Academic journal article Washington Law Review

Copyrights in Faculty-Created Works: How Licensing Can Solve the Academic Work-for-Hire Dilemma

Academic journal article Washington Law Review

Copyrights in Faculty-Created Works: How Licensing Can Solve the Academic Work-for-Hire Dilemma

Article excerpt

Abstract: Many copyrightable works of university faculty members may be works-for-hire as defined under current U.S. copyright laws. Copyrights in works-for-hire are treated differently than copyrights in other works with respect to ownership, duration, termination rights, and requirements for transfer. Ambiguity over whether a specific faculty-created work is a work-for-hire creates legal uncertainties and potential future litigation about the initial ownership of the copyright, length of the copyright term, and termination rights which could impact all future transfers and licensing. Many universities have attempted to define ownership of faculty-created works through university policies. These policies are ineffective to alter the presumption of university ownership of works-for-hire, as they do not meet the requirements of U.S. copyright laws for a transfer of such ownership. This Comment argues that the best way to resolve these ambiguities is for the university to retain ownership of the copyrights in faculty-created works and provide the faculty creator with a license to the copyrighted work. Although perhaps counterintuitive, this Comment suggests that a licensing approach would actually result in greater certainty and better protection of the interests of both the faculty member and the university.

INTRODUCTION

University faculty members engage in a wide variety of activities, including teaching, research, and writing. Some of these activities result in the creation of copyrightable materials. As technology has become more fully integrated into the university environment, the variety of copyrightable faculty-created works has increased.1 In the United States, copyright protection is given to "original works of authorship fixed in any tangible medium of expression."2 In a university setting, original works of authorship might include software, websites, data compilations, technical manuals, textbooks, articles, visual artworks, fiction and non-fiction writings, musical works, video games, and on-line courses, which may themselves include a variety of copyrightable components such as text, video, sound, and pictures. There has been some debate over the past thirty years as to whether the copyrights in such materials belong to the faculty member who created them or to the university as an employer. 3 During this time period, it has become common practice for universities to take ownership of patents on faculty inventions, and in some cases these patents have benefitted the universities financially through licensing or other commercialization strategies.4 Some commenters of the past decade have speculated that universities may attempt to assert ownership over copyrights as well, particularly when the materials involved have significant potential commercial value, such as distance-learning curricula.5 Many universities have, in fact, adopted formal copyright policies that address ownership of faculty-created works.6 Despite the commenters' fears, however, most university policies surveyed express a desire for faculty members to own the copyrights to "traditional scholarly works."7

The question of how to accomplish that stated goal is more difficult than it might first appear. Some commenters believe that the copyrights in many faculty works, even traditional scholarly works, belong to the university as a work-for-hire.8 Whether a work was created as a work-for-hire has a dramatic impact on the treatment of the work under U.S. copyright law. The copyrights in a work-for-hire are presumed to belong to the employer rather than the creative employee.9 The duration of the copyright in a work-for-hire is different from other works,10 and a work-for-hire does not carry termination rights for licenses.11 A work-for-hire also has special requirements for transfer of copyrights, requiring an express writing signed by both the employer and the employee.12 A university copyright policy generally does not bear the signature of both parties and is therefore likely inadequate to alter or transfer ownership. …

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