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Legal Watch: What's Yours Is Mine?
By Ann Springer
Faculty are bombarded daily with information from myriad sources—journals, magazines, book catalogs, electronic up-dates, summaries, and digests. We scan, ponder, copy, forward, debate, lecture on, and file them, but do we ever think about who owns all that information we are so blithely sharing?
Faculty members are both creators and users of intellectual property. They write books and teach them; purchase and publish them, research and reserve them. For classes, some books go on reserve, some materials go into course packs, and some copied excerpts are handed out in class. But who owns faculty work, who can use it, and how?
Copyright law gives ownership to the author as soon as a work is fixed in any tangible medium of expression. Yet copyright is not violated if the work is copied for one of the enumerated "fair use" purposes. (Fair use provides that it is not an infringement of copyright to reproduce copies for criticism, comment, news reporting, teaching, scholarship, or research, depending on a balance of four factors—the purpose, nature, amount, and effect of the use.) Furthermore, copyright belongs to the employer, not the author, if it is created as a "work for hire."
Few legal cases on faculty ownership exist. In 1988, scholar, law professor, and prolific author Judge Posner noted in Hays v. Sony Corp. that "although college and university teachers do academic writing as part of their employment responsibilities and use their employer's paper, copier, secretarial staff and (often) computer facilities in that writing, the universal assumption and practice was that the right to copyright such writing belonged to the teacher rather than the college or university." So too, Judge Easterbrook (also a law professor), opined in Weinstein v. University of Illinois in 1987 that "the University . . . had no more power over [the professor's] manuscript than it did over the title to [his] car or [his] family heirlooms."
The AAUP's Statement on Copyright similarly notes that faculty work presumptively belongs to the faculty, and that work-for-hire situations are those special situations where works are "created as a specific requirement of employment or as an assigned institutional duty . . . [or where the institution] provides the specific authorization or supervision for the preparation of the work." Any other conclusion simply doesn't make sense. As the statement points out, institutional ownership of faculty's academic work would allow the administration to decide where the work is to be published and to edit and otherwise revise it, and to censor or forbid dissemination of the work altogether. Such power is inconsistent with academic freedom.
How that faculty-owned book might be used in the classroom, though, continues to be litigated. Use of excerpts in class to facilitate discussion is a long-standing practice historically protected by fair use. As the practice has become more widespread, though, and copy shops widely and openly sell professors' compilations of excerpts from different published materials at a profit to students, the lines began to blur. A few cases in the 1990s addressed this issue, finding that while the fair use doctrine "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster," it does not provide "blanket immunity for 'multiple copies for classroom use.'"
The issue was recently raised again, and in a whole new context, in a case filed by six publishers against two copy shops and an online service that distributes course packs electronically. The publishers once again argue that copying portions of published copyrighted material and selling them for profit, while failing to pay licensing fees, is theft, not fair use. Yet here the argument is bolstered by the widespread distribution allowed by the electronic format of the documents: the electronic distribution makes it more difficult to argue that adherence to the limited nature of the fair use exemption remains. (The suit also alleges false advertising, noting that the owner of the services induced faculty to use his shop by claiming that they need only sign an "academic use agreement" to avoid licensing fees.)
Thus faculty should be conscious of copyright ownership, to protect both their own work and that of their colleagues. When author-professors branch beyond the traditional book, creating distance education courses, computer programs, and other works, they should be sure to clarify ownership before the issue arises. Be aware of institutional policies, and when necessary, enter into explicit written agreements before accepting special resources. When putting together courses, consider copies of excerpts carefully. How truly limited is the distribution? Are you using the same materials in class after class? Is the section too big simply to copy and hand out in class? All might be indications that perhaps permission and licensing fees are in order. We must protect the freedom to research, to discuss, to teach, to create. And, if we wish to protect our rights to our own works, we must also respect the rights of others.
Ann Springer is AAUP associate counsel.
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