Intellectual Property

Intellectual Property (84)

This category covered all aspects of copyright and intellectual property including ownership and sale, and other aspects of intellectual property. The AAUP recommends that this topic be included in contracts and there were 84 instances of it found in this study. This is a permissible topic for bargaining.

Examples

Observations. Intellectual property is one of the AAUP’s key distance education issues and has been a central focus since the organization first started meeting on distance education issues in the mid 1990’s. In its Sample Intellectual Property and Contract Language (AAUP undated a), the AAUP recommends that several components be included in documentation about intellectual property, whether it be policy or contract. Components include a definition of intellectual property, who owns it and who can use it, distribution of funds and resolution of emerging issues and disputes (AAUP, undated a).

The AAUP further notes that faculty should own the copyright in all but three situations: when the institution expressly directs the creation of a specified work or it is part of a faculty member’s job; when the faculty member voluntarily transfers ownership; or when the institution has contributed to a joint work as specified by the Copyright Act (17 U.S.C. §101)(AAPU, undated). However, the AAUP view is not the only view on this issue. Lipinski (2003) notes that, in most situations, faculty work should fall under the “work for hire” doctrine of the Copyright Act (17 U.S.C. §101). That doctrine states that when a work is “made for hire”, the educational institution (the college) not the person (faculty member) owns the work (Lipinski, 2003). Simonson & Bauk (2003) describe the split in opinion as two opposing sides of the intellectual property equation. On one side is the emphasis on property (Lipinski, 2003) while the other side emphasizes the intellectual aspect (AAUP, undated).

There may, however, be a teaching exception to copyright law for higher education faculty (Lipinski, 2003). Under this exception, the faculty member would, as the AAUP suggests, own the copyright for work produced on the job. However, this exception is recognized only in the Seventh Circuit and it seems to go against the plain language of the Copyright Act. The disagreement in this area makes it even more important that parties include copyright issues as key part of contract negotiations.