What were they thinking?

When the Chronicle of Higher Education ran this story about the relatively new intellectual property policy at the University of Louisiana, one of my colleagues reacted with the question in my title.  It is a valid thing to ask — how did the University system think this was going to go when they drafted the new policy?  The same forces that presumably led to revision of the policy in the first place — increasingly various and potentially profitable work created for the online environment — will also lead faculty authors and creators to pay more attention to IP policies.

It seems the university system has been surprised by the opposition the policy has generated, but such surprise speaks poorly of their awareness of the realities on their own campuses.  I am reminded of the surprise that content industries have expressed at the opposition to the Stop Online Piracy Act or the European dissent over ACTA.  What, exactly, did they expect?  The days when no one pays attention to such policies are past, and that is a very good thing.

The works created by faculty raise a complicated situation in a couple of ways, and need to be treated differently than works created by employees in a corporate environment.  For one thing, there is the issue of academic freedom.  Although the copyright law could well support the claim that all faculty works, even traditional scholarship like journal articles and books, are work for hire, the case would be much more complicated than the university system seems to imagine.  As I say, academic freedom would pose a unique obstacle, since courts have recognized a First Amendment interest in academic freedom.  So there is a constitutional argument could be used to counter a work for hire claim at a public university.  Also, there would be an argument over the traditional “teacher exception” that courts recognized for many years.  Although there have been no decisions definitively invoking the teaching exception since the 1976 Copyright Act took effect, it would still provide a line of defense against work for hire claims that the universities would struggle to overcome (this article by one of the scholars quoted in the article explains this ambiguous situation).

Then, of course, there are the practical problems.  Having a policy like this is sure to make it harder for the universities in the Louisiana system to recruit top faculty.  Even if individual campuses modify the policy into something wholly different than the system-wide template, which they would be wise to do, the question will always hang over recruitment, and the balance of decision-making may be tilted in some cases involving highly productive  and savvy professors.  On the university side, the mountain of paperwork they will create for themselves if they really undertake to review every contract for publication seems not to have occurred to the drafters.  But any small additional profit they could hope to make by claiming a portion of royalties is sure to be devoured by increased administrative costs.

As I read the article, I was struck by the sense that the university system was trying to create a single policy that would treated patented works and those subject to copyright in the same way.  Any superficial sense that this might seems to make is easily dispelled, however; there a good reasons to deal differently with these two varieties of intellectual property.  Copyright, for one thing, is easy and cheap to get.  It is, in fact, automatic whenever original expression in fixed in tangible form.  There is no need for the university employer to intervene to help the employee creator protect her rights.  With patents, the situation is wholly different.  Patents are difficult to get and it usually requires an investment of tens of thousands of dollars to successfully “prosecute” a patent.  And patents, when they generate a profit (which few actually do), offer much larger gains.  So creators need more help from the university to get a patent, and universities have a greater incentive to provide that assistance, than is the case with copyright.

Also, the “significant use of university resources” is really quite different with copyrighted materials than it is with patents.  Often the resources employed to create something subject to copyright are resource the university would supply in any case — a library, computers in faculty offices, art supplies for artists who both create and teach, a video camera in a dance studio, etc.  Resources used in equipping labs to pursue patentable inventions, on the other hand, are often extremely specialized and sometimes costs millions of dollars.

This does not mean that the copyrighted productions of a faculty are less important than those subject to patents; their very ubiquity testifies to how vital such works are to the tasks of teaching and research.  But the conditions of creation are so different that policies that conflate the two are seriously misguided.

One point I try to make whenever I discuss copyright ownership policies on university campuses is that such policies should distinguish between ownership of the underlying rights and uses that other parts of a scholarly community can be licensed to make.  For example, a university need not claim ownership over the design of an online course by a faculty member as long as it assures, by policy or by separate agreement, that it has a perpetual license to use that courseware.  Thus the faculty member’s academic freedom and reasonable expectation to own her own work is upheld, but the university does not have to worry about having to redesign the course if the faculty member leaves or to pay her twice for it.  The designer, of course, is also able to reuse her work at a new institution, so everyone’s needs can be met.  A careful policy on copyright ownership should be a kind of matrix that identifies types of works and groups of users who might have an interest in those various kinds of works.  Then the decision about ownership can be made at an appropriately granular level, and the use rights of those with recognized interests in each category can also be assured.

Copyright ownership policies are important, and becoming more so everyday.  Campuses that do not have such policies need to remedy that situation sooner rather than later, and before conflicts develop that will leave the decision to courts applying the default rules of the copyright law.  The policy proposed by the University of Louisiana System is a poor model and an apparently ill-considered stab at such a policy.  But if the controversy it has generated causes faculty in Louisiana and elsewhere to think hard about these issues, perhaps some good will result.