Academia, Academe, and Intellectual Property

Faculty action protecting intellectual property must come soon.
By Dànielle Nicole DeVoss

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.—F. O. Matthiessen

Once, professors trafficked ideas. Now, we create intellectual property. Intellectual property is what happens to ideas once they have been converted into exclusive, saleable commodities, subject to the same legal and economic principles as any other form of property.—Lawrence Hanley

Intellectual property (IP) arguably implicates all of our work as faculty members. We are bound in some areas by work-for-hire contracts with our institutions—we use the resources of our colleges and universities to produce intellectual materials that could be seen as the property of our institutions, springing forth from our minds, conveyed to computer screens by our fingers, yet fettered by our computers’ hard drives (university property), posted on course-management spaces (university contracted), shared by e-mail (often using institutional servers), and perhaps even printed on the departmental laser printer, using departmentally provided paper.

When we produce work and send it off, the outcome we hope for is a publication contract, which typically includes a copyright-release clause, where we acknowledge that we are assigning our rights to copy to the publisher and its representatives. We transfer these rights because, following the US copyright revisions of 1976, the copyright to our work is anchored upon its moment of creation—and that right to copy is immediate and absolute. Copyright guarantees us unfettered discretion to reproduce a work, prepare derivative work, distribute copies of the work, transfer ownership of the work, lease the work, and perform and display the work publicly. We sign over these rights to publishers in exchange for their production and distribution of our work.

When we celebrate a publication by tweeting our good news or posting a status message on Facebook or another social media space, we’re using proprietary systems that—because of the detailed terms-of-use statements to which we consented when we created our accounts—could arguably own all of our posts, photos, and the other bits and bytes of our digital lives as we live them through those interfaces. Often, the technology running underneath these spaces (for example, the “feed” functions, the search features) are protected property of the parent companies, as are the visible interface features (for instance, the associated logos or trademarks).

This issue of Academe celebrates the one hundredth anniversary of the American Association of University Professors—an organization active in issues of intellectual property since its inception in 1915—by looking ahead to the organization’s second century. It is a critical moment to review the AAUP’s publications and trace the course of conversations about intellectual property.

When I began writing this article, I worked across two university-contracted, library-accessible, password-protected spaces, both of which are trademarked, proprietary databases. The search tools through which each provides access to content are registered products of each database organization. Each search result—each individual news piece, commentary, or feature—was marked “Copyright American Association of University Professors.”

This is a long way of stating what isn’t perhaps obvious to many of us, but what should be obvious to all of us, and of making a point that rhetoric and composition researcher and poet Steve Westbrook has articulated quite well in his work: whenever and whatever we write, we are always already implicated in intellectual property.

Threads of Discussion

In the second volume (1916) of the Bulletin of the American Association of University Professors, the AAUP’s first president, John Dewey, reporting on the work of the Committee on University Ethics, suggested issues for the committee to discuss, including ethical boundaries, ownership of formulas, and copyright protection. Writing in the Bulletin in 1932, H. L. Russell pondered whether university staff members might seek patent protection—an issue that remained under debate until (and certainly beyond) the 1980 Bayh-Dole Act. Carl White, in a 1941 Bulletin article, described the rich repositories of material no longer covered by copyright, noting that although faculty members could reproduce the material, university libraries were not permitted to do so. Before the doctrine of fair use was articulated, White explained, the right of faculty members to copy derived from a “gentlemen’s agreement with publishers” rather than from any code or regulation. This relationship changed with the 1976 copyright law revisions that served to anchor fair use. To fast forward: the first issue in the one-hundredth volume of Academe, published in 2014, featured a piece by Rebecca Gould, in which she memorialized programmer and open-source activist Aaron Swartz, who, at the time of his suicide, faced thirteen felony charges related, in part, to downloading and uploading copyright-protected, database-mined books and articles to file-sharing networks to declare opposition, as he put it, “to this private theft of public culture.”

