demosthanes

Copyrighting Academic Freedom

by Dylan Stevens

A research project completed for English 650, 20th Century Rhetoric

    As the creator of this piece of original scholarly research, it is mine and I am free to do as I please with it. I can revise or edit it as I please, reproduce it and distribute it as I see fit. I can try and charge royalties if people want to cite it in future research. I am free to say what I will in the paper, howsoever I see fit. These rights are not granted to me from some abstract or ideal notion, but are an aspect of US and international copyright law. Copyright law, as established in the US Constitution, and clarified in various acts of congress establishes these rights for me, as this is an original work of mine. These rights, in regards to this paper will be mine until fifty years after my death, so I can pass them on to my family, who would then have all the rights as though they were me. At least, I think I have all these rights.
    The fact of the matter is, as I’ve delved into the legal matter surrounding my works, things have gotten more complicated. Within certain limitations, I am free to say what I will in this paper. This is my right as a result of the freedom of speech granted to me in the 1st Amendment to the US Constitution. Of course, freedom of speech only covers what I am allowed to say. All other rights are a part of copyright law, and this is where things get complicated. Abstractly speaking, I am the creator of this work, so it is mine under copyright law. However, I am not just an independent citizen of this country, I am also a graduate student of CSU Northridge, and I’m writing this paper as part of my original research as a graduate student, in the context of a seminar. Why should this complicate things, because copyright law establishes the legal notion of a work for hire.
    A work for hire, according to copyright law, is “a work prepared by an employee within the scope of his or her employment” (qtd. in Packard 278). This shouldn’t matter for me, I’m an employee of the University Student Union Inc., and I’m employed for the purpose of managing budgets, not creating original research. On the other hand, as I said, I’m also a graduate student. As a graduate student, I am might considered to be an employee of the California State University Northridge (CSUN). Furthermore, as a graduate student, part of my expected duties as a graduate student is to conduct research and create original works that report my research, within my field of study. If I were a graduate student in Physics, this work would probably not be considered to part of the field I am expected to create research in. Since I’m a graduate student in communication studies, however, and this is a work that relates to what people in a university or college environment are permitted to say, in all likelihood does fall within the expected purview of my field of study. If this were to be a work for hire, then CSUN would legally be considered to be the creator of the work.
“In the case of a work for hire, the employer or other persons for whom the work was prepared is considered the author for purposes of this title, and unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all the rights comprise in the copyright.” (qtd. in Packard 278)
Does this mean this paper is considered to be a work for hire? Despite my best effort to find out, I don’t know. Copyright law is blissfully vague on the matter of what constitutes an employee. While for purposes of calculating unemployment, I’m considered to be employed as a graduate student, whether I am en employee under copyright law is less certain. I don’t receive money or other monetary rewards by the university for being a graduate student, in fact I pay the university for the right to be a graduate student, though this payment is supplemented by financial aid from the university. Does this financial aid mean I am receiving some sort of financial support or reward, again, I don’t know. On the other hand, it may not matter at all. I can be considered an employee without being paid, particularly since I do receive a reward from the university (or at least I will in time) in the form of a Master of Arts degree. Furthermore, I entered into a contractual relationship with the university when I accepted enrollment. According to this, I’m bound by the university catalog and all other university policies. As such, I am bound by the California State University, Northridge Policy Statement on Inventions and Patents. According to this policy statement:
“Ownership rights to discoveries and inventions rest entirely with the inventors, except when the University supplies supplemental support which may lead to proportional rights in the discovery or invention. In the event that University support in the form of financial assistance, the use of physical facilities, or other factors establishing University support is provided, the University may exercise an interest in any patent or product derived from such activity.”
I won’t contest that I’ve received support from CSUN that has contributed to the creation of this paper. I’ve relied upon CSUN computers, as well as the CSUN library in order to conduct the research. On the other hand, this paper, according to the same CSUN policy statement is not an invention, defined as:
“(1) any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof or (2) any patentable plant, for which the United States patent rights may be obtained.”
Since this isn’t an invention, the CSUN Policy Statement on Inventions and Patents doesn’t really apply. This is, after all, a question of copyright law and not patent law. I can copyright a work, which this is, but I can’t patent this, and it is not an invention or discovery. Unfortunately, CSUN hasn’t given me a copyright policy to refer to, so I can only extrapolate the question of ownership based on other factors.
    If I were a faculty member, this might be easier to establish. In that case, I’d clearly be an employee, and this work would more clearly fall within the scope of my duties as an employee of the university, which would certainly include research in addition to teaching. Well, at least at first glance, if I were a faculty member this might be easier to assess. Yes, I’d clearly be an employee, but there’s also some level of legal precedent establishing a teacher exception to the work for hire provisions of copyright law. According to the 1909 copyright law, “courts and commentators regarded the work for hire doctrine as largely inapplicable to teachers.” (qtd. in Packard 282) Of course, the 1909 copyright law has since been superseded by the 1940 copyright law, which contains no such exception to the work for hire provision for teachers. But again, if I were a faculty member of CSUN, I would actually have a copyright policy statement to fall back on, which would establish this work as my own; according to the CSUN Policy Statement, signed by President Clearly in 1984:
“It shall be the policy of CSUN that rights to all intellectual creations of its faculty including books, works of art, computer programs and musical compositions and all other scholarly works remain the property of the respective faculty member.”
So as a faculty member, I’d probably be covered. But then, I’m not a faculty member, nor am I a Teaching Assistant as many of my colleagues are. I’m just a student, caught in a quandary in which I’m uncertain if my work is even mine.
