Yours, mine or ours? Intellectual property in a digital age

Kevin Smith, scholarly communications officer at Duke University, on intellectual property and the broken copyright
By: | Issue: August, 2014
July 15, 2014

“Copyright is broken,” said Kevin Smith, scholarly communications officer at Duke University, to open his UBTech featured session on intellectual property.

Smith, who is an attorney and a librarian, noted that in recent years technological innovation has put a severe strain on our copyright law, which dates from 1976. The law is supposedly technology-neutral, but despite additions such as digital rights management systems being added by Congress, it’s difficult to make what applied to the copy machine of 1976 work for the mobile device of 2014.

Digital creates a lot of new fears, including perfect copies, faster distribution, and the ability to reach the whole world in seconds. There are new opportunities with digital matters, too.

There are three big issues to consider.

1. Who owns digital work?

Digital work and “work made for hire” (WMFH) complicates this. If you look at the legal provisions of what makes something work made for hire, there are two provisions:

– created by regular employee within scope of job.

– if work made for hire, the employer owns it.

That seems clear, but what about for adjuncts? They are independent contractors, so it’s virtually impossible for something to be WMFH when created by an independent contractor. And, just paying for it doesn’t make it yours. “We think we own the stuff that adjuncts create – after all, they’re just adjuncts – but we probably don’t,” he said.

Most universities have policies stating that despite work made for hire provisions, faculty still own their own intellectual property. Yet…courts may not recognize these policies. The 2003 Foraste vs. Brown University ruling stated that Brown owns the work in spite of the policy they have. “That case ought to make our faculty very, very nervous,” Smith said. Still, he added, “sometimes ownership doesn’t matter as much to faculty as we think it does.” What do different parties want to DO with the work? If you accommodate interest, the conflict often evaporates.

As part of Duke’s intellectual property board, Smith said, most issues can be resolved. “In one case we determined the employee owned the material, but she was willing to let Duke use it as long as she could also. In another case, we determined Duke owned the material but we were able to let the faculty member do what he wanted to do with it.”

2. What about copyright and MOOCs?

There are both ownership and use questions.

A faculty member will say he wants to use something in a lecture as part of a MOOC. “We have to tell faculty, the exceptions in copyright law that let you do that in a classroom do not apply,” Smith said.

This is when they can discuss how central the content is to the pedagogical point being made. And is the amount just right? “If you need this and nothing else will do to make your specific point, and you’re using no longer than you need to make your specific point, it’s probably going to be ok to use,” he said.

These conversations are valuable because “analysis of fair use is also a discussion about good teaching,” he said. “When we let the faculty explain to us why we need it and what they hope to accomplish we have an opportunity to make a good decision about fair use and allow them to think about online pedagogy. Some things just don’t work online.”

With permission requests, keep in mind that some are simply ignored and others are simply a “no.” Smith has seen request replies that ask for a per-student fee ($43,000 for 80,000 students to access the material, anyone?). Or the owner will say yes to distributing the reading for up to 1,000 students only. “Or, one-time permission, which doesn’t do us much good because we want to offer the MOOCs over and over again,” he said.

One professor was putting together a MOOC and wanted to use five of his own articles. “We contacted his publisher, and they said no,” Smith recalled. “It was a real learning experience for the professor to know he couldn’t use his own work. BUT he could put in our repository, which makes them open access. Now when he sees an article he wants to use, he calls the author to ask if they will make an open access copy available for use.”

3. Has there been an expansion of fair use?

Trial judges have ruled in favor of fair use. “It’s a powerful reminder that the copyright law was written for what we do. It was written to facilitate teaching and learning,” he said. But institutions getting sued by authors and publishers seems to be a new thing.

“In the last 20 years, our courts have looked really strongly at the issue of transformative purpose,” he noted.

Questions to ask:

– Why do you need it?

– What will it accomplish for you?

– Do you need as much as you were going to use?

“A lot of the time we find we can replace things in MOOCs with licensed material,” he said. “If you can’t find the transformative purpose, replace with something we have permission for.”