A landmark piece appeared in the AAUP Bulletin in 1949: an address by Sam Bass Warner—then the register of copyrights for the United States—delivered at the Thirty-Fifth Annual Meeting of the AAUP. In “Copyrights and the Academic Profession,” Warner briefly traced copyright law, noting its emergence through the Statute of Anne in 1710 and its US codification in 1790. At the time that Warner delivered his address, most work produced in Western Europe was immediately copyright protected upon its creation. In the United States, however, registration was a separate act required to secure copyright protection. In his address, Warner argued for the value of not having automatically fixed copyright protection, stating that “I need not tell you how valuable it is to you and other scholars to have all these materials free from all restrictions, rather than have them protected by copyright.” Warner also argued that the standard in the United States—with its fixed and definite period of time to copyright expiration—was preferable to Western Europe’s “life of the author plus fifty years hereafter.” Of course, both aspects of US copyright law that Warner praised in 1949 were erased with the 1976 changes to copyright. (It is likely that Warner helped to foment opinions among AAUP leadership, which resulted, as one 1998 Academe article stated, in the AAUP’s playing “a leading role in opposing the guidelines included in the legislative record of the 1976 Copyright Revision Bill because of their overly restrictive nature.”)

Warner, previously a professor and a self-proclaimed “academic at heart,” described his professorial approach to copyrighting his work, arguing that “never to my knowledge has the copyright law helped me. Instead of trying to prevent other people from reprinting what I have written, I have always been delighted when they did so.” He admitted, later in the address, however, that others may find more commercial value in their work, and he encouraged the attendees to “copyright it, so that you, rather than some literary pirate, shall reap the monetary reward.”

In offering advice for using the copyright-protected property of others, he told attendees to look for a copyright notification in a publication, arguing that if one were absent “you are safe in assuming that it is not under copyright and that you may lawfully copy from it. There is the theoretical possibility that there may be an authorized edition with a copyright notice in it and that you are looking at a pirated edition, but this possibility is so unlikely that you are justified in ignoring it.” His final advice to faculty members unable to assess whether or not a work was still copyright-protected is to “calculate the risk you are taking and then balance it against the value to you of the material you wish to copy. In most cases I think your answer will be that you can find other and better material to copy.”

The address by the US register of copyrights marked an important moment in the history of the AAUP and of this publication. Many other moments constellate around it: discussions of intellectual property appeared in the Bulletin and then in Academe in the 1950s and subsequent decades. Not surprisingly, these conversations peaked in the 1990s and the early 2000s, in part because of three key changes: first, changes in digital technologies; second, transformations in distance education (many of which were brought on by new technological means for course delivery); and, third, revisions to copyright law (many of which were likewise spurred by the vast technological changes brought about by the World Wide Web in the 1990s). I encourage readers to linger over the work published in the Bulletin and Academe over the past hundred years, and specifically to consider tracing the rich, robust conversations, debates, and commentary on issues of copyright, patents, and more. Some of the key pieces published in Academe in recent years are available on the AAUP’s website at http://www.aaup.org/ip, while older work is available through JSTOR and university libraries.

Intellectual Property at Risk

In 1998, a subcommittee of the AAUP’s Committee A on Academic Freedom and Tenure was formed to address intellectual property rights. In a 1998 report, the subcommittee provided five reasons why IP issues are complex in educational settings:

1. Colleges and universities are at once major suppliers and consumers of intellectual property.
2. The intellectual property created within colleges and universities is often the product of multiple creators who share other important relationships (such as graduate student and supervisor).
3. Both the creation and use of intellectual property within the academy are carried out by a diverse array of individuals.
4. Creative activity within colleges and universities is supported by a variety of sources, including direct government investment and private funds from endowments, alumni, foundations, and business.
5. The creation and use of intellectual property within colleges and universities are intrinsically related to the core activities of those institutions— teaching, research, scholarship, and service.

One of the key issues raised in the report related to who makes IP decisions. The question resonates even more today, given the current climate of budgetary constraints and declining state funding, labor politics, the corporatization of universities, changes in faculty work, distance education, and new technologies.

In October 2013, the AAUP launched an intellectual property initiative, identifying IP as including patents, copyrights, trademarks, and trade secrets and arguing that IP rights are (or should be) a key concern of university faculty. In November 2013, the IP subcommittee released its Statement on Intellectual Property, which noted, “The management of inventions, patents, and other forms of intellectual property in a university setting warrants special guidance because it bears on so many aspects of the university’s core missions, values, and functions, including academic freedom, scholarship, research, shared governance, and the transmission and use of academic knowledge by the broader society.” Indeed, adopting general or primarily corporate approaches to IP is an inappropriate step when considering the work of college and university faculty.

Let us return to the question of who makes IP-related decisions on today’s campuses. I would argue that we must. As faculty members implicated in issues of intellectual property, we should learn the policies and practices of our institutions. Likewise, we should study the policies and laws of our nation. We should familiarize ourselves with resources and be ready to argue for fair use, the TEACH Act (a 2002 extension of the US Copyright Act providing leeway for educators to use copyright-protected materials in distance learning and other online contexts), and academic freedom in the context of intellectual property. One such resource for doing so is a 2013 AAUP report, Defending the Freedom to Innovate: Faculty Intellectual Property Rights after “Stanford v. Roche,” intended to “put the dialogue on intellectual property on a new path, one that leads to a principle-based restoration of faculty leadership in setting policy in this increasingly important area of university activity.” This report and its parent document, Recommended Principles to Guide Academy-Industry Relationships, are valuable tools we can use to educate ourselves and our colleagues and to leverage our institutions.

Another rich resource is the “Intellectual Property Education and Action Toolkit,” available on the AAUP’s website. The toolkit is framed by a call to action: “Everyone on campus needs to learn more about the law, the issues at stake, and the rights they can assert through collective action.” All institutions have work-for-hire policies, copyright-negotiation offices, librarians, and others who either craft or at least help the community navigate the regulations, policies, and expectations. Mapping institutional dynamics is a good first step—and a local one that helps to situate the larger, more global copyright context. Then, we must advocate. The most immediate outlets for advocating for intellectual property in an academic context are in our local spaces and institutional committees and offices. We also have established and robust national venues for participation, including, as evidenced here, the AAUP.

Whether you champion open-source resources, fair-use provisions, the freedom of teachers to use copyrighted materials, the ability of faculty members to patent discoveries, or your own right to preserve, protect, and distribute your work, all faculty members must take some action in the face of digital, national, institutional, legal, and other frameworks that both allow and restrict the work we do, how it circulates, and who controls it.

Dànielle Nicole DeVoss is a professor of professional writing at Michigan State University and the 2015–16 junior chair of the Conference on College Composition and Communication Intellectual Property Caucus. Her e-mail address is devossda @msu.edu.

Further Reading

Academe has a long history of attending to intellectual property concerns. Some key historical pieces include the following:

Young, A. A., John Dewey, and R.M. Wenley. “Announcements from Committees.” AAUP Bulletin 2, no. 3 (1916): 17–19.

Russell, H. L. “Shall University Staff Members Seek Patent Protection?” AAUP Bulletin 18, no. 4 (1932): 269–273.

White, Carl M. The University Library and the Scholar. AAUP Bulletin 27, no. 3 (1941): 305–318.

Articles that emerged in tandem with the changes to US Copyright in the mid-1970s include:

Stedman, John C. “Copyright Developments in the United States.” AAUP Bulletin 62, no. 3 (1976): 308–319.

Stedman, John C. “The New Copyright Law: Photocopying for Educational Use.” AAUP Bulletin 63, no. 1 (1977): 5–16.

Stedman, John C. (1978). “Academic Library Reserves: Photocopying and the Copyright Law.” Academe 64, no. 3 (1978): 142–149.

Not surprisingly—due to changes in digital technologies, transformations in distance education (many of which were brought on by new technological means for course delivery), and revisions to copyright law (many of which were likewise spurred by the vast technological changes brought about by the World Wide Web in the 1990s)—attention to intellectual property grew in the late 1990s and early 2000s; see:

Crews, Kenneth D. “Fair Use and Higher Education: Are Guidelines the Answer?” Academe 83, no. 6 (1997): 38–40.

Rubiales, David, Melvin T. Steely, Craig E. Wollner, James T. Richardson, and Mark F. Smith. “Distance Learning.” Academe 84, no. 3 (1998): 30–38.

Liebsekind, Julia Porter. “Risky Business.” Academe 87, no. 5 (2001): 49–53.

Rhoades, Gary. “Whose Property is It?” Academe 87, no. 5 (2001): 38–42.

Slaughter, Sheila. “Professional Values and the Allure of the Market.” Academe 87, no. 5 (2001): 22–26.

Bollier, David. “The Enclosure of the Academic Commons.” Academe 88, no. 5 (2002): 18–22.

Hanley, Lawrence. “From the Editor: Who Owns Your Ideas? Academe 88, no. 5 (2002): 2.

Smith, Mark. “Intellectual Property and the AAUP.” Academe 88, no. 5 (2002): 39–42.

Nelson, Cary R., Gerald Barnett, Robert A. Gorman, Henry Reichman, Eileen Zurbriggen, and Aaron M. Nisenson. “Defending the Freedom to Innovate: Faculty Intellectual Property Rights after Stanford v. Roche.” Academe 100, no. 4 (2014): 38–56.

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