Legal framework
17 USC Section 201(a) vests ownership of copyright in a work with the author of the work. Section 201(b) provides that the employer or other person for whom a work-for-hire is prepared will be considered the author for copyright purposes. Works-for-hire are works created by employees within the scope of their employment, or by others pursuant to written contract if the work created falls into one of the nine categories set out in the definition of work-for-hire in Section 101.
University intellectual property policies
Universities have for the most part altered the statutory scheme either through tradition or through policies that permit faculty ownership of their scholarly writings and educational materials. It is unclear whether the law would compel the conclusion that faculty writings are works within the scope of employment, but resolving the issue seemed of little consequence until recently. As we will discuss in a moment, this policy has contributed to the escalating prices universities must now pay to buy back the scholarly works their own and federal taxpayer funds helped to create.
New challenges
The allocation of ownership interests in the end products of university research is just one policy consideration. Today there are more subtly nuanced variations on the once-straightforward theme of ownership of works created on our campuses:
More often than not, the university does not own copyright in the works its faculty and students need to read. In the print world, this means the library must buy books and subscribe to e-books and journals. It also means that universities may need to acquire additional rights as well.
To fully utilize print works, universities may need to:
Regarding our licensed electronic works, universities may have to:
But when is permission required and when does fair use apply? Unfortunately, this question does not have a simple answer. Learning to analyze a use to determine whether it's a fair use does require some effort. There are workable guidelines, but they tend to be more restrictive than sometimes necessary. Nevertheless, they may be preferable to no help at all.
Ultimately, universities must focus upon licensing for the many (perhaps hundreds of thousands of) uses that go beyond fair use. We must learn more about transaction based and subscription licenses, assess their strengths and weaknesses, and know when to exploit each type to most efficiently promote copyright compliance.
We also must provide support for staff who must negotiate license agreements for access to electronic works. If we acquire sufficient access upfront, we may not need additional permissions for the uses that we know we'll need to make of electronic works.
It's time to get serious
The entire publishing industry is in upheaval, trying to find its way into its own digital future. Along the way, they seem determined to be as aggressive as possible towards some of their most important customers, universities and their libraries. They are actively challenging what they consider to be unauthorized and illegal uses of their works in our course management systems (such as Canvas), our libraries' electronic reserves systems, and on faculty and departmental web servers. They've been encouraged by a success or two and are vigorously pressing what used to be an ambiguity about the law as though it were settled law -- the scope and extent of application of fair use to the delivery of educational course materials within academe. Will we be able to withstand an allegation of infringement?
Compliance strategies
Our first strategy for complying with copyright law must be educating our faculty, staff and students to be better consumers of copyrighted materials, more responsible in their use of others' works, and careful in their exercise of statutory exemptions.
But we also must make it easier for faculty, staff and students to get permission to make uses of others' works when statutory exemptions do not apply. We must establish quick, easy and reliable links with copyright clearance centers, negotiate subscription licenses where they would be advantageous and acquire access in digital materials that is sufficient to obviate the need for additional permissions to use such licensed electronic information.
So, our compliance strategies should include: