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Court Ruling Favors Faculty Rights
By Ann Springer
In an opinion recognizing the importance of faculty members’ ownership of their own intellectual property, the Kansas Supreme Court ruled in November that intellectual property is not simply assumed to be work-for-hire belonging to the university and can be a subject of collective bargaining. The case, Pittsburg State University/Kansas NEA v. Kansas Board of Regents, PSU and PERB, involved a challenge by the Kansas National Education Association to the Kansas board of regents’ proposed policy giving ownership of faculty members’ intellectual property to their universities. A Kansas appellate court ruled in 2004 that copyright ownership was not a mandatory subject of bargaining, because such a practice would conflict with a provision in federal law that an author may negotiate away his or her intellectual property rights but cannot be required to do so. The appellate judge reached this decision by assuming that the faculty members’ intellectual property was work-for-hire and thus the property of the university. The Kansas Supreme Court, however, found this to be an “incorrect application of federal copyright law.”
The AAUP filed an amicus brief in the case that addressed the issue of faculty scholarship as work-for-hire. The brief argued that the work-for-hire doctrine does not include faculty intellectual property and noted that federal appellate court decisions, traditional academic practices, and notions of academic freedom all point to faculty members’ retaining ownership of their scholarly work as original authors. The Kansas Supreme Court recognized this concern, citing the AAUP’s arguments and noting that to assume universities’ blanket ownership of faculty intellectual property was “too big a leap.” Rather, the court concluded, the question of ownership of faculty work is a complex one, depending on a careful analysis of the employment relationship and the reason for and method of creation of the work itself. The court cited the AAUP’s Statement on Copyright, and recognized that faculty intellectual property ownership cannot be treated simply as the work of an employee belonging to an employer, but rather “will necessarily involve not just a case-by-case evaluation, but potentially a task-by-task evaluation.” A copy of the AAUP brief is available in .pdf format.
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