Aug. 8, 2005

University as Author?

The Kansas Supreme Court will soon decide whether the Kansas Board of Regents has to negotiate its intellectual property policy in the future, or whether it can simply hand down a decree – even one that asserts ownership of all faculty work.

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If the court upholds the decision of a lower court, public institutions in Kansas will have the right to claim ownership of any faculty work, including books. In the current policy, faculty members keep their book rights, and revenue sharing is built in for technology copyrights, but, “if [the board] can unilaterally enact a policy, then tomorrow they could turn around and say ‘we own it, we get all the royalties,’” said John Mazurek, a lawyer representing the Kansas National Education Association.

The intellectual property policy was designed unilaterally by the board, which governs all public four-year colleges and universities, in 1998. Before the board passed it, KNEA, an affiliate of the National Education Association, requested the chance to negotiate the policy, to no avail, according to court papers. So KNEA filed a complaint with the Public Employee’s Relations Board on behalf of faculty members at Pittsburg State University, the only four-year college in Kansas at which it has members that it represents in collective bargaining. The public employee board upheld the board’s right to institute an intellectual property policy sans negotiations, saying that the university owns work done by employees. The decision was reversed in district court, and then reversed back to the original decision in Kansas appellate court, based on the finding that the university, which was held by the court to be the rightful author of faculty members’ work, cannot be forced to negotiate away its intellectual property rights.

In making the decision, the court treated faculty work as “work for hire,” under federal copyright law. Much the way Microsoft owns computer codes written by its employees, the court classified scholarly work as within the scope of employment of a faculty member, and thus granted ownership to the institution.

Experts say that lucrative biotechnology patents, computer codes, and distance learning material have made intellectual property an issue of growing importance to faculty members. Earlier this year, the City University of New York was told by a state court that it had to bargain with faculty members over intellecutal property policy.

Some experts say that granting ownership of all intellectual property to an institution will harm academic freedom. Ann Springer, associate counsel for the American Association of University Professors, which filed a brief on the dispute, said that if colleges own their professors’ works, then they are also responsible for the content. “They would have to review everything that is written,” she said, adding that if the university were considered responsible for content, it might seek to contain controversial content. “I don’t think [the University of] Colorado wants to be responsible for all of Ward Churchill’s writing, but they would be.” She added that faculty members would have far less incentive to innovate if the institution could claim full ownership of their work.
In court proceedings, the Board of Regents maintained that, because faculty members are expected to produce intellectual property as part of their employment, the “work for hire” provision of copyright law guides intellectual property policy, and it need not be negotiated. The current intellectual property policy does have revenue sharing built in. For example, a faculty member who develops software gets “no less than twenty-five percent” of revenues, after development costs are covered. Under the policy, the ownership of books, articles, maps, charts, and artistic works are given fully to the creator, with the institution taking only “royalty-free use” within the institution.

Still, it is the fact that the policy can change at any moment that worries some people. “It ultimately hurts the university setting,” said David Schauner, the general counsel for KNEA. “If I’m a professor that’s about to invent a plastic that will revolutionize the world, and the university can take full ownership, I’ll do it in the private sector.” Schauner said that at the University of Kansas and Kansas State University, faculty members have been able to negotiate individual deals with the Board of Regents over commercially viable products. But Pittsburg State, which he said doesn’t produce a lot of lucrative scholarly work has been left with no bargaining power. “A professor at Kansas can cut a good deal,” Schauner said. “But what if I’m a lesser somebody that stumble on something big?”

Said Springer, “Work-for-hire just doesn’t fit here. These aren’t Ford employees writing a company brochure. If our interest in a few lucrative computer programs leads us to where the only scholarly voice is that of institutions, not scholars, we undermine what makes our education system strong.”

— David Epstein

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