What's Yours Is Mine?

Article excerpt

Faculty are bombarded daily with information from myriad sourcesjournals, magazines, book catalogs, electronic updates, summaries, and digests. We scan, ponder, copy, forward, debate, lecture on, and file them, but do we ever think about who owns all that information we are so blithely sharing?

Faculty members are both creators and users of intellectual property. They write books and teach them; purchase and publish them, research and reserve them. For classes, some books go on reserve, some materials go into course packs, and some copied excerpts are handed out in class. But who owns faculty work, who can use it, and how?

Copyright law gives ownership to the author as soon as a work is fixed in any tangible medium of expression. Yet copyright is not violated if the work is copied for one of the enumerated "fair use" purposes. (Fair use provides that it is not an infringement of copyright to reproduce copies for criticism, comment, news reporting, teaching, scholarship, or research, depending on a balance of four factors-the purpose, nature, amount, and effect of the use.) Furthermore, copyright belongs to the employer, not the author, if it is created as a "work for hire."

Few legal cases on faculty ownership exist. In 1988, scholar, law professor, and prolific author Judge Posner noted in Hays v. Sony Corp. that "although college and university teachers do academic writing as part of their employment responsibilities and use their employer's paper, copier, secretarial staff and (often) computer facilities in that writing, the universal assumption and practice was that the right to copyright such writing belonged to the teacher rather than the college or university." So too, Judge Easterbrook (also a law professor), opined in Weinstein v. University of Illinois in 1987 that "the University . . . had no more power over [the professor's] manuscript than it did over the title to [his] car or [his] family heirlooms."

The AAUP's Statement on Copyright similarly notes that faculty work presumptively belongs to the faculty, and that work-for-hire situations are those special situations where works are "created as a specific requirement of employment or as an assigned institutional duty . . . [or where the institution] provides the specific authorization or supervision for the preparation of the work." Any other conclusion simply doesn't make sense. As the statement points out, institutional ownership of faculty's academic work would allow the administration to decide where the work is to be published and to edit and otherwise revise it, and to censor or forbid dissemination of the work altogether. Such power is inconsistent with academic freedom. …