is not within the current state of art by the time the patent application is filed before the competent national office for its registration, recognition or concession”. Correspondingly, state of the art refers to all the knowledge available by lawful means. In consequence, the untimely disclosure of an invention through a scholarly article or in a fair within the University, may impede the recognition of the patent.
Thus, the prosecution process for a patent, utility model, or industrial design, requires to limit its disclosure while the application gets filed. This implies that the novelty requirement can become a limitation to access knowledge, at least for some time. E.g., a biology student who does not want to disclose her degree project because it involves a process to improve fertility of farm animals, which could be patented. Maintaining a strict confidentiality policy would inhibit the student even from being graded. It is therefore mandatory to have clear rules on disclosure to allow some access to knowledge without damaging a possible economic exploitation of scientific research.
- Confidentiality and controlled disclosure policies
To develop a policy on confidentiality and controlled disclosure – that will not affect the purpose of generating knowledge by universities – there must be awareness of the boundaries of the unpublished works right and novelty. This will allow a margin of controlled disclosure that will not affect the subsequent exploitation knowledge.
As for the unpublished works right, copyright law does not require absolute confidentiality. That is why a work may be exposed to teachers or jurors, as long as disclosure is limited to specific people. However, it would not be possible to publish a laureate thesis since this is considered an act of distribution and public performance, making works lose their unpublished characteristic.
As for inventions, the Andean Community Court of Justice has pointed out that in order to lose novelty, “the dissemination of information … must be detailed and sufficient, so that a person skilled in the art can use it … in order to exploit the invention”. In that sense, it is possible to disclose an invention when the published information is not sufficient for an expert to be able to replicate it. This means that documents produced from the invention – as scholarly articles or brochures for fairs and exhibitions – could reveal general aspects such as the technical problem. What is important is to avoid uncovering what would allow others to reproduce the invention.
Another aspect that may be included in a confidentiality and controlled disclosure policy is the execution of non-disclosure agreements with anyone who will have access to the copyrighted works and inventions. These are contracts governed “by the free will of the parties so it is them who dictate what is to be considered confidential. Even so, the contract must determine – or make determinable – what information will be treated as confidential”. This seeks to define the scope on the duty of confidentiality. In this sense, it is possible to include clauses establishing obligations regarding copies of unpublished works or reports of the inventions. Custody responsibilities on copies held by the academic institution may also be set in these agreements to prevent third parties from having access to them.
Finally, confidentiality and controlled disclosure policies can also be used for internships. Some companies must reveal confidential information – such as trade secrets – to their employees for them to develop their functions and therefore require non-disclosure agreements. However, in the case of students, the possibility of disclosing confidential information in school papers may discourage companies from hiring them. Therefore, the existence of a policy of confidentiality and controlled disclosure from the university will provide students with access to the knowledge that these companies may offer.
The development and eventual exploitation of works and inventions produced in universities justifies that in some occasions its disclosure should be limited. Think of a film student who intends to use the film he produced at the university, to participate in a festival for unpublished films. It may also happen that an environmental engineering student wants to patent the waste disposal process that he developed as a degree thesis and does not want to lose the novelty by making it public. The same can occur when the results of student projects must be published by professors or researchers in scholarly articles. Hence the importance of having clear rules on disclosure that do not imply an exaggerated access to knowledge, but rather promote it.
 Andean Decision 351 of 1993. Article 3º “work” means any original intellectual creation of artistic, scientific or literary character susceptible of disclosure or reproduction in any form;
 CORTE SUPREMA DE JUSTICIA, Sala de Casación Penal. Sentencia 31403 de 28 de mayo de 2010, Magistrado Ponente: Sigifredo Espinosa Pérez.
 RENGIFO, Ernesto. “¿Es el plagio una conducta reprimida por el derecho penal?”, en Revista La Propiedad Inmaterial (2010), No. 14, p. 311.
 Instituto Colombiano para el Desarrollo de la Ciencia y la Tecnología Francisco José de Caldas –
Colciencias, Modelo de Medición de Grupos de Investigación, Desarrollo Tecnológico o de Innovación y de Reconocimiento de Investigadores del Sistema Nacional de Ciencia, Tecnología e Innovación, Año 2015
 RENGIFO, Ernesto. “Novedad”, en Derecho de Patentes (2016), Universidad Externado de Colombia, Bogotá D.C., p. 144.
 Tribunal de Justicia de la Comunidad Andina. Proceso 101-IP-2011, 9 noviembre de 2011.
 GUZMÁN, Diego. “Secreto Empresarial”, en Derecho de Patentes (2016), Universidad Externado de Colombia, Bogotá D.C., p. 947.