RE: Re: "University as author?"

From: Elizabeth Townsend Gard <elizabeth[_at_]townsend.net>
Date: Wed, 10 Aug 2005 17:50:30 -0400

I wrote an article about the "teacher exception" that was published in 2003, if that is helpful to anyone.... You can find it at mipr.umn.edu/archive/v4n2/townsend.pdf.

Elizabeth Townsend
Non-Resident Fellow, Stanford Law School Center for Internet and Society  

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Terry Carroll Sent: Tuesday, August 09, 2005 3:21 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: "University as author?"

On Mon, 8 Aug 2005, David Bozak wrote:

> I thought the list might find this article interesting...
>
> University as Author?
>
> The Kansas Supreme Court will soon decide whether the Kansas Board of
> Regents has to negotiate its intellectual property policy in the
> future, or whether it can simply hand down a decree - even one that
> asserts ownership of all faculty work.
>
> from http://insidehighered.com/news/2005/08/08/kansas

This is interesting... Thanks for bringing it to the attention of the list.

My sense is that federal copyright law is completely controlling here, and if it's a work made by an employee within the scope of his employment, the employer is the author; and there are no exceptions in the statute for universities.

A little digging finds that the case is the mercifully short Kansas National Education Assoc. v. Kansas Board of Regents, 101 P.3d 740, 2004 WL 2848767 (Kan. Ct. App., Dec. 10, 2004):

    The copyright law clearly *allows* an employer in a "work for     hire" situation to negotiate with employees concerning the     rights to intellectual property, but the federal law does not     *require* an "author" to negotiate away the rights. Interpreting     the Kansas [employment] statute to *require* a Regents university     to negotiate away rights to copyrighted material would conflict with     the federal law provisions which state in a work-for-hire situation,     the employer is considered to be the author and owner of the material.

    Here, the [Kansas Public Employee Relations Board] was correct in     ruling that requiring mandatory negotiations concerning intellectual     property is preempted by federal copyright law.

The insidehighered.com site refers to a recent New York state case, going the other way. This appears to be Professional Staff Congress -- City University of New York v. New York State Public Employment Relations Board, 2005 N.Y. Slip Op. 04511, 2005 WL 1331182 (N.Y.A.D. June 7, 2005). That case never mentions any provision of copyright law at all, resting its decision entirely upon the New York Civil Service Law. It may be a longer case, but I think by completely ignoring federal law and the potential for preemption, it rather misses the boat.

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Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Thu Aug 11 2005 - 01:50:30 GMT