Why Institutions want Ownership

The institutions themselves believe they have the best interest of their students at heart. Claude Comair, President of DigiPen, has previously asserted that this is for the students’ own good. The institution is ill-equipped to determine who contributes to any given project. This could easily lead to legal disputes down the road should a project obtain some success. If the institution retains ownership in the work this is no longer a problem; DigiPen will not commercially exploit its students’ works. The fact that DigiPen has a policy of not competing with the games industry and doesn’t actively release any of the games produced within their program makes it clear that this isn’t greed talking. It’s a matter of control, and it’s not a terribly different situation from what most students will face in the real world.

There are other factors, however, that may also lend itself to the belief that this policy makes sense. In some cases it enables students to create things they otherwise couldn’t produce on their own. According to the USC/SCA (School of Cinematic Arts) Intellectual Property Policy, USC/SCA owns the “Student-Produced Works” that are produced with SCA funds, equipment, guild agreements and insurance. This is without question in the students’ best interest. Securing guild agreements and insurance is an expensive and tedious process that many students are ill-equipped to handle. As these contracts are made with the Institution, the Institution must necessarily own the work. However, students retain rights to the “underlying script, idea, treatment, concept or other written work product related to any such audiovisual work.” Thus students are free to do whatever they want with their idea in the future.

Similarly, DigiPen provides the software licenses and equipment needed to create games within their program. It may therefore share a similar justification as the one presented by USC/SCA; these licenses are expensive and prohibitive. Students may not be able to secure the tools they need to make the game they want without the institution’s help. As these licenses are in the school’s name, games produced with these licenses must be owned by the school. It becomes a balancing act between giving students creative ownership and giving students the tools they need to become effective game developers. And while DigiPen does not permit students to retain rights in their underlying script, idea, treatment, etc., this hasn’t stopped students from reproducing future games that rely on the same game mechanics.

Finding a Balance

So are these institutions in the right? Is DigiPen merely protecting its students by asserting its rightful stake in the project? Perhaps, but it’s taken it to a fascist dimension that is entirely avoidable. As mentioned above, IP policies like the one presented by USC permit students to retain ownership in the underlying work. Any dispute arising between contributors at USC, however, will naturally arise in the future and without USC’s involvement. This is one solution DigiPen and similar game schools could and should consider when examining its own IP policies. Even if the institution itself doesn’t want to compete with the games industry, it has no right to prohibit its alumni from competing once they’ve completed (or quit) the program.

There are other solutions that could give students 100% ownership now, should these schools choose to embrace the policies frequently adopted by the rest of Academia:

1. IP Education. Information is key, and providing students with an understanding of intellectual property will hopefully prevent future foibles. Game development programs should provide at least one mandatory legal/IP course. This could be a semester-long course or a week long “orientation” program that discusses idea theft, intellectual property infringement (including patent and trademark infringement), copyright ownership, plagiarism, attribution, and the school’s policy concerning idea theft and copyright infringement.
2. IP Enforcement. Every institution in higher education takes plagiarism seriously. Students can and have been failed or even expelled for stealing another person’s work. Disciplinary measures for idea theft are one of the most stringent among most colleges and universities. This should hold equally true in game development programs. While this does not curb the practice entirely, it certainly provides students with incentive to stick to their own ideas.
3. IP Ownership. Each team member in a project should own an equal undivided interest in the work. Additionally, each team member may own 100% of their contribution to the work. No matter how the ownership structure is determined, contributors should be documented and attributed throughout the game’s development. This can be managed by an advisor or a senior-student/project lead. Prior to the release or exhibition of a game the game credits should be well established and confirmed. If this isn’t already an existing practice at schools like DigiPen, it should be. Additionally, prior to exhibition or release of a game the school should prepare a copyright application designating who owns what; this can be funded by the students or by the institution as appropriate.
4. Dispute Resolution. One of the concerns Comair mentioned involved ownership disputes and possible legal claims. Rarely should a dispute concerning games developed in an academic program ever see the inside of a court room, or if it does, it should have nothing to do with the institution itself. Most academic institutions have ethics committees or judiciary committees that will reach their own determination as to claims of idea theft and intellectual property infringement. This same technique can be used to determine whether students deserve credit or should be disciplined.
5. Licensing. This should be fairly straightforward; prior to the release or distribution of any game, students should be required to obtain the requisite commercial licenses for their games at their sole expense (or at the expense of an interested publisher). Once a student elects to release their game, they are responsible for that game and DigiPen should rightfully disclaim all liability, rights and interests in the final product. However, DigiPen may elect to retain a non-exclusive, perpetual, and royalty-free license to reproduce and display the work for instructional and academic purposes.

Conclusion

Having policies and procedures in place to resolve disputes and discipline those who commit idea theft is the responsibility of any academic institution. DigiPen and other institutions with similar IP policies undoubtedly have their own disciplinary and dispute resolution measures, but for whatever reason have determined that those current infrastructures are ill-suited to manage such disputes. The risk these institutions face is obviously heightened by the commercial value of games, which may encourage students to litigate for monetary reasons as opposed to moral principles.

Regardless of the reasoning behind institution ownership, students should own their work. And despite the problems arising from student ownership, these problems can be addressed without creating a significant burden for schools. A Graduate Student preparing to publish her dissertation from Harvard doesn’t worry about whether Harvard’s going to prevent her from doing so because she used their library to conduct her research. Traditional Academia has centuries of experience handling intellectual property and attribution disputes. These lessons should be passed on to this “new” art form.