Re: faculty coursework online

On Tue, 29 Feb 2000, Steven D. Jamar <sjamar[_at_]law.howard.edu> wrote:
>
> One would think the copyright for all work created by professors would
> under the copyright act belong to the university or college by whom
> they are employed.

Robert A. Baron points out (in a snipped excerpt below) a consequence for course lectures if this view were to prevail. If the university has copyright in my written lecture notes for a course I have not previously taught elsewhere, then decides not to renew my contract (assuming no tenure), I need to find some basis for permission to use those notes to teach the course in my next job. Mr. Baron looks to fair use. Another possibility would be some sort of implied or compulsory license.

I wonder if an established doctrine from state contract law, relating to non-competition covenants, could be helpful here. Ignore for the moment the supremacy issue and consider the policy. In overbroad summary, most state courts will refuse to enforce a covenant not to compete if it is too extensive in time, geography or area of work. In many cases, training by the employer, especially training of a proprietary or trade secret nature, will justify broader restriction on the employee's post-employment work for others. While in general you can't use the trade secret, the former employer also cannot prevent you from earning a living.

If copyright law were to be applied to prevent me from teaching a course at my new employer that I had developed at my former university, it seems to butt heads with the policies in the non-compete covenants area. It could be argued that I just have to re-create the course in a different format, but that seems disingenuous. As Mr. Baron suggests, or at least implies, my new university would have to have its copyright lawyers vett my new notes in comparison with what I used at my old university before I could teach the course, to be certain there is no infringement, or, if I don't complete the new notes in advance, go over them with me week by week. This seems so cumbersome, and to hamstring me and my new employer so much, as to be tantamount to restricting my ability to earn a living. Copyright as non-competition agreement.

Much of the discussion on this list of this situation has focussed on academic tradition and fair use. Seems to me this would be an alternate, and possibly fruitful approach. Has anyone seen any work elsewhere in this vein?

I am not at all certain what implications this suggestion has in the area of computer programs, or patents. Perhaps none.

But when it comes to distance ed materials, the situation may be a little different, because that's teaching, and perhaps Gerald Barnett's suggestion of the distinction and solution is most apt. If my university wants me to prepare a set of distance ed materials that they can use, perhaps they should commission me to do so, above and beyond my regular faculty salary, and maybe also pay me royalties in the future. If they want to own it and use it exclusively, why isn't it like the company that bought the artist's painting, but then had to buy a separate license to use it in its advertising? I know, I know, that was simply not a work for hire situation, but, viewed broadly, isn't there a similarity? Morally, isn't that what the university should do? Doesn't the opportunity to create distance ed materials add a new dimension to what has been the traditional job responsibilities of a professor? Shouldn't the result be that this is such a new area that it does NOT constitute part of the regular responsibilities of the faculty, so it is not a work for hire? And that any one-sided contract of adhesion saying otherwise is void? (That may be an obstacle more difficult to overcome than my just suggesting it, but then implying a license to use my own course notes also involves some sort of obstacle.) It seems as though this is, in effect, the treatment that custom has assigned to ownership of the copyright in academic writings, or the ability of law professors to consult of counsel.

Why this argument doesn't apply to patents, or computer programs, I don't know, except that the universities presumably saw an opportunity and took it, defined those as part of the faculty job responsibilities, and the faculties were so diffuse and had so little bargaining power they couldn't resist (see my added comment below to Prof. Jamar's suggestion that this be bargained out). Or at least didn't succeed. And it is now so established that it can't be overturned. Clearly there is a risk that distance ed materials could follow this course.

Perhaps a good analogue would be whatever the arrangements are for those who write loose-leaf treatises that are continually updated, or texts with regular supplements. In the course of time, the original editors/authors retire and are replaced by new people. There must be some mechanism here for handling payments. Certainly the authors/editors continue to be credited long after their original contributions have been made. Who knows how this works? Mr. Henderson?

I am not an IP professional, and if I have ignored some clearly definitive doctrine that makes one or more of my suggestions look ridiculous, I apologize to those of you who are for having taken up so much bandwidth. But occasionally it can be helpful to look at an issue from a perspective not limited to the confines of copyright law.

Prof. Jamar continues:
>
> Until recently copyrighted works meant little in royalties to anyone.
>
> Copyrighted works, being non-utilitarian, were mostly plays, and
> paintings and books and, most especially, written scholarship. Not
> much market there -- not much bucks at stake -- and to the extent
> it was, it was treated as extra incentive -- the extra money was
> incentive to create books.
>
> But then came copyrighting of utilitarian works -- especially computer
> programs. Where do they fall?
>
> And so it should be a matter of negotiation between faculty and the
> university.

I'm just curious, but do many university faculties have an organization that makes it easy to do this? Absent a union or some permanent faculty committee active in this area, it sounds as though this suggestion, which many have also made, may be somewhat unrealistic, as there is likely to be gross disproportion in bargaining ability, leading to a contract of adhesion. Take it or leave it. I have no experience in this area, so maybe some of the faculty on this list will be able to attest that this is a gross misperception, and in fact the norm is full and fair bargaining between equals.

Michael J. O'Connor
<mjoconor[_at_]erols.com> Received on Wed Mar 01 2000 - 14:45:43 GMT