By providing internet access and publishing capability, we can be held liable for infringements of faculty and staff, and perhaps even of students (unrelated third parties). It is of the utmost importance to have and follow a policy for addressing allegations of infringement. The Digital Millennium Copyright Act protects us and other internet service providers only if we act strictly in accordance with its requirements. See Library as ISP for more information.
Copyright owners are having considerable success lately pursuing strategies to narrow the scope of fair use, to hold internet service providers liable for the infringements of their customers, let alone their employees, and to make license agreements that practically no one reads legally enforceable. They have also persuaded our legislature to create new rights for users to violate.
However, the internet offers a unique opportunity for universities to take a more active role in the management of our copyright properties, to more efficiently and effectively facilitate our research and educational mission.
A comprehensive intellectual property policy supports university research and educational missions
Universities must be involved in legislative debate. Since we are both owners and users of copyright works, we have important interests at stake. Our needs are routinely ignored in legislation that is introduced nearly every session of Congress. The direction that amendments to the Copyright Act have taken over the last couple decades make clear that we should be considering right now how to best obtain broad clearances from the rights holders whose works we depend so heavily upon on a daily basis; how to better protect our interests in scholarly works created at our institutions; and how to minimize the risk of university liability for employee and third party infringements of online materials.
17 USC Section 201(a) vests ownership of copyright in a work with the author of the work. Section 201(b) provides that the employer or other person for whom a work-for-hire is prepared will be considered the author for copyright purposes. Works-for-hire are works created by employees within the scope of their employment, or by others pursuant to written contract if the work created falls into one of the nine categories set out in the definition of work-for-hire in Section 101.
University intellectual property policies
Universities have for the most part altered the statutory scheme either through tradition or through policies that permit faculty ownership of their scholarly writings and educational materials. It is unclear whether the law would compel the conclusion that faculty writings are works within the scope of employment, but resolving the issue seemed of little consequence until recently. As we will discuss in a moment, this policy has contributed to the escalating prices universities must now pay to buy back the scholarly works their own and federal taxpayer funds helped to create.
The allocation of ownership interests in the end products of university research is just one policy consideration. Today there are more subtly nuanced variations on the once-straightforward theme of ownership of works created on our campuses:
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