15 September 2023

Universities are hot beds of creativity and collaborative research is one of their key activities, with university students and academics routinely involved in interdisciplinary and multidisciplinary collaborations across the institution, or with others.

It is essential for these collaborations to be protected by a contractual arrangement and whilst most agreements (or sets of agreements) are bespoke, there are a number of largely universal issues that are worth thinking about at the outset.

1. Who is involved?

Students are typically involved in research projects, often working together or with academic staff. There might also be third parties involved or students from other institutions / departments. Any agreement should clearly set out the responsibilities, roles and rights of the collaborating parties, with all parties being bound by the same terms and conditions.

If the research / project is being funded, any agreement should also reflect the terms of the funding award and clearly specify who is in charge of distributing funds, managing the project and adhering to third party funding obligations. Funding agreements can be very specific, dictating the level of spend on various aspects of the project, the expected outcomes and the ownership of intellectual property.

We have seen situations where projects have collapsed due to confusion over who is responsible for which part of the project, which can lead to failure to adhere to funding arrangements and lead to the withdrawal or clawing back of funding. These scenarios can be avoided with careful thought at the outset.

2. What sort of agreements might you need?

Parties will often begin with a Memorandum of Understanding, which is intended to describe the bilateral / multilateral agreement between the parties. These are typically preliminary and are generally not intended to create a legal commitment between the parties, but rather to set out the working principles of the relationship. Memorandums of Understanding can be useful in focusing parties’ minds when ideas are in their infancy.

As an idea develops and takes shape, a collaboration agreement and / or research agreement should be put in place. The potential requirement for other agreements should also be considered. For example, a non-disclosure agreement may be required depending on who is involved and would protect the academic institution’s confidential information (i.e., any information, results or know-how that the institution wishes to be kept secret). These can be particularly useful when collaborating with third parties / other academic institutions.

Research sub-agreements may also be required and would deal with the engagement of research partners on specific work packages under a research project. This would typically involve payment to the research partner and would require to be done in accordance with the terms and conditions of any funding. As such, any funding terms should flow through to agreements with research partners.

Every collaboration will be different and there is no one size fits all approach. The agreements listed above often form the bedrock of collaborative projects. Depending on the nature and scope of the project, an entire series of other agreements might be required including clinical agreements (for clinical trials), service / consultancy purchase agreements, or material transfer agreements (which govern the transfer of tangible research materials between two institutions).

3. What about the IP? 

Collaborative research usually means an equitable partnership between different people and institutions. It is therefore important to identify who is bringing what knowledge to the collaboration and what shared knowledge may be generated through the project.

The ownership of IP and the right to use it is an important consideration as it can confer a competitive advantage. If for example the results of a piece of research facilitate the creation of a product that can be sold, ownership of the IP (or an exclusive licence to use it) provides protection for the investment made in developing the project and taking it to market. It is also important to be aware that research work can be unpredictable, in which case it is worth revisiting the IP as the work develops and circumstances change.

From a legal perspective, if an institution (or otherwise) wishes to do something with the outcome of a collaborative project, it must be able to demonstrate that it has the necessary rights and permissions to do so. As such, if there is no mechanism for dealing with IP, it is possible that the outcome of the collaborative research is redundant, with no one being able to exploit it.

Finally, it is worth noting that joint ownership of IP is not always the answer, as this can create a situation where decisions relating to IP and its exploitation require unanimity. As such, a more practical approach may be to set out clearly at the outset who will be able to do what with the IP, ensuring there is no deadlock.

4. Key takeaways

The purpose of a research contract is to set out the roles and responsibilities of everyone involved, and could include students, academics, institutions, and any funding bodies. A well drafted agreement should spell out:

• The scope of the work undertaken
• The responsibilities of the people involved as well as their respective share of technical, commercial and economic risks
• The financial contributions / terms of any funding
• The position in relation to ownership of intellectual property
• The limit of any indemnity

Other agreements may also be required, depending on the nature and scope of the project and the parties involved. Careful consideration should be applied at the outset to protect the parties involved and the resulting research /outcomes.

If you are an academic institution, or affiliated with one, and require advice in relation to formalising collaborative research projects, please contact us on 0131 222 2939.

Lauren McFarlane, Associate: lmf@bto.co.uk / 0131 222 2939