Grant funders are monitoring IP and open access compliance – tips and pitfalls

Recently, non-commercial grant funders appear to be focused on systematically monitoring the outputs of their funded research, in terms of open access to research publications and IP commercialisation compliance. This is a response to the work of cOAlition S and Plan S, an initiative started in 2018 to make full and immediate open access to research publications a reality.

Funders who agreed to implement Plan S into their policies were required to do so with effect from 2021. There was some appreciation at the time that the change in funder policies would require institutions to adapt both their own policies and practices to ensure compliance, and so a gentler approach to enforcement seems to have been taken initially. Four years on, institutions are fully expected to have adapted to open research requirements imposed by funders and we know that funders are taking monitoring of compliance with these requirements seriously.

In this article, we will flag certain common charitable and national research funder requirements relating to open access and IP output requirements, and comment on approaches to best practice for compliance and common pitfalls to watch out for.

Research for the benefit of society

UKRI, the major national research grant funder, requires grant recipient institutions to make “every reasonable effort” to ensure that funded IP outputs are “used to the benefit of society and the economy”. Wellcome Trust, the major charitable grant funder, requires that, when an institution is commercialising funded IP outputs, it “delivers public benefit, prioritises equitable access and avoids excessive private benefit(s)”.

IP commercialisation teams will want to be alive to these "benefit of society" requirements to avoid breach of funder terms. In practice, we would interpret these requirements to mean that the funded IP outputs should be developed and genuinely used within society on a scale that reflects the importance of the IP. More specifically, in the case of Wellcome-funded research, licences to use and develop the IP should be offered with global access in mind and without prohibitive economic barriers. The benefit of the IP should be for the public, such that any private or personal benefit (such as to a private company) is merely incidental to this.

 Pitfalls to avoid would include: imposing unduly restrictive licence costs on the IP, resulting in the IP not being used at all; failing to include a right to terminate an exclusive licensee’s licence to the IP if the licensee does not exploit it within a suitable period; or failing to ensure that participants in the research assign their IP in the results to the institution, thereby leaving the institution with little control over commercialisation compliance.

Assignment and ownership of IP outputs

Wellcome requires institutions to ensure that research participants assign funded IP outputs to the institution. UKRI requires that “unless otherwise agreed, all intellectual property shall belong to the party that generates them” and also mandates that “in individual cases, we reserve the right to retain ownership of intellectual assets”.

While UKRI’s grant terms do not expressly require it, our view is that it will normally be simpler for the institution to comply with the commercialisation requirements if research participants assign their funded IP to the institution (as the Wellcome grant terms require).

In terms of pitfalls to avoid, the default position in many institution IP policies is for the institution to waive its right to employee generated IP and so this would need to be reconsidered in the context of funded research, potentially by way of a carve out to the general rule (we know that many institutions have already dealt with this in their policies).

Immediate and free open access

The general rule imposed by non-commercial grant funders is that research publications resulting from funded research must be made available to the public to read, share and adapt the research article for free at the same point in time as its first publication.

The challenge for institutions can be aligning this funder requirement with publisher terms where immediate open access is not offered by the preferred publisher, or where the Article Processing Charge is prohibitively high.

Pitfalls to avoid include your institutional IP and/or open access policy not reflecting standard non-commercial funder open access requirements, or inadvertently putting the institution in breach of publisher terms when seeking to comply with funder terms.

Conclusion

The interaction between non-commercial grant funder terms, institution IP policies, institution open access policies and publisher terms is not always straightforward. If you need assistance in reviewing and updating your policies to ensure compliance with funder terms, we are well-placed to assist.

We have referred to the following non-commercial grant funder terms on 4 April 2025 for the purpose of this article: (i) Wellcome Trust; and (ii) UKRI.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2025