Intellectual Property and the AAUP
Smith, Mark F., Academe
Some approaches to intellectual property can conflict with academic freedom. The AAUP's Statement on Copyright address issues of control and ownership of academic work.
The American Association of University Professors was founded in 1915 but did not establish a policy on intellectual property until 1999, when it adopted its Statement on Copyright. Far from suggesting an absence of interest in the issue, the time it took to the questions surrounding intellectual property reflects instead the contradictions inherent in the role of faculty as both creators and users of intellectual property. Ideas are our stock in trade, and the expression of those ideas is at the heart of our identity as educators. We feel the need to retain control of our intellectual property rather than give it up to an employer. At the same home, our purpose in the classroom is to promote the free exchange of ideas and to encourage the widest possible sharing of knowledge.
Intellectual property encompasses copyrights, patents, trademarks, and trade secrets, but the AAUP's Statement on Copyright deals only with copyright. The Association took that approach for several reasons. Trademark protection is a major institutional concern, as any Wisconsin Badger, Princeton Tiger, or University of California, Santa Cruz, Banana Slug can tell you. Yet trademarks and trade secrets have much less applicability than copyrights to faculty pursuing academic endeavors. Similarly, patents are important in the scientific and engineering disciplines and, increasingly, in the field of computer software. For many years, however, institutions and faculty members have enjoyed an understanding regarding ownership of patents, which is often also covered by specific statutes. Some state laws, for example, require institutional ownership at public colleges and universities, while federal law-under the Bayh-Dole Act-covers the ownership of patents developed through federally funded research. The act, passed in 1980, provides that the ownership of such patents rests with the institution, but mandates that royalties are to be shared between the individual inventor and the institution.
Historically, control over copyrights has not been as firmly settled as the practices governing trademarks and patents, probably because the monetary rewards for academic work that is copyrightable have been perceived as so small. Many colleges and universities have long had policies asserting institutional ownership over the copyrights to faculty-- created works, but they seldom tried to enforce them until recently. With the advent of digital technology and the growth of distance education, however, the potential rewards seem more promising, and the costs and effort required to capture those rewards more reasonable. As a result, faculty and administrations initiated a sometimes contentious exchange in the 1990s over control of academic work.
Copyright law is grounded in the U.S. Constitution. Article I, Section 8, Clause 8, gives Congress the power to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" for the specific purpose of promoting "the Progress of Science and useful Arts." Under the Constitution, copyright law aims to promote useful knowledge, and the public benefit is paramount. The law allows creators to receive private benefits as an incentive, but their private gains must be balanced against those that go to the public. The public benefits not only from access to copies of works entering into the public domain for educational purposes, but also from new creators' deriving new works from older ones. A vibrant public domain is essential to the "progress of science and useful arts."
Prior to revolutions in the seventeenth and eighteenth centuries, both France and England used copyright-which served as a license required for printing-to enforce censorship. The poet John Milton wrote Areopagitica, a polemic for freedom of the press, as a speech for the "liberty of unlicenc'd printing. …