Response to the Draft Rutgers Copyright Policy

Background

The current draft of the University Copyright Policy attempts to walk a line between the University's need to "preserve and protect academic values that foster open and free exchange of ideas and the traditional practices and privileges with respect to the dissemination of scholarly works" and the desire for the University to receive fair rewards on its financial and infrastructure investments.  (All quotes in this report are from the Policy unless stated otherwise.)

The policy states that it "reaffirms and retains faculty ownership of copyright" to "scholarly and artistic works they have created, such as books, monographs, journal articles, musical compositions, artwork, etc. in pursuit of their research."  It further states that faculty "also hold copyright to pedagogical materials, including materials in electronic format or posted to a website, that are developed in the normal course of their teaching duties, using resources ordinarily available to all or most faculty members."  "Substantial" use of University resources may impute copyright ownership of the work to the University, but the policy explicitly excludes such resources as salary, office space, libraries, and computing and networking facilities from consideration as substantial use of University resources.  The policy also recognizes that guidance is required to evolve as new individual cases arise, and it specifies the establishment of a Copyright Policy Advisory Committee to "advise the Vice President for Research, as appropriate, on interpretation and enforcement of this policy".  It also recognizes the need for establishing explicit written agreements on revenue sharing between the University and faculty creators in cases where the University chooses to commercialize a work.  These are all desirable properties for a copyright policy to have, and we are pleased to see them play an important part in the draft University Copyright Policy.

The New Brunswick Faculty Council is the primary body commenting on the impact of the draft policy on University faculty, and it is from this vantage point that the Library Committee has weighed in on this matter.  The Library Committee believes that, despite the great efforts that went into the formulation of this policy, serious concerns remain on issues of academic freedom.
 

Report

Our main concern is that despites its Preamble, the policy repeatedly asserts ownership rights to any material that appears to have commercial potential, even in cases where insignificant University resources have been used or where academic values may become compromised.  To fulfill its academic mission, the Copyright Policy should primarily protect the integrity of the scholarly works created by the members of the University community.  Restrictions that risk these protections in order to exploit commercial opportunities are ill-suited to an academic institution.

One important example of this is in the Policy's list of materials to which the University claims ownership.  This includes:

• "Works created as a result of external funding, in keeping with most grant and contract requirements, unless otherwise specified in the terms of the grants."  In other words, if scholarly works are the result of grant support, and funding agency policies do not otherwise prohibit it, the University can claim copyright ownership to the work.

• If the Policy's goals are to only take ownership of the copyright if the granting agency requires it, the above text does not make this clear.  In contrast, the Columbia University Copyright Policy reads "The University asserts copyright ownership in any work of authorship that is [...] created under the terms of a sponsored project where the terms of the sponsored project require that copyright be in the name of the University."  This is a clear statement of faculty ownership of copyright unless otherwise required.  The current Rutgers Policy should be equally clear on this matter.

• "Works created by non-employees, such as visiting researchers ... who use Rutgers facilities or resources, unless specifically agreed otherwise."  Clearly visitors who are at Rutgers for an extended period and use University resources in sufficient quantity in the development of scholarly work should hold some debt to the University.  However, what if the visitor is simply using a spare desk in a research lab for a few hours to edit a paper representing joint work not principally performed at Rutgers?  As the current policy now reads, it appears that the University can claim copyright ownership to the work.

• Many of the disciplines practiced in this University are highly collaborative in nature, with scholarly works often coauthored by colleagues from different institutions.  Since these works are often created during visits to each others' respective institutions, it is a common occurrence that a Rutgers visitor is involved in co-creation of a scholarly work, in part while visiting Rutgers, but without the use of any significant University resources.  It is important that the status of visitors be clarified further to exclude circumstances where the University asserts copyright ownership rights to materials in which insignificant University resources have been used by visitors and the University would not otherwise claim ownership to the work..

• As a contrasting example, Stanford University's Policy states "Under the Copyright Act, works of non-employees such as consultants, independent contractors, etc. generally are owned by the creator and not by the University, unless there is a written agreement to the contrary."  The default at Stanford is that ownership rights to works of non-employees (such as visitors) are not generally asserted.  This differs significantly from the current Policy's position on visitors.
• Similarly, MIT's Intellectual Property Policy (which includes copyrights) clearly states: "ownership of Intellectual Property developed by any faculty, students, staff, and others participating in MIT programs, including visitors, with the significant use of funds or facilities administered by MIT will vest with MIT."  MIT claims ownership of Intellectual Property of visitors only when there is significant use of MIT resources.

Another example concerns the relationship of copyright to patentable material and other intellectual property matters.

• The current Copyright Policy draft asserts University ownership of "Copyrightable works that also qualify for protection under patent laws and inventions or discoveries or that arise from matters that are also covered by the University's patent policy."  If I generate results that the University believes qualifies for patent protection, does the University own the copyright on any papers arising from the work? What if the results do qualify for patent protection?  Does the faculty inventor have any right to choose not to pursue a patent but instead to invoke academic freedom and simply disseminate it in an unrestricted form?  Who decides whether a work qualifies for patent protection?

• In contrast, the policy of the University of Texas states in its answer to "When does an employee own intellectual property?": "If the intellectual property is embodied in a professional-, faculty-, researcher-, or student-authored scholarly, educational, artistic, musical, literary or architectural work in the author's field of expertise (from here on, a 'scholarly work'), even though such a work may be within the scope of employment and even if System resources were used - Unless it is a scholarly work (i) created by someone who was specifically hired or required to create it or (ii) commissioned by the System or a component institution of System, in either of which cases, Board, and not the creator, will own the intellectual property."  This policy clearly favors ownership rights for employees to their creations, supporting the academic freedom that all Universities strive to maintain.

• The Policy furthermore states, "In cases where the University commercializes a work, any revenue sharing with the faculty creator shall be determined by a negotiated written agreement."  We believe this statement leaves room for possible abuse.  If the University owns the copyright, the University has all the cards in any negotiations about revenue sharing.  To protect against this in the case of inventions the patent policy includes default terms for revenue  sharing between the creator and the University.  It seems sensible to follow the same path here.  For example, the Cornell University Policy reads: "royalty income received by the University through the sale, licensing, leasing or use of copyrightable material, which the University owns pursuant to any section of this policy shall be distributed in accordance with the royalty distribution provisions [...] of the University's Patent Policy."

The Policy is particularly troubling when it concerns software.

• The policy states "Software relating to commercially useful research or development is governed by the patent policy."  This single sentence appears to place software under patent policy, even if it involves nothing patentable.  Even if "commercially useful research or development" were clearly defined, the question about how to legally protect software innovations has not been successfully resolved by our legal system, and the propriety of treating software as patentable intellectually property is not clear.

• However, we can gain some insight from how software is handled by copyright policies at other institutions.  For example, Columbia University's Policy reads, "In accordance with the University's Patent Policy, the University claims rights in inventions or discoveries, including computer software 'that are or may be patentable as well as to the technology associated with them.'  If the software is not covered by the Patent Policy, the University will not claim copyright ownership unless there is an independent basis for asserting such rights."  Software without protectable intellectual property is excluded from the Columbia Copyright Policy.  Stanford's Policy is also clear: "The University claims no ownership of [...] unpatentable software [...] which are not institutional works and did not make significant use of University resources or the services of University non-faculty employees working within the scope of their employment." This seems to make patent policy apply much more narrowly to software than the current Rutgers policy draft seems to be asserting.

• We further note that the policy has a potential ambiguity in the policy on the matter of software.  Whereas the Policy attempts to place software in the realm of the University's patent rules, the Policy also states that "Faculty also hold the copyright to pedagogical materials".  It is unclear what rules apply if the pedagogical material takes the form of software.

Finally, the University lays claim to materials created with "Substantial Use of University Resources".  This makes the question of how "substantial use" is defined vitally important.  However, the University's Policy currently includes: "research funding", "release time", and most importantly "university laboratories".  The matter of research funding is closely related to the issue of grant-supported research discussed above.  As it stands now, the University can assert ownership to any product of research funding.  "Release time" and the use of "university laboratories" are similarly ill-defined, and can be construed much more broadly than is warranted.  The University deserves rights to material it directly creates, but those that are the natural outgrowth of our academic pursuits should be carefully protected.  If the University believes it deserves rights to materials that were created through the University's own directed funding, they are most reasonably handled by including them in the Policy's statements concerning "Works created at the University's direction".

The pattern in these examples is that the Policy's focus appears to be on guaranteeing the University's potential financial rewards from the creations of the University community.  In cases where academic freedom conflicts with possible monetary rewards, the University should protect its commitment to academic values.

We conclude by noting that the above examples are illustrative of the problems that the Policy currently exhibits, but by no means should they be construed as exhaustive.  Indeed, insofar as these matters have a significant legal dimension, it is important that the Policy be reviewed by a legal expert familiar with the implications of University policies on academic values.
 

Resolution

Be it resolved that the New Brunswick Faculty Council endorses the above report of the Library Committee, and encourages the University's Copyright Policy Committee to address the concerns raised in this report.  Further, the Council recommends that:

• The Copyright Policy not be adopted until it has been reviewed by one or more legal experts familiar with the implications of  University policies on academic values and on protecting the rights of members of the University community to their scholarly creations.

• The draft Copyright Policy be modified to restrict University rights to copyright ownership in cases of grant-funded work only to work resulting from significant use of University resources, unless required otherwise by the grant or contract.

• The draft Copyright Policy be modified to restrict University rights to copyright ownership of work by non-employee visitors only to work resulting from significant use of University resources.  The Policy should uphold the principle that visitors should be shielded by the same consideration of academic freedom given to local coworkers and hosts.

• The draft Copyright Policy be modified to permit faculty creators of work qualifying for patent protection to pursue non-commercial paths to disseminating their work and to maintain ownership to the copyright on the resulting work so long as its dissemination remains non-commercial.

• The draft Copyright Policy be modified to extend the patent policy to software only in cases where patentable material is involved in the creation of the software, and insofar as programs are the expression of the intellectual property (the underlying algorithms) as opposed to the property itself, copyright of any programs should be held by the software creator regardless of the status of its underlying algorithms under the patent policy.

• The draft policy be modified so that ownership of software created as pedagogical material be owned by the software's creators.

• The draft policy be modified to include a default policy on sharing of revenue between the faculty creator and the University in materials where the University commercializes a work, akin to how this is implemented for patents and inventions.

• The draft policy be modified to clarify the definition of "Substantial Use of University Resources" so that it not include University resources that are commonly part of how faculty conduct their research.  This would include the elimination of research funding, release time, and university laboratories.  Appropriate ownership conditions in such cases can instead be specified as part of the policy on "Works created at the University's direction", where the Policy can more clearly circumscribe the cases where University support warrants copyright ownership.

• The Copyright Policy should affirm the importance of the faculty member's academic freedom to promulgate unpopular and controversial information.