Copyright Issues in Colleges and Universities
Cate, Fred H., Gumport, Patricia J., Hauser, Rolland K., Richardson, James T., et al., Academe
The following informational report, prepared by the undersigned Subcommittee on Intellectual Property Rights of Committee A on Academic Freedom and Tenure, was approved by Committee A in February 1998.
Intellectual property issues in higher education are many, and they are often more complex than in other settings. Five factors largely make this so. First, colleges and universities are at once major suppliers and consumers of intellectual property. Faculty perform research, scholarship, and other creative work, and then consume research and other creative work in their teaching, service, and administrative tasks. Second, the intellectual property created within colleges and universities is often the product of multiple creators who share other important relationships (such as graduate student and supervisor). Third, both the creation and use of intellectual property within the academy are carried out by a diverse array of individuals-including faculty, administrators, librarians, staff, and students. Fourth, creative activity within colleges and universities is supported by a variety of sources, including direct government investment and private funds from endowments, alumni, foundations, and business. Fifth, and perhaps most important, the creation and use of intellectual property within colleges and universities are intrinsically related to the core activities of those institutions-teaching, research, scholarship, and service-and to the values essential to those activities. Academic freedom of faculty and the preservation and interpretation of our cultural heritage are among the most important of these values. Finally, the rapid and far-reaching proliferation of powerful information technologies complicates and intensifies intellectual property issues in education and elsewhere.
In light of these and other factors, Committee A on Academic Freedom and Tenure established a Subcommittee on Intellectual Property Rights and charged it with identifying the range of significant intellectual property issues facing faculty in colleges and universities. This report responds to that charge. It reflects not only the expertise of the members of the subcommittee, but also the experience of many colleges, universities, and professional educational organizations.
This report necessarily touches on matters that may be beyond Committee A's ordinary purview; future action relating to many of the issues identified below will likely require close consultation between Committee A and other Association committees, especially Committee R on Government Relations. Although the subcommittee's mandate includes intellectual property generally, the subcommittee has focused in this report primarily on copyright, because most intellectual property created and used within colleges and universities is subject to copyright law. Many of the issues identified below, particularly those concerning the ownership and commercialization of intellectual property, would, however, apply with equal force to discussions of patents and trademarks. The importance and impact of many of these matters vary among academic disciplines; as a result, this informational report is necessarily general in nature.
II. Copyright Law Summary
The Copyright Clause of the U.S. Constitution provides that "Congress shall have the power.... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."' The clause reflects the tension inherent in the federal protection of intellectual property. Creators, or in some cases their employers, are granted limited monopolies over their expression as an incentive to create and distribute. As the Supreme Court has repeatedly written, "[bly establishing a marketplace right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas. …