A case in the Kansas Supreme Court reflects a lack of clarity in US copyright law.
A decade ago, US universities, infected with the internet mania of the early nineties, convinced themselves that there was a large amount of money to be made in distance education. The online course materials were not subject to patents, which the university typically owns, but to copyright, which traditionally rests with its academics. So a number of schools made attempts to wrest copyright away from the researchers under the doctrine of ‘work for hire’.
Tradition hands copyright to academics in most cases, but the law is unclear. The time has come to tidy it up.
Under work-for-hire, if you create something for your employer, copyright belongs to the employer. Academics have not traditionally been included in this category because although everyone agrees that they must publish or perish, and that teaching courses is part of the job, the head of a department does not typically request a specific paper or lecture on a specific subject. “Have a 20-page review of isopod parasites on my desk by Monday” is not the order of the day.
Besides, if the university owns the scholarly output of its faculty, it is also responsible for that output, and might be tempted to shape it, for example when threats of litigation or bad PR loom.
Almost all universities who tried to claim copyright have backed off. In those cases where work-for-hire seems to be particularly applicable — when a faculty member is asked to produce a specific document, for instance — an agreement is often signed waiving the university's right to the copyright.
But an exception in Kansas (see Kansas to rule on copyright for lecture notes) has highlighted the uncertainties over ownership of intellectual property in current US law. If the Kansas Supreme Court rules that work-for-hire should apply to academics, this will muddy the waters more. If it does not, it will hardly clarify matters. Tradition hands copyright to academics in most cases, but the law is unclear. The time has come to tidy it up.
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Who owns your work?. Nature 436, 1066 (2005). https://doi.org/10.1038/4361066b