A recent decision by the United Kingdom Information Tribunal is the trigger point for renewed claims that universities are commercial entities.
The decision in University of Central Lancashire v Information Commissioner and Colquhoun states:
“We do not consider that the fundamentally charitable character of a university means that it should have no commercial interests. A body which depends on student fees to remain solvent has a commercial interest in maintaining the assets upon which the recruitment of students depends. Moreover, we accept on the evidence that UCLAN operates in competition with other institutions of higher education in seeking to sell its products, namely undergraduate courses, to potential students.”
It is important not to conclude that the ruling is saying that universities are commercial entities. Instead the tribunal found that universities do have commercial interests. It does not follow that universities are commercial entities by virtue of either their nature or their role in society.
The dispute
The tribunal is set up under United Kingdom Freedom of Information legislation, and decides appeals from rulings by the Information Commissioner on information requests. Professor Colquhoun a pharmacologist and research professor at University College London made an information request to the University of Central Lancashire. UCLAN offers a B.Sc degree in homeopathy which is not a regulated profession in England. Prof Colquhoun, sceptical of claims that homeopathy is a science, requested copiesof learning materials from the homeopathy courses from UCLAN. The university refused and Information Commission ruled in Prof Colquhoun’s favour, that ruling was appealed to the tribunal which refused the appeal, and ordered that the information be disclosed.
I am not going to discuss the intricacies of the tribunal’s reasoning, or its place in access to information jurisprudence. There is a summary discussion of the ruling by the Campaign for Freedom of Information.
UCLAN argued that it has a commercial interest in its learning materials, and that disclosure would harm those interests. The tribunal agreed that UCLAN has an interest but found that disclosure would not substantially harm those interests, and that they would be outweighed by the public interest in diclosure
Implications for Creative Commons Non Commercial Licences
Does this ruling have a bearing on the incorporation of Creative Commons Non Commercial licensed material in learning a materials? Although the ruling is that universities have a commercial interest in their learning materials this interest is not necessarily best served by non publication of the materials. The tribunal held”
“Whilst there may be dangers in equating university competition for students with competition within the professions, we note that accountants, solicitors and barristers` chambers, for marketing purposes, routinely publicise without charge the fruits of their experience and professed expertise in the shape of articles, seminars and web – based instruction. Ms. Proops ` argument that UCLAN undervalues the commercial advantages of publishing its wares has some force, we conclude.”
In other words the commercial interest which the tribunal found may be identified with the right to publish the material free as much as it might be with the right to charge for access to the material. The ruling can does not clarify what constitutes “commercial use” because commercial interests may served by free publication as much as by charging for access.
Rather by suggesting that universities are engaging in commercial activities which include their use of learning materials in some way the ruling further complicates the analysis of whether use is commercial or not. I have suggested on this blog that the difficulties of deciding whether a particular use is “non commcercial” or not can best be resolved by adopting a definition of commercial use as actual transactional use; “selling the work, letting the work, including the work in a paid for advertisement or work for hire”. I am willing to be persuaded differently but haven’t seen a compelling arguement, or much arguement at all, to the contrary.
Parting Thought:
If universities are commercial entities like banks, then they should be subsidised, like banks, instead of being starved of funds, like public institutions.
