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TOWN MEETING: Eugene, November 19, 2001
Policy: Copyright Policies in the University
University of Oregon, Eugene
J. Q. Johnson, Setting the Stage
Laura Gasaway, Creating
Policy in the Real World
Georgia Harper, Getting
the Ball Rolling: You Can Make Something Happen
Barnett, Technology Transfer and Intellectual
Georgia Harper: Initiating
the Policy Process
Negotiating the Hot Issues
Open Forum | Resources |
Speakers' Biographical Sketches
See PowerPoint presentation (Acrobat PDF):
J. Q. Johnson opened by citing Corynne McSherry's
Who Owns Academic Work? Battling for Control of Intellectual Property
that sees the notion of scholarly communication as a form of gift
exchange challenged by a new commodification of academic production.
By buying into the model of the ownership of goods, were we undermining
the goal of academic freedom and the broad pursuit of knowledge?
The Scope of the Meeting
Johnson surveyed the broad territory of intellectual
property policy, within which this meeting was situated. Intellectual
property policy was bound to cover not only copyright law but also
patent, trade secrets, trademark, licenses and contract law. In
higher education it should also cover accepted academic standards
and practice (such as citation practices etc.).
Higher-education bodies concerned with IP policy
include the super-institutional (state government, state university
system, professional organizations); the institutional (faculty
senate, the library) and the sub-institutional (academic departments,
service units like the computing center, and individual faculty).
All might have their own stated or unstated policies.
Universities played many (often conflicting) roles:
as users and as creators of intellectual property; traditional and
online publishers; teachers and administrators of intellectual property
law and ethics; and advocates for policy and legislation.
Policy issues could include: ownership of material
created by faculty and graduate students in their research and teaching
(including patent and trademark); the use of the copyrighted work
of others; the securing of rights and permissions for faculty; asset
management; institutional trademarking; technology transfer and
new forms of scholarly publishing.
This meeting would focus on higher education institutional
policies, with a special interest in courseware and copyright. However,
Johnson stressed the need to be aware that these were embedded in
a larger context.
Policy and Courseware
Johnson then discussed Kenneth Salomon's Checklist of Issues for Electronic Courseware,
noting that, although it was rhetorically prescriptive, it was useful
as a description of key components of a policy. Key questions included:
- Do you have a policy at all; if so, whose is
it; does it get enforced; and where does a faculty member go to
- Given that you have a policy on courseware, where
is it addressed (in intellectual property or other policy documents,
or in the terms and conditions of employment)?
- If an intellectual property regime is based on
the work-for-hire doctrine, is a work considered part of faculty
job responsibility or is it addressed in collective bargaining
Many would argue that IP policy should tackle the
difference between courseware created independently and that created
within the scope of employment. The classic case dealing with this
conflict (of faculty from one institution creating courseware for
another institution) is that of Harvard Professor Arthur Miller
(see Jane Ginsburg's discussion of this in the 2000 New York City
Town Meeting). Policy should be clear about this issue and about
what happens to courseware once a professor leaves for another institution.
Many institutions start by assuming that all faculty works are work-for-hire,
but then relinquish rights to the faculty authors except in cases
where substantial institutional resources are used in the preparation
of the works.
Johnson declared that it was important that policy
distinguish among different kinds of intellectual property: inventions
and discoveries, scholarly works, traditional course materials and
electronic courseware. It follows that courseware policy should
be related to patent policy, trademark, software licensing, asset
management and to the provisions of the DMCA. And overall, Johnson
concluded, it was important to ask whether the policy tracks the
larger goals of the university, such as academic freedom and the
wide creation and dissemination of knowledge.
Laura N. Gasaway, Ownership Policy: The
See PowerPoint presentation (Acrobat PDF):
Laura Gasaway was a key player in the development
of a system-wide and institutional intellectual property policy
adopted by all 16 campuses of the University of North Carolina in
late 2000. It took 15 months to create and her main messages were
that the process is almost as important as the product and that
the key to success is to have not only active faculty participation
but also faculty leadership.
Gasaway reported that historically there had been
little institutional interest at UNC in claiming rights to faculty
works. However, with faculty-created electronic instructional material,
there was new interest, often triggered by the investment universities
make in establishing digital production centers and help desks.
The university was interested both in recouping this investment
and in making money through commercial development.
