Foundations, Grantees, and Intellectual Property Rights
Updated: Mar 10, 2022
I was a fundraiser for 15 years. The implications of my survey’s findings on who funds, owns, and benefits from intellectual property created by nonprofits was always lingering in the back of my mind.
Fundraising is not a new activity or new profession. I remember one of my grad school professors showing us a direct appeal fundraising letter from 1235. I thought about how much “program” fundraising I had done. All the curricula, training, interventions, capacity building, and general knowledge creation that grant funding, individual donors, and government grants had resourced throughout those years would difficult to catalog in retrospect. Certainly, we weren’t doing it in tandem with the funding. We weren’t even thinking about Intellectual Property as an asset. We were generally thinking of it as a tool to do the work. And, that’s true. It is a tool.
But, when you step back and think about what made the organizations I worked for successful at serving their stakeholders was the wealth of knowledge in and adjacent to the tools. That knowledge was mostly staff tacit and explicit knowledge being captured in a written document so that others could deliver the same programming or curricula.
I wish I could remember the content of the hundreds of grant contracts or agreements I signed over the years and if any ever explicitly mentioned intellectual property. I do know that I signed grant agreements with a foundations that, in a public forum, explicitly stated the expectation for grantees to freely share curricula and materials with their other grantees, much like the blog post that launched a 1,000 questions. In that same forum, another funder, held the opposite opinion.
I’d fundraised from both of them to develop an educational curricula for a youth arts travel experience. They had competing intellectual property access and rights expectations. That curricula later earned the organization significant PR and media time, making it a very valuable way to get meetings, increase awareness of the organization, and led to inquiries to license the curricula.
If the funder who expected grantees to freely share IP developed with their grant funds had required my employer to do so, what would have happened to the value of that curricula? Who would have triumphed in a dispute about ownership and rights-granting decisions?
Does providing financial capital automatically give a funder ownership or rights in intellectual property? From a marketplace perspective, should citizens, who underwrite tax deductions and enable private philanthropy to exist, want nonprofit IP to be ownerless or owned? Are the arguments for and against different from the arguments for and against IP rights in industry? If a funder shares ownership with a grantee, who manages the asset and whose goals are prioritized? From a fiduciary perspective, if ownership is shared, who is making sure that the IP assets are being used for the public benefit and who defines what that is? Are there situations where shared ownership enables greater public benefit impact?