When students collaborate with a party outside Aarhus University (i.e. a third party) as part of their studies and want to use this party’s confidential information/business secrets in connection with an exam or in a written thesis, an agreement concerning this must be made between Aarhus University, the student and the third party, as stated in The Ministerial Order on University Examinations and Grading (the Examination Order).
The thesis can contain information which the student has received as part of his/her collaboration with the company. This information may be confidential and may belong to the company. If the thesis is submitted for assessment, the assessment must comply with the rules in the Examination Order. The assessment of the thesis is an administrative act, and the thesis, the assessment as well as the basis for the assessment etc (the supervisor’s work during the supervision process, the supervisor’s and the co-examiner’s additional material and discussions) may be subject to right of access to documents in accordance with the Danish Access to Public Administration Files Act and the Danish Public Administration Act.
An oral examination in which the student defends his/her thesis will usually be open to the public. The co-examiner and the examiner are subject to a duty of confidentiality in accordance with the rules of the Danish Public Administration Act. However, if no particular arrangements have been made, members of the audience are not subject to a duty of confidentiality. Regardless of the fact that the co-examiner and the examiner are subject to a general duty of confidentiality, the student’s presentation of information and results from the collaboration during the exam (with or without an audience) may be an infringement of the company’s rights pursuant to the legislation concerning confidentiality in relation to business secrets
It may therefore be necessary to make sure that the exam is closed or partly closed to the public, as well as make sure that an agreement exists between the parties which ensures that the student is allowed to pass on the company’s/third party’s information. If an audience is present, it may be necessary to impose the same degree of confidentiality on the audience as on the student through a written confidentiality agreement.
Section 45 of the Examination Order contains a rule which stipulates that an agreement must be made between the student, the company and the university if it is necessary to use results etc from the collaboration/test period, including whether any information regarding the third party may be published.
This means that an agreement must be made concerning the aforementioned use of results, products, inventions etc, as well as publication of information.
Without an agreement, the general rule is that ownership belongs to the party who produced the results, products, inventions etc. In many respects, ownership means that this party then has the exclusive rights to use (disclose, keep confidential etc) the product/result/invention etc.
Technology Transfer Office at Aarhus University has developed a suggestion for a confidentiality agreement which describes the parties’ opportunities/restrictions in connection with the right to publish and use each other’s information, results etc. Please note that all three parties (the student, the third party (company) and the university) must be parties to such an agreement as mentioned in section 45 of the Examination Order.
The agreement defines the extent of confidentiality and makes it possible for the company to screen the student’s draft for the written thesis. In addition, the agreement lists procedures to ensure that it is possible for the student to use information which is otherwise subject to confidentiality restrictions in his/her thesis and in connection with an oral examination. In addition, the agreement states the company’s opportunities for using results etc, provided that these are not covered by intellectual property rights.
The parties are not forced to use the text in the mentioned agreement. However, it may be a useful tool in order for the parties to navigate when there is a risk of infringement of rights. The student is an independent party in relation to the collaboration with a company. TTO at Aarhus University cannot give advice – or represent the student in connection with the negotiations of such agreements. If the student needs specific legal advice and a representative in connection with such negotiations, the student must find his/her own legal adviser/representative.