    Ignoring the questions of ownership, there’s another problem that copyright poses in regards to my academic freedom. Throughout this paper, I’ve been, and will continue to quote from other copyrighted works. Now, I’m allowed to do this based on the establishment of fair use laws in US copyright law. Under fair use laws, I’m permitted to cite and quote other copyrighted works, so long as it is small portion of the work that I am quoting, and I am quoting for an academic or other scholarly purpose. But then, these laws don’t really protect me all that much. While its unlikely anyone would go after me for copyright infringement for what I’ve quoted, its possible. Or, they could charge me royalties, and forbid me from quoting if I refused or was unable to pay the royalties. The only thing that protects me here is the tradition of academic freedom that exists within the university. Under the tradition, I’m freely able to quote from existing works, provided that I cite the works in question, which I do. This tradition isn’t universal, however. Musicologists are “treated differently from academics who discuss novels and plays where there is an established convention that a proportion of the text can be subjected to scrutiny…” (Whiteley 221). If I were talking about music, particular popular music, I’d likely be forced to pay royalties for any quotes. I can’t afford to pay royalties for every quote and citation I use, so I wouldn’t be allowed to use the text that I quote. I’d be denied publication, and potentially sued for copyright infringement. If this were a paper on popular music instead of on copyright law, it would in all likelihood never see the light of day. Simple economics would prevent me from really pursuing this as a work in that case. My academic freedom would be curtailed by the forces of the capitalist economy.
    If I were to pursue this as a line of research anyway, I could hope that the university would support me, paying the royalties or supporting me in what could potentially be an expensive legal battle. After all, I’m a graduate student of the university, they have made an investment in me, and have an interest in protecting their investment. At least, that’s what I would hope. Once again, the bitter reality seems to be less rosy. The university is interested in financial support, of which I provide them very little. By comparison, universities now receive large amounts of funding from corporations, including but certainly not limited to record companies. If this were the case, the university would likely support their corporate donors and not me as the lowly graduate student.
    The university has not just closely tied itself to corporations financially in order to survive, but the universities, even those that remain non-profit have become corporations. As the president of the University of Florida said, “We have taken a great leap forward and said ‘Let’s pretend we’re a corporation.” (qtd. in Bousquet 1). The president of the University of Florida was wrong in some ways in what he said though, universities aren’t just acting like corporations, they are corporations now. The entire university system has become that of a corporation.
    This is reflected in university patent and copyright policies. Universities, just as CSUN has done, have made patent policies that attempt to establish reasons for the university having ownership or partial ownership over faculty work, treating faculty inventions as works for hire explicitly in the policies that faculty agree to in their employment contracts. Universities have started with patents instead of copyright issues for one clear reason, inventions are potentially worth a lot more money to the university. Scholarly publications, be they from faculty or students, generally don’t make much in the way of profit. They are oriented towards a limited audience, the faculty peer group, so will by necessity turn a marginal profit. They also require less outlay of resources on the part of the university to produce than inventions. Of course, there is one aspect of works that are commonly copyrighted rather than patented that does have the potential to make money, and is hence getting interest from universities in establishing copyright policies to assert that they are works for hire, vesting ownership in the university rather than the faculty or student creator. This is in the realm of computer software. While some computer software can be patented, if it is actually something completely new and original, software most commonly falls under copyright law. A study done of the process of drafting a new copyright and patent policy at Western Kentucky University reached similar conclusions. Though the administration declared otherwise, faculty at Western Kentucky University “came with the idea that the outcome would be to formalize another way for the University to increase its revenues at the expense of faculty” (Myers 10). Copyright and patent policies, even when they leave ownership in the hands of the faculty or student creator, often have clauses that require revenue sharing between the creator and the university. Universities, in this way, are behaving just as for profit corporations do, trying to ensure that they generate revenue from their products, though they are maintaining some nod to traditions of academic freedom for faculty. So, if my work were in some way to be profitable for CSUN, they’d be all the more likely to try and claim ownership over it. Luckily, this particular work is unlikely to make any money, as it is being distributed for free on a personal website of my creation.
    Copyright, whether it’s the situation of a work for hire, or the need for universities to enforce faculty and students paying royalties for works quoted in research, poses a threat to academic freedom for faculty and student alike. Going based on the American Association of University Professors statement, freedom of research is essential to academic freedom, “Teachers are entitled to full freedom in research and in the publication of the results” (AAUP: 1940 Statement of Principles on Academic Freedom and Tenure). Of course, the corporatization of the university, particularly evident in the often confusing copyright laws, puts the university in a position to actually be threatening the academic freedom that they have for so long demanded on an institutional level. Universities have demanded that the government not interfere in the academy, relying on the principle of academic freedom, but these same institutions are then creating policies that undermine and threaten academic freedom for the individual faculty or student.
“The real risk of the university’s mission comes not from an overzealous state seeking to curb students’ music downloading, but rather the creeping corporatism that threaten to commercialize academic freedom as just another entertainment medium.” (Martinez and Boggs 18)
So, for now, I was right in my initial statement, this paper belongs to me, and I hold the right to do with it as I see fit. Of course, I was incorrect in one thing though, these rights aren’t granted to me by copyright law, copyright law could potentially remove them from me at a moments notice. Instead, I hold these rights because this paper is not likely to make any money for me or for anyone else, and is just too small and unimportant to likely be subject to anyone’s attempt to use copyright law to take it away from me. I have academic freedom because I and my work aren’t important or financially valuable enough to make it worthwhile to remove it from me.

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