Penn State’s IP Protection Racket, 10: Copyright

The new Penn State IP policy preserