Intellectual Property and the AAUP

Some approaches to intellectual property can conflict with academic freedom. The AAUP’s Statement on Copyright addresses issues of control and ownership of academic work.

By Mark F. Smith

The American Association of University Professors was founded in 1915 but did not establish a policy on intellectual property until 1999, when it adopted its Statement on Copyright. Far from suggesting an absence of interest in the issue, the time it took to address the questions surrounding intellectual property reflects instead the contradictions inherent in the role of faculty as both creators and users of intellectual property. Ideas are our stock in trade, and the expression of those ideas is at the heart of our identity as educators. We feel the need to retain control of our intellectual property rather than give it up to an employer. At the same time, our purpose in the classroom is to promote the free exchange of ideas and to encourage the widest possible sharing of knowledge.

Intellectual property encompasses copyrights, patents, trademarks, and trade secrets, but the AAUP’s Statement on Copyright deals only with copyright. The Association took that approach for several reasons. Trademark protection is a major institutional concern, as any Wisconsin Badger, Princeton Tiger, or University of California, Santa Cruz, Banana Slug can tell you. Yet trademarks and trade secrets have much less applicability than copyrights to faculty pursuing academic endeavors. Similarly, patents are important in the scientific and engineering disciplines and, increasingly, in the field of computer software. For many years, however, institutions and faculty members have enjoyed an understanding regarding ownership of patents, which is often also covered by specific statutes. Some state laws, for example, require institutional ownership at public colleges and universities, while federal law—under the Bayh-Dole Act—covers the ownership of patents developed through federally funded research. The act, passed in 1980, provides that the ownership of such patents rests with the institution, but mandates that royalties are to be shared between the individual inventor and the institution.

Copyrights

Historically, control over copyrights has not been as firmly settled as the practices governing trademarks and patents, probably because the monetary rewards for academic work that is copyrightable have been perceived as so small. Many colleges and universities have long had policies asserting institutional ownership over the copyrights to faculty-created works, but they seldom tried to enforce them until recently. With the advent of digital technology and the growth of distance education, however, the potential rewards seem more promising, and the costs and effort required to capture those rewards more reasonable. As a result, faculty and administrations initiated a sometimes contentious exchange in the 1990s over control of academic work.

Copyright law is grounded in the U.S. Constitution. Article I, Section 8, Clause 8, gives Congress the power to secure “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” for the specific purpose of promoting “the Progress of Science and useful Arts.” Under the Constitution, copyright law aims to promote useful knowledge, and the public benefit is paramount. The law allows creators to receive private benefits as an incentive, but their private gains must be balanced against those that go to the public. The public benefits not only from access to copies of works entering into the public domain for educational purposes, but also from new creators’ deriving new works from older ones. A vibrant public domain is essential to the “progress of science and useful arts.”

Prior to revolutions in the seventeenth and eighteenth centuries, both France and England used copyright—which served as a license required for printing—to enforce censorship. The poet John Milton wrote Areopagitica, a polemic for freedom of the press, as a speech for the “liberty of unlicenc’d printing.” Abolition of copyright was a battle cry for French revolutionaries as they stormed the Bastille and abolished the monarchy. In England the law began to change early in the eighteenth century as parliamentary authority gradually took precedence over royal power. A 1710 statute during the reign of Queen Anne defined the purpose of copyright law as the “encouragement of learning.” This “statute of Anne” became the framework for copyright law in this country.

Congress created the original U.S. Copyright Law in 1790, and has revised it several times since—most extensively in 1909 and 1976. The most recent overhaul occurred in 1998 with passage of the Digital Millennium Copyright Act (DMCA), which dealt with issues raised by digital technology. Some of the disputed history behind copyright law revision can be summed up in Mark Twain’s complaint to his notebook, “Only one thing is impossible for God: to find any sense in any copyright law on the planet.”

New Technology

The emergence of new technologies by the 1970s threatened to make much of copyright protection obsolete and helped drive the 1976 revision. Photocopying had made it physically easier to duplicate protected works, and other technologies created new forms of copyrightable works not envisioned in 1909, such as sound recordings and television and motion pictures. Important elements of the 1976 revision that affected higher education included providing a statutory definition for the judicial doctrine of “fair use”; extending the length of the copyright term to the life of the author plus fifty years, or seventy years for corporate-owned “works for hire”; and removing the requirement that authors register their copyright for federal copyright protection. (The length of the copyright term was legislatively extended by another twenty years in 1998.) Despite the care put into the 1976 revision, the development of digital computer technology made it necessary for Congress to revise the statute again within twenty years. For example, the act of pulling up a copyrighted article to read on the Internet violated existing law, because, technically, the computer was producing a copy. The DMCA addressed that issue by clarifying the concept of “fixing in tangible form” in the digital environment.

The same technological developments that led Congress to change the copyright statute so soon after the previous revisions also forced higher education as a whole to reexamine matters that had once seemed settled. For example, the 1976 revision had dropped requirements for copyright registration. As a result, many academic works not previously considered protected came within the scope of copyright. Course lecture notes, discussion and exam questions, syllabi, and student papers gained protection in addition to more traditional finished works such as books and articles. With the development (and commercialization) of distance education courses, purely ephemeral lectures became subject to copyright—and fodder for disputes between faculty and institutions over the ownership of those materials.

Policy Issues

As colleges and universities realized the implications of the law amid the technological revolution, many revisited their institutional policies. At some institutions, administrations unilaterally imposed changes on their faculties by fiat; at others, the policies became part of collective bargaining negotiations between faculty unions and administrations. At yet others, new arrangements were worked out through traditional governance mechanisms.

By the mid-1990s the seeming success of distance education, exemplified by the establishment of the Western Governors’ University and the growth of the for-profit University of Phoenix, led the AAUP to begin formally studying the implications of this mode of instruction. Many faculty members saw a direct threat to their role in the educational process as prefabricated courses were increasingly delivered over television or the Internet, or even substituted for courses offered on traditional campuses. Some argued that intellectual property policy was being used as a tool to transform courses into commodities, thus threatening the very existence of higher education as faculty knew it.

A subcommittee of the AAUP’s Committee on College and University Teaching, Research, and Publication prepared a report titled The Use of Technology in College and University Instruction, laying out a number of faculty concerns. It appeared in the May–June 1996 issue of Academe. Meanwhile, AAUP lobbyists faced questions about the implications of distance education at both the state and federal levels because of government promotion and funding of distance education programs. The Committee on Government Relations created its own subcommittee, which published a report titled Distance Learning in the May–June 1998 issue of Academe. The report proposed revision of the Association’s 1969 Statement on Instructional Television, focusing specifically on the impact of new technologies on academic freedom, workload, and intellectual property. It called explicitly for “presumption of faculty ownership and control of intellectual property created by faculty members in a distance learning context.”

In June 1998 the AAUP created the Special Committee on Distance Education and Intellectual Property Issues, charged with drafting policy in these areas. The special committee brought together different constituencies in the Association by including members of the AAUP’s standing committees on accreditation, government relations, and academic freedom; the teaching committee’s subcommittee on the use of technology in college and university instruction also participated, as did the staff director of a collective bargaining chapter.

The committee drafted two separate policy statements. The first focused on distance education and emphasized policies and practices to ensure academic quality. The second proposed Association policy on the ownership of copyright. Although the Statement on Distance Education contains a section on proprietary rights and educational policies that addresses intellectual property, the Statement on Copyright is the first major Association pronouncement on intellectual property in higher education.

The guiding assumption of the Statement on Copyright is that the faculty member or members who create intellectual property own the property:

Prevailing academic practice has treated the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes. Examples include class notes and syllabi; books and articles; works of fiction and nonfiction; poems and dramatic works; musical and choreographic works; pictorial, graphic, and sculptural works; and educational software, commonly known as “courseware.” This practice has been followed for the most part, regardless of the physical medium in which these “traditional academic works” appear, that is, whether on paper or in audiovisual or electronic form. . . . This practice should therefore ordinarily apply to the development of courseware for use in programs of distance education.

The Statement goes on to articulate why academic work is not work for hire—or that done at the behest of an employer who determines the nature of the work. The Copyright Act assigns ownership to the work’s author, but in a work-for-hire situation, the employer is considered the author and owns the copyright. In the academic context, the faculty-creator determines what work to pursue. Institutional ownership of such work, which gives a college or university the power to edit, revise, and prepare derivative works, and to publish or not to publish, is totally “inconsistent with fundamental principles of academic freedom,” in the words of the Statement.

Having established that principle, the Statement identifies certain carefully defined and limited circumstances where institutions can legitimately claim an ownership share of work created by faculty members. These include those few instances in which faculty members create products that can be considered work for hire—such as when an art history professor is hired to produce a catalogue for an exhibit at a campus art museum. Such an arrangement, however, would require a written agreement prior to the commencement of the work.

Other types of work that could justify institutional ownership include “contractual transfers” and “joint works.” A contractual transfer can arise in a grant arrangement that assigns ownership to a particular party. Such an agreement would override the presumption of faculty ownership, since it would be a condition upon which funding depended. Joint works involve institutional support that rises above the level of “resources, facilities, or materials of the sort traditionally and commonly made available to faculty members.” Sometimes, an institution may provide such an extraordinary level of support that it has a strong claim to co-ownership of the work created. Under the Copyright Act, joint authors share all the rights of ownership of a work.

In closing, the Statement emphasizes the need for individual faculty members to negotiate “ownership, control, use, and compensation” in advance and to demand a written agreement from the institution. Doing so is especially critical “when the institution seeks to depart from the norm of faculty copyright ownership.”

Follow Up

The special committee drew on the Statement on Copyright to draft documents that provide suggestions and guidelines for language defining institutional policies and contracts on the ownership of intellectual property. The staff makes use of these materials to advise chapters and members on proposed institutional policies. These documents are also available in the Issues section of the Association’s Web site <www.aaup.org>.

Although it took the AAUP a long time to develop a policy on intellectual property, with the adoption of the Statement on Copyright, it has entered the arena completely. Members and chapters rely on AAUP guidelines in their negotiations and discussions dealing with the campus-based policies and issues that emerge. Meanwhile, the Association’s government relations staff monitors state and federal legislative initiatives on intellectual property. In the last five years, the AAUP has lobbied on several different bills affecting the public domain, the scope of copyright, the use of copyrighted materials in digital distance education, and even a state bill in California protecting faculty rights from note-taking companies.

Protecting the right of faculty to control the works they create remains crucial to the Association. At the same time, the AAUP remains committed to the dissemination of knowledge through the promotion of a strong public domain, use of teaching exemptions to the Copyright Act, and fair use of copyrighted works for educational purposes. Faculty control of academic work is essential, but professors must remember the educational mission at the core of their work. As literary scholar F. O. Matthiessen wrote in the beginning of his 1941 book, American Renaissance, “The true function of scholarship, as of society, is not to stake out claims on which others must not trespass but to provide a community of knowledge in which others may share.”

Mark Smith is AAUP director of government relations.

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