It was in this context that university attorneys
at UNC were engaged in the somewhat secretive development of new
IP policies. As chair of the Faculty Assembly, Gasaway was upset
when she heard of these developments and immediately took the issue
to the President of the system, who called for an official review.
A substantive copyright colloquium was held with faculty, the university
librarian, university administrators and legal counsel from all
16 campuses along with the president of the UNC system. Shortly
afterwards there was a call for an Intellectual Property Task Force
to prepare an inclusive new system-wide policy.
Though the Task Force numbered 21 people, and proved
cumbersome at times, Gasaway asserted that it was imperative to
be as inclusive as possible. The Task Force included faculty of
all types from the campuses, staff, legal counsel, librarians and
technology transfer officers.
The important issues for the system included: how
uniform and how detailed the policy document should be across the
system; and what resources would be available to educate the faculty,
especially at the smaller institutions, and to implement the new
policy? Some of the questions the Task Force asked of itself included:
could it create a policy within a year when it met only once a month;
and could a fair policy be sold to the faculty? But,
through the active use of subcommittees, a lot of email, a shared
website, and a surprising amount of education, consensus was reached,
even though members sometimes held strong and opposing positions.
The substantive issues on which agreement was reached
included a uniform ownership policy, which Gasaway found was perhaps
unusually "faculty-friendly". The default of faculty ownership
of traditional work (what was normally produced) was reasserted
but it was agreed that the administration has a justifiable interest
if it invested exceptional work, money and facilities in creating
it, or if faculty sought help to commercialize a work. The kind
of exceptional resources employed were defined as: "University
support for the creation of the work with resources of a degree
or nature not routinely available to faculty or EPA-non-faculty
Even within this agreement, a department chair might
agree to the release of the rights to a work back to the creator,
even if exceptional resources had been used. In this case, even
if the university doesnt care about owning the work it might
still want to be able to use it - they would ask for a nonexclusive
royalty-free use - a "shop-right".
Other key points of the policy included:
- Although "directed works" are owned
by the university, as it has directed faculty or a department
to create it, faculty may have the right to use it;
- Under the "Works by State Personnel Act"
employees (applying to staff generally), all works are considered
works for hire, using the Copyright Acts definition, but
university ownership still may be waived;
- Students own their work unless it's work-for-hire,
sponsored or contracted work, or classroom notes.
All campuses had organized presentations on the policy for their
faculty and staff. Each campus had to implement the policy and report
back to the system General Administration about its choice of a
dispute mechanism. Legal counsel at the General Administration then
signed off on each campus policy.
Finally, Gasaway reported that creating the policy
had been a very positive and productive experience. She also reported
that the state had hired an intellectual property attorney for the
university system, which would ensure that smaller institutions
and faculty would have a voice to help assist them in their deliberations.
In answer to questions, Gasaway said that in the
complicated area of joint faculty-student production, the default
was that faculty would own the rights. She affirmed that computer
resources owned by the state could be used by faculty to create
works in which the faculty member will hold the copyright. She declared
that state law differentiated between faculty and staff (staff are
state merit employees under North Carolina law), while non-faculty
librarians were considered under work for hire law, although a distinction
is drawn between work for hire and any scholarly work that librarians
may do outside their normal job assignments.
See PowerPoint presentation (Acrobat PDF)
Georgia Harper focused on the problem of what to
do when an individual clearly has a copyright problem but feels
powerless to make any changes in university policy: how do you get
the ball rolling? Her three-stage advice was to:
- describe the problem articulately, with
- suggest a solution; and
- find the people who will be able to implement
Although the policy itself can quickly become the
focus of discontent, Harper stressed the importance of clearly describing
the problem. She cited, on one hand, individuals' reluctance to
create online materials when they are unsure of what theyll
be able to do with them and, on the other, the reluctance of administrators
to invest in potentially lucrative course materials when they are
unsure what faculty might do with them. In addition, there was usually
no clear dispute resolution process should any problem arise.
Typically, Harper said, policies were too vague.
They fail to adequately address an issue or, if they do, they are
difficult to understand. She quipped that the first inescapable
part of any solution is to read and know the available policy. She
stressed that one doesnt have to understand the whole policy,
but must understand how an institution deals with a problematic
issue. In this meeting, the material and exercises would focus on
the ownership and use of faculty-created courseware. However, understanding
the techniques for critiquing policy and developing a solution can
be applied to any issue.
Harper examined statements extracted from three
- The Vague Policy: "The Board owns
the intellectual property developed within the course and scope
[but] the Board
releases to the creator, [subject to] university license to use
on a case-by-case basis." Harper
commented that this offers no help to faculty debating whether
to develop courseware or not: it simply leaves consideration until
a later date.
- Ignoring the Issue: "This policy
shall apply to intellectual property of all types except for faculty-
or staff-authored written work that is not produced either as
work-for-hire or as part of the regular work responsibilities
of the author." This doesnt answer the question about
work-for-hire or normal faculty production and continues by addressing
inventions. It is clearly adapted from patent policy with no understanding
of the differences between patent and copyright. Harper stressed
the point made earlier by Johnson of the importance for policy
to distinguish between IP regimes.
- Confusing: "The Board will not assert
an interest in textbooks, scholarly writing,
unless such work is a work-for-hire." This sidesteps
the issue of whether a product is done under work-for-hire. This
also looks as if it was drafted by someone who knew patent law
but not copyright.
Solving the Problem
Harper reiterated that the first step in redressing
a problem was to describe it - in detail and with examples. Then
you should confer with others: ask faculty what they are and are
not doing with online courses and ask students whether their needs
are being met. Having described the particular problem, you then
need to relate it to current policy statement and describe what
the disconnect is. Here, it is very helpful to look around for a
good example of a policy that does deal with the issue in a clear
and satisfactory manner. Thankfully, Harper said, there were many
good policies and the University of Maryland's CopyOwn web site was one excellent place to
survey them. She reiterated that one wasn't trying to find the perfect
policy, just one that helps with a particular issue. It's also helpful
to ask what the goals of a policy appear to be. The ultimate goal
of an online education policy should be the development of a robust
distance learning program.
Harper offered some tips for reading a policy:
- Examine the Table of Contents or the Headings
for, in this case, any section dealing with Ownership & Use.
- Read and summarize the appropriate section, focusing
here on how the policy deals with the issue of who owns faculty-created
courseware and under what circumstances? Who has the right to
use courseware even if they dont own it.
- Mark-up the text, indicating how different sections
The group then worked on an exercise using an example
drawn from the Arizona Board of Regents copyright policy: http://www.abor.asu.edu/1_the_regents/policymanual/chap6/6-908.pdf. Harper guided the group through the sections dealing with university
sponsored projects, with assigned rights and "employee excluded
works." In this case, it was quite clear that the university
asserts its rights to all work-for-hire and regards all faculty
production as work-for-hire. In addition, the policy states that
the university owns all material for which any university equipment
or resources are used. Looking closely for a waiver or return of
rights to faculty, or for a statement that faculty have the right
to use material, the group found nothing.
Harper found this particularly unhelpful: the university
thus owns thousands of courses and doesn't allow faculty to use
them except on a case-by-case basis, which is very inefficient
and does not encourage faculty to develop their own courseware.
Even state law that forbade state resources to be used for material
that it would not own, would allow faculty use of those materials,
even if they left the state.
A comment from the audience noted that one should
also take into account the description of the scope of work that
appears in an employment contract. That scope of work for most faculty
would not include creating a textbook; so those creating courseware
would be going outside their scope of work. Harper commented that
one could argue forever about what was included in "work-for-hire"
but the point of policy is that it should define it and that would
minimize disputes. The law, she said, tends to give either all or
nothing. Policy, on the other hand, can craft practical mechanisms
for giving people what they need: for example, use of material,
under certain conditions, that they may not own the rights to.
Harper commented that she had reviewed the IP policies
of many institutions and particularly recommended those of Cornell,
the University of Virginia, and the University of North Carolina,
but even these often dont address what faculty can do with
a university-owned course. She recommended her web page "Developing a Comprehensive Copyright Policy to Facilitate Online
Learning" that had links to the policies referred to in this workshop and to many
Who do you give it to?
After articulating the problem, and analyzing the
appropriate policy statement, to whom do you hand your complaint?
Harper recommended distributing it to as many people as possible:
to the legal office, high-level administrators, faculty senate or
advisory group. It was crucial to make a presentation (allow 30
minutes) and to make sure the target understood the problem and
the many paths to fixing it. Equally important is the follow-up
to check on the status and progress of your proposal.
Richard Linton, Welcome
Richard Linton, Vice President for Research &
Graduate Studies at the University of Oregon, was interested to
discover that one-third of the meeting participants came from out
of state with another third from non-University of Oregon institutions
and the rest from the University. He introduced the university as
one that was transforming itself, especially in the liberal arts
& sciences, and one that was increasingly interested in economic
development and the entrepreneurial efforts of faculty. In the last
year, he said, invention disclosures had quadrupled to 30 a year
and licensing revenues had increased by 50%. Technology transfer
was thus an increasingly appropriate concern for the institution.
Gerald Barnett, Technology Transfer and
See PowerPoint presentation (Acrobat PDF)
Barnett opened with an image from the 1960s movie,
"Hallelujah Trail:" a wagon train is bringing liquor to
Denver; the cavalry has been sent to protect it; the temperance
women are against its coming; citizens go out to meet it early;
and Indians plan to intercept and take it over. All parties meet
in a sandstorm and the wagon train is lost. Intellectual Property
policy, he said, is like the sandstorm: many groups want to manage
and use precious resources heading towards an institution - but
there's a "world of weather" that interferes with the
reasonable operation of thought. Barnett's goal was to explain the
interests and capabilities of universities' technology transfer
offices in the context of developing and sharing the potential wealth
of intellectual property.
He proposed that IP policy was at root about how
an institution respected, supported and directed innovation. He
thought intellectual property works best as a management tool between
organizations in academic institutions: it's not so crucial in protecting
property as it is in enabling and managing relationships that will
enhance productivity. He defined technology transfer as that class
of relationship-building activities that develop the potential for
the deployment of innovations: in moving from research to sustainable
private use, investment and development.
As far as patent rights go, the 20 years since the
have seen the creation within universities of an effective infrastructure
for securing and licensing patent rights to industry. Institutions
now expect policies that assign them the patent rights of the inventions
of their employees. Federal funding requires the assignment of rights
either to the federal agency or to the institution. With industry-sponsored
research, in which agreements are most often about the ownership
of any resultant inventions, the tech transfer office helps to manage
the competition for IP rights, so as to prevent, for example, double
licensing situations where industry-sponsored research and federally-funded
research might collide in their assignment requirements or be complicated
by other background rights that belong to the broader context of
any one piece of research.
Barnett described two generations of tech transfer:
the goal of the first is to assert and develop patent rights and
commercialize them. The second tends to bypass the obvious commercialization
route in order to discover the future of an asset in the community:
how can it be distributed effectively to the most appropriate audiences;
and how can it be built to foster subsequent organizational interest,
whether for-profit or non-profit? For Barnett, the interesting conversation
is how you build this next generation in managing university assets,
which the tech transfer offices see as being held as a public trust.
He considered copyright management at academic institutions
to be still bedeviled by the concept of the individual author, while
most meaningful academic production today is collaborative. Barnett
thought it more useful to look at group production and to consider
how a group will manage the value of what it builds collaboratively.
In policy writing, he criticized the tendency to adopt language
from other institutions' policies rather than examining how the
premises, on which policies are constructed, have changed. Here
he felt that a tech transfer office had much to offer, due to its
thousands of hours of examining how IP relationships work.
He argued that it was critical for tech transfer
to work for integration between the different IP regimes and to
manage the differences between them, rather than simply trying to
make bridges between them. For example, a scholar may advocate for
strong fair use implementation in a specific case, in which rights
need not be cleared; but from a tech transfer viewpoint, the resultant
article may be unpublishable as it might not so strictly log its
sources or have permissions necessary to permit distribution.
The big five things to be kept in mind in any rights
administration relationship are: ownership, control, money, attribution
and risk. These always haved to be considered; they often come in
binary pairs (for example, if you are talking ownership you are
also likely to be talking about control.
Within the broader landscape, Barnett wanted to
emphasize the increasing number of federal information management
policies that are starting to control our activity in this area.
As examples, he mentioned the Health Insurance Portability and Accountability
Act of 1996 (HIPAA)
and the Family Educational Rights and Privacy Act (FERPA),
both of which highlight the question of where responsibility lies
in managing the guarantee of privacy in the maintenance of personal
information. Other examples here included the Americans with Disabilities
the DMCA itself, Export Control (the regulations that apply if there
is any constraint on any set of information); and UCITA.
Summarizing his review of technology transfer, he
declared that it controls an institution's patent policy; it is
extending into grant work; increasingly it manages copyright ownership
of technology-based as well as invention-base properties; it is
involved in conflict of interest review and in data management;
and, as it emphasizes the importance of trying to integrate the
different IP regimes, it may drive new questions, such as "is
that fair use position one you want to take if you want to publish?"
As a final word, Barnett emphasized that intellectual
property should be viewed more productively as a springboard for
creating relationships that matter with industry and other organizational
partners. Although an IP policy might sort out who owns what, it
is more important that it gives people incentive to work together
to accomplish something that matters. In his closing image, Barnett
declared that IP policy should have less to do with how the pie
is carved up than with how it is served, so that it keeps people
working productively together and doesn't interrupt the drive and
mission of the university.
Deb Carver, Introduction
Deb Carver, interim university librarian at the
University of Oregon, introduced the library and gave a thumbnail
sketch of its involvement with copyright issues. These had effectively
started with its tackling reserves policy in 1992 and had developed
quickly in recent years with developing a faculty instructional
tech center in the library and assuming responsibility for a media
center and the issues stemming from that. She was optimistic about
the policy that would emerge from the work initiated at the town
meeting and workshop. She stressed that the Oregon system had a
strong history of faculty governance and interest so trusted that
faculty would play an active role in transforming the university's
intellectual property policy.
I Georgia Harper, Getting The Ball Rolling
Georgia Harper introduced the first part of the
two-part workshop. The exercise for the group was to read through
IP policies from six universities and to summarize their position
on electronic courseware.
The following comments were made on the policies
read through by the group:
Cornell University The Cornell base is faculty-ownership of course materials, with exceptions
for directed works and other specific situations. Electronic work
is to be equitably shared. The group noted that the policy is very
complex and ambiguous. After close reading it appeared it was some
ten years old and language originally meant for software production
("encoded works") is now being applied to courseware.
The policy is generous with the "right to use" (balancing
the university's right to use faculty-owned work and vice versa).
University of Virginia Virginia's policy also
offers faculty ownership of traditional works but has an exception
for situations where a project uses significant university resources.
There is generally no interest in faculty work unless it makes money.
The policy covers the university's own use of faculty material but
but not faculty use of university-owned material.
Louisiana State University The default at LSU
is that the university owns everything, but the policy opens up
the possibility for case-by-case negotiation.
University of North Carolina At UNC, the default
is that faculty own their material, with the university having the
right to use it on a non-exclusive, royalty-free basis for internal
use. The exceptions to this again include the situations where exceptional
institutional resources are used in the production of work. In the
cases where the university owns material, the creator has the option
of joint authorship with a nontransferable right to use.
There was a discussion at this point about "shopright,"
as a shorthand for describing the situation at the Chapel Hill campus
where the policy added the right of faculty to use electronic courses
developed on campus at another institution, but with no right to
develop and commercialize it. One issue here, though is that the
originator could give away the content but could separate their
own value-added services in teaching it. This essentially is what
is at the core of the MIT "give-away" of distance-education
material: the material still needs to be activated by skilled faculty.
University of Chicago It was clear that the
Chicago statement is not a policy, but rather a set of very general
and vague recommendations. The basic premise is that the university
owned everything, but the statement was considered to be confusing
and inconsistent. To be improved it needs clarity, definitions and
University of Oregon: Oregon
Administrative Rules; Internal
Management Directives; Faculty
Handbook. The Oregon policy declared that it owns everything,
as if it were a regular corporation, despite a preamble that stated
the importance of putting works in the public domain. The policy
treats everyone as though they were staff employees: there are no
distinctions and everyone has to agree to assign all copyright to
the university. It seemed clear that this was another case of a
document designed for patent being used for copyright.
Someone asked whether the Oregon policy could be
changed as it was built on the "administrative rules"
for the state of Oregon. It was pointed out that the rules were
adopted by the Board of the system and could be changed by the Board.
Someone else pointed out that it was generally recognized that changes
need to be made; just how is on the table.
The issue of inconsistency and confusion within
policies was identified, as well as inconsistency between policy
and standard practice. Georgia Harper reiterated her point that
even if ownership of the rights to materials was off the table,
there would always be plenty of room for negotiating the terms of
use of that material.
The suggestion of taking the issue to legislators
was generally seen as an effort that might seriously backfire. It
was deemed essential to involve key faculty, perhaps comprised of
small groups who could review and make recommendations for specific
Laura Gasaway, Ownership Policy Drafting Exercise
Laura Gasaway led the group through the second part
of the workshop: an exercise in drafting policy in response to certain
situations. Each group was assigned a situation and 30 minutes to
create a policy draft about how to deal with the issue. You
will be asked to report for your group.
Assume faculty ownership of copyrighted works such as distance learning
courses. If a faculty member develops a course and then leaves
the college or university, what should happen? Should
the faculty member have sole rights to the course? Does the
institution have any rights? Who should have the rights to
update the course? Whose name does it carry?
No consensus------but a possible
If single author, little university
resources, faculty owns but required to assign to institution limited
bundle of use rights
- time frame
- rights to sublicense
- rights to derivative work preparation
- portability of course
- authors name associated
with course if faculty wants rights
- monitor course & how it is
Regardless of the division of ownership rights between faculty and
the university, disputes will arise. How should ownership
disputes between the institution and a faculty member be handled?
What administrative office or faculty/staff group should have or
share this responsibility?
Use regular dispute Board
- The person hearing dispute has
a Board of advisors from which to draw (special knowledge of intellectual
- Person hearing determines what
the reasonable needs are of each party involved
- Use regular dispute resolution
process for appeals from this decision
Assume faculty ownership of copyrighted works they create.
What about staff employees? Are their works considered works
for hire? Should professional and administrative employees
be treated differently than clerical and support staff?
Is there a way to provide for negotiations to alter the basic policy
in particular situations?
Treat all staff employee works as
works for hire
- Except for works created independently,
no university resources & not within scope of employment
- University will consider negotiations
on a case-by-case basis
* At request
University (or reviewer) will determine if staff need is reasonable
your policy recognizes faculty ownership, how will your institution
advise faculty who are required by publishers to transfer their
entire copyright in order to have the work published? Will
you differentiate between scholarly articles, monographs, textbooks,
etc., in the advice? Who will provide the advice?
Advice provided by:
- Large institutions VP for
- Smaller institutions Provost
or legal counsel
- Generally would be scholarly articles
Outlets for publications that do
not require transfer of the entire copyright: SPARC, Tempe, Associations,
Online publications recognition
for publication online in promotion and tenure policies.
Assume faculty ownership of the copyright in works they create and
college or university ownership of works created by staff members
within the course of their employment, i.e., works for hire.
How should the institution deal with works created by students either
as course assignments or theses and dissertations? If the
student collaborates with a faculty member under a grant, who should
own the copyright in any resulting works?
In general, student model should
follow the faculty model: student ownership
- Course assignments
- Theses & dissertations:
consider use of university resources
Could be extensive use of university
resources, but the student must own the data in order to publish
the dissertation in order to publish it
- Rights of use to the university
- Rights to the university of any
Funding authority may want to own
the underlying data
Student/faculty collaborations depends
on nature of the collaboration
- If for pay = work for hire by
- If under grant, faculty and student
are working as colleagues, consider use of university resources,
share the right
will your institution educate members of the academic community
about copyright? What methods should be used with various
Who are the constituencies?
- Varies for art, performing arts,
science & technology, etc.
Website for providing general information
Look at points of use for education,
e.g., Center for Teaching & Learning to help faculty understand
both use & their own rights
* Departmental committee on libraries
Dont put the educational materials
on copyright in the new faculty handbook
Yearly letter on copyright from the
Brown baggers, receptions, open houses
go out to the faculty
- Bring the deans in first
- Then department chairs
- Faculty senate; faculty advisory
Hide the fact that the issue is copyright
call it something else (?)
Try to adjust the effort to the faculty
in an area hit their interests
Student education is also important
- Use courses (component of information
- Emphasize that students are also
creators of copyrighted works
Departmental executive administrator
is the best person to contact (than the department chair)
the basic model is faculty ownership, how should the policy deal
with situations in which the college or university has invested
exceptional resources in the creation of the copyrighted work?
If the model is institutional ownership, should the faculty member
have any rights in the work she created with exceptional use of
college or university resources? What institutional resources
are not considered exceptional? How will exceptional use of
resources be determined?
Simple model: ownership should
not matter should be determined by a small group of individuals
such as a deans council
* does it matter when multiple people
involved in creating the work? (usual circumstance)
* joint authorship could be a model
among the faculty members
- grants back to the university irrevocable,
nonexclusive right to exercise the ß 106 rights
If commercial opportunities arise,
parties renegotiate a new license
irrespective of amount of resources
invested by either party
Adaptable to all employees not just
University ownership addressed similarly
Disputes handled by one faculty member,
one administrator and a knowledgeable IP person process to
decide when resources are exceptional
model do you think will work best for drafting a copyright policy?
Does it differ depending on the type of university or college?
Can you suggest models for different types of institutions?
Law faculty member who specializes
in intellectual property
Someone from State Attorney General's
Office or State Department of Justice
Oregon might come up with a unique
model think outside the box of the seemingly restrictive
policy that seems to work okay despite the wording of the policy
Discussion and statement of principles
of what the policy should be based upon (include applicable state
Recognize differences in campuses
Be careful about how the policy is
going to affect the institution
- Resources the institution
will commit to implementation of the policy
Difference between policy and guidelines
- Policy = guiding principle or
- Guidelines can be more detailed
To a question on the university's liability for
online infringing activity, panelists responded that indeed as an
ISP, the university is ultimately responsible and that this tends
to make university attorneys cautious. However, the panel recommended
the development of a fairly broad Acceptable Use Policy that does
not police and make judgment on individual postings but that clarifies
what is and is not acceptable use of university resources. To that
end, another commentator said that the university had a responsibility
to provide the tools necessary to achieve the goal of enabling individuals
to see the larger picture of online behavior and of understanding
and respecting each others' rights.
A questioner asked how intimidation by large corporations
played into this picture. He raised the issue of Mattel's complaint
over a Barbie parody on a web site at Rice University. Rice did
not contest and took down the page. One panelist said that universities
should have a different perspective than AOL, for example, and should
judge whether a university's values were compromised. Another panelist
replied that it might depend on the academic or classroom significance
of a parody: is it cool or is it important? On the other hand, is
the principle of fair use not more important than the content of
an individual case? Is fair use not being marginalized through the
brute force of large corporations complaining over what they don't
like? Barnett's advise in all this was, if you're going to do such
parody then do it really well, so the university feels strong in
its defense. Gasaway added her voice to the importance of strengthening
parody as a legitimate defense with academic significance - in this
case both its art component and its social criticism.
When asked how long it took for university IP policies
to be fully created and implemented, Georgia Harper said it took
18 months from the time she heard about a particularly troubling
issue (that had been around for 2 years). Laura Gasaway said that
although the task force and UNC took 15 months to do its work, it
was almost 3 years before the whole process was finished.
Gerald Barnett had the last word in emphasizing
that for him the key to creating effective policies was to be led
by the future. Too many policies were only about analysis and forensics.
There needed to be more logistics about how to create something
for the future: how do you rally the resources to make things happen.
He advised the group to ask of any policy: "What is the future
that is incentivized by this policy?"
Christine Sundt closed the meeting by thanking everyone
who had helped in thinking it through and putting it together.
American Association of University Professors (AAUP),
"Statement on Copyright:" (1999) http://www.aaup.org/govrel/special/Spccopyr.htm
Laura Gasaway, "Drafting a Faculty Copyright
Ownership Policy," The Technology Source, March/April 2002:
Georgia Harper, "Developing a Comprehensive
Copyright Policy to Facilitate Online Learning:" http://www.utsystem.edu/ogc/intellectualproperty/Missouri.htm
Kenneth Salomon, "Checklist of Issues for Evaluating
the Adequacy of Institutional Intellectual Property and Employment
Policies and Procedures for Electronic Courseware:" http://darkwing.uoregon.edu/~jqj/ninch/salomon-checklist.htm
University of Maryland, Copyown: A resource
on copyright ownership for the higher education community:
Selected Copyright Policies:
Arizona Board of Regents
Louisiana State University
University of Chicago
University of North Carolina
University of North Carolina at Chapel Hill
University of Oregon
University of Virginia