Compiled by Tom Rocklin.

This month's Virtual Companion is designed to accompany the article "What's My Line" in The National Teaching and Learning Forum, Volume 9 Number 1.

Who Owns What Faculty Create?

As faculty members use new technologies in their teaching and scholarship, the products they create look less and less like the traditional ink on paper products they made in the past and the way they make these products involves more people and more tools than before. These changes have caused colleges and universities to re-examine their policies on ownership of intellectual property. To survey these policies, I took a cruise around the web trolling for relevant policy documents.

Before I share my catch with you, let me issue three caveats:

• Policy documents are complicated. Some of them seem to have been written to promote the sale of headache remedies. It is entirely possible that I misinterpreted a particular policy by missing a subtle provision that modifies the meaning of other provisions. I think I've characterized the general situation fairly, but please don't rely too heavily on my characterization of any particular policy.
• I looked at policy documents, but I didn't try to find out to what extent the policy as written matched the policy as implemented. It may well be that practice has diverged from stated policy in some of the cases at which I looked.
• I'm not a lawyer. What I write isn't legal advice. 'Nuff said.

Under US law, the basics of copyright ownership seem simple: The author of a work eligible for protection under the copyright law owns the copyright. But of course the law is never that simple. While you and I might think that the author of a work is the person who created the work it turns out that that's not always true. In at least some cases, the institution that pays the salary of the person who creates the work is the author.

Section 201(b) of the US copyright law (http://www4.law.cornell.edu/uscode/17/201.html) establishes that if the work is what's known as a "work made for hire", "…the employer or other person for whom the work was prepared is considered the author." So, what's a "work made for hire?" It turns out that many of the works that faculty members create are probably works for hire. In section 101 (http://www4.law.cornell.edu/uscode/17/101.html), the law defines a work made for hire as a work "prepared by an employee within the scope of his or her employment."

As you might suspect, lawyers and others differ on which works of faculty members are works made for hire. The American Association of University Professors has published a draft statement (http://www.aaup.org/spccopyr.htm) on copyright that asserts "traditional academic work that is copyrightable-- such as lecture notes and courseware, books, and articles--cannot normally be treated as works made for hire." The National Education Association has reached a similar conclusion (http://www.nea.org/cet/briefs/08.html). On the other hand, a thread (http://www.cni.org/Hforums/cni-copyright/1992-03/0216.html) from the CNI-COPYRIGHT forum (http://www.cni.org/Hforums/cni-copyright/about.html) sponsored by Coalition for Networked Information shows a much greater diversity of opinion (and greater depth of analysis as well). Furthermore, all of the policy statements I examined either implicitly or explicitly start from the premise that the institution, as employer, has a claim to the copyrights associated with some or all of a faculty member's work. Clearly a lot of college and university lawyers believe that the works made for hire doctrine has some applicability to faculty work.

So, (and I hope this doesn't come as a shock to you) as a general matter, if you are the employee of a college or university, the institution you work for may own the copyright to copyrightable works you create within the scope of your employment.

Long-established academic tradition has been that faculty members are granted the copyright to standard sorts of academic works (e.g., books, course materials, articles) even if the law would allow the institution to claim the copyright. Indeed, nearly all the university policies I examined begin by granting faculty creators of such works the copyrights to those works. For example, The University of Oklahoma's policy (http://www.ou.edu/provost/pronew/handbook/3/Fp3283.html) starts out by saying "Copyrighted works produced by University faculty and staff are the property of the creator of that work. All rights afforded copyright owners under Section 106 (http://www4.law.cornell.edu/uscode/17/106.html) of the Act reside with the creator." In all the policies I looked at, it's after that sort of statement that things get interesting.

Let me first get one near-universal provision out of the way. Every policy I looked at notes that the contractual agreements governing sponsored research may include provisions governing copyright assignment and that these provisions will be honored. This seems neither surprising nor controversial. If the institution accepts a grant or contract that includes provisions concerning copyright, naturally those provisions will govern the work arising from the grant or contract.

Beyond that, one of the more common distinctions in university and college policies is between specifically commissioned works and works resulting from an independent academic effort. A number of policies (including University of California, Berkeley (http://otl.berkeley.edu/Copyright.html), Kansas State (http://www.ukans.edu/~kbor/intelrev.html), University of Virginia (http://www.Virginia.EDU/~urelat/Guide/PartII-9.html), University of Illinois (http://www.vpaa.uillinois.edu/policies/patents.htm) use this distinction in one form or another.

In every policy I examined, the institution asserts ownership of specifically commissioned works (see Kent State's policy (http://www.kent.edu/policyregister/register/Chapter%205/Chapter%205%20Section%203342-5-121.htm), for example). Basically, if an administrator assigns a faculty member to produce a specific product, the institution wants to own the product. After all, the assignment presumably arose from an institutional need and if the faculty member owned the product, the institution would have to license it in order to use it.

In a few policies (e.g., Rutgers (http://info.rutgers.edu/Services/Corporate/copyrigh.html, Emory (http://www.osp.emory.edu/share/policies/copyright.html) specifically commissioned works appear to be the only works that the university lays claim to. This is the most "generous" sort of policy I saw, as well as typically the shortest. Most institutions lay claim to the copyrights of at least some other works.

A lot of policies also assert institutional ownership over works created with the assistance of extraordinary institutional resources. Here the idea is that the institution routinely provides faculty members with certain resources (office space, libraries, computers, Internet access, etc.). Sometimes, though, the resources provided go beyond the ordinary. Perhaps the institution assigns technical staff to the development of an electronic work, or buys unusual equipment, or provides staff to shoot and edit video. Most institutions (e.g., University of Massachusetts (http://www.umass.edu/research/ora/intel.html) University of Utah (http://www.admin.utah.edu/ppmanual/6/6-7.html),assert ownership of the copyright in works arising from such investments.

Some institutions grant the copyright ownership to the creator even for works in which the institution has made an extraordinary investment, but reserve certain rights for the institution. According to the policy statement at the University of Oklahoma (http://www.ou.edu/provost/pronew/handbook/3/Fp3283.html), when university service units (such as a media production department) contribute to the work, the creator and the university will share in any royalties generated by the work. At the University of Illinois (http://www.vpaa.uillinois.edu/policies/patents.htm) the institution grants the ownership of the copyright to the creator, but retains a license to use the work. The "minimum terms of such license shall grant the University the right to use the original work in its internally administered programs of teaching, research, and public service on a perpetual, royalty-free, non-exclusive basis," and depending on the circumstances of the work's creation, the university may retain more than those minimum rights.

Another approach to copyright ownership policy is to differentiate the institution's interests based, in effect, on the medium in which the work is created. That sounds strange. Why would a policy differentiate between works on paper, sculptures, paintings, etc? Well, of course, it wouldn't. But some policies treat electronic media as a special case. I suspect that the reason electronic media are treated differently than others has to do with two issues. First is a fear that a faculty member might create an online course (whatever that might mean) and license it to other institutions which are in some sense competitors of the home institution. We can imagine a case where students have a choice of taking exactly the same course at the institution where it was developed or at another, lower tuition, institution. It would be hard to deny transfer credit for such a course, wouldn't it? The second issue is related. Much of what faculty members created in the pre-digital era had very limited potential for royalties. Ceding rights to those creations didn't cost the institution much. Suddenly, though, as faculty members became multi-media creators, institutions started to suspect there might be real money at stake. In some cases, they were right.

For example, the University of North Texas's copyright policy (http://www.unt.edu/ospa/copyrght.htm) makes pretty typical distinctions based on the contribution the institution makes to the creation of the work. However, the University has recently published a draft policy (http://www.unt.edu/cdl/propertyrightsform.htm) specifically addressing copyright issues in "Electronically Developed Course Materials." This new policy seems to mix the ideas of a specific commission and of university contribution. The policy uses these two ideas to create five categories of work with helpful examples of each category. The ownership rights and royalty distributions are different for the five categories.

Both the current (http://www.ukans.edu/~kbor/intelrev.html) and a draft (http://www.ksu.edu/committees/ippdc/draftpolicy.html) policy at Kansas State single out "mediated courseware" for special consideration. While granting ownership for self-initiated and directed works, the policy retains certain rights (e.g., royalty-free use) for the institution and limits certain rights (e.g., use at a competing institution) of the creator.

My cruise of the net didn't come up with any obviously perfect policies. I suppose every institution has slightly different issues and therefore needs slightly different policies. Many of the policies that I examined noted that the purpose of the policy was the same as the original purpose of copyright law itself. The US Constitution grants Congress the power to enact what have become copyright and patent laws in order to "promote the progress of science and useful arts." College and university copyright ownership policies have the same goal, but balance it against the interests of the institution and the traditions of the academy.