Academic journal article Missouri Law Review

A Fresh Look at Copyright on Campus

Academic journal article Missouri Law Review

A Fresh Look at Copyright on Campus

Article excerpt

ABSTRACT

The role of copyright on the modern college and university campus is overdue for fresh examination. Copyright ownership issues and related contests over rights risk impeding higher education's ability to serve as a cultural and knowledge commons, a specially constructed space where human and artifactual resources interact in ways that benefit society at large. At present, copyright concerns raised by trends involving student entrepreneurship, the digital humanities, and the digitization of special collections material housed in campus libraries threaten higher education's potential to benefit society to the fullest.

This Article reviews developments in these three areas of higher education through the lens of copyright, examining, in particular, the copyright ownership--as opposed to use--questions they present. In these emerging contexts, institutional claims to copyright often work to the detriment of students, faculty, and the public. Also harmful are campus copyright policies that are ambiguously worded or inappropriately purport to vest ownership interests in colleges and universities.

Resolving these copyright concerns developing in higher education will require amending copyright law and corresponding campus copyright policies. This Article proposes three solutions, each of which would better align applicable laws with our moral expectations for higher education: (1) creating a legal presumption that students own all of the works that they create while students, (2) creating a legal presumption that faculty own nearly all of the works that they create as faculty, and (3) creating two legal prohibitions: one that prevents campus libraries from accepting gifts in which the donor claims copyright or seeks to impose analogous access and use restrictions, and another that prevents institutions from claiming copyright in the donated materials or any derivative works created with them.

Together, these proposals help further a vision of higher education as a cultural and knowledge commons--a sector that exists in the public sphere to advance social welfare and responsible economic development to the greatest extent possible.

TABLE OF CONTENTS

ABSTRACT                                                        769
TABLE OF CONTENTS                                               770
I. INTRODUCTION                                                 771
II. COPYRIGHT AND CREATIVITY ON THE MODERN CAMPUS: TRENDS AND
    CONCERNS                                                    773
    A. Student Entrepreneurship                                 775
    B. Faculty, Staff, and Student Involvement in the Digital
    Humanities                                                  786
    C. Digitization Efforts and Trends in Library Special
    Collections                                                 792
III. TOWARD REALIZING HIGHER EDUCATION'S POTENTIAL AS A ROBUST
    CULTURAL AND KNOWLEDGE COMMONS                              798
    A. Students Should Presumptively Own All of the
    Works That They
    Create as Students                                          802
    B. Faculty Should Presumptively Own Nearly All of
    the Works That
    They Create as Faculty                                      805
    C. The Public Should Enjoy Unfettered Use of
    Special Collections
    Material, Free from Copyright Claims Made by Donors or
    Institutions                                                807
  IV. CONCLUSION                                                809

I. INTRODUCTION

Copyright is one of the most dynamic areas of the law, yet scholarly understanding of its role in higher education is not keeping pace with the times. This Article argues that fresh focus should be turned to copyright ownership on campus, to widen space for the flourishing of a cultural and knowledge commons in higher education.

Law professors Brett Frischmann, Michael Madison, and Katherine Strandburg conceptualize knowledge commons as "shorthand for the institutionalized community governance of the sharing and, in some cases, creation, of information, science, knowledge, data, and other types of intellectual and cultural resources. …

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