Intellectual Property: The Rights of Faculty as Creators and Users

Article excerpt

FACULTY RIGHTS TO INTELLECTUAL PROPERTYthe shorthand term used to denote legal rights in products of the mind-have become a hot issue on the nation's campuses. Indeed, increased appreciation of the commercial value of such property, which includes motion pictures, recorded music, and computer programs, has triggered a major debate. Within the academic community, that debate has been heightened by the new technologies that are briskly being incorporated into our research and teaching and by the budgetary constraints that have induced university administrations to assert rights as creators of intellectual property and to curtail expenses as users of it. Faculty members, as both creators and users of intellectual property, are often ambivalent about how vigorously it should be protected. This uncertainty is compounded by the fact that the governing legal rules are thoroughly unclear.

Two issues are causing considerable concern with regard to faculty rights. One has to do with ownership of intellectual property, the other with the use of copyrighted works in our teaching and research. Because these issues raise important questions of faculty rights, the professoriate must not only identify its claims and interests more clearly, but must also make itself heard in the establishment of university and even federal policy.

Intellectual property embraces the fields of copyright, patent, trademark, trade secrets, unfair competition, and other legal labels. For many (including some judges), these fields tend to run together in a blur; they are, however, distinct in many important respects. Copyright, the field I know best, is today the one in which we are being overcome by perplexities and debate. Perhaps because patents-long generated by engineers, physicists, and medical school professors-have been lucrative for longer than copyrights, and perhaps because the law is a bit clearer for patents (at least with respect to the central question, Who owns it?), universities and professors have more or less successfully worked out a modus vivendi that generally allows universities to license inventions commercially and share the royalties with faculty inventors.

The situation is otherwise with copyright-the bundle of rights given initially to the author of a work of literature, music, or art. Included in that bundle are the rights of reproduction; of translation, abridgment, and revision (the right to prepare so-called derivative works); the right of public distribution; and the rights of public performance and display. Covered works include not only scholarly books but also private letters, computer programs, informational directories, and motion pictures and other audiovisual works. Protection is extended regardless of the tangible form in which the work assumes shape, whether it be writing or print on paper, paint on canvas, computer circuitry, or even, almost certainly, digital electronic impulses generated by authors in electronic mail and over the Internet. Moreover, contrary to popular belief, copyright attaches as soon as a work is fixed in a tangible form; despite some benefits to doing so, there is no need to use a copyright notice or to register the work with the U.S. Copyright Office.

Ownership of Copyright in Works Created by Faculty

FOR THE MORE THAN TWO HUNDRED YEARS SINCE our first national Copyright Act was enacted by the first Congress, copyright in faculty-created works has been something of a neglected niche in the law. One finds, for example, fewer than a handful of reported court decisions on who-the professor or the university-owns the copyright in works created by a faculty author. Historically, hardly anyone has cared. But that has changed within the past decade or two, as a direct by-product of high technology, especially the digital computer.

Universities that were perfectly well prepared to let Professor Jane Smith reap the meager rewards of publishing her treatise on the formation of stalagmites-or to reap the nonrewards of publishing her journal article on the subject-suddenly came to attention when science faculty created computer programs with significant economic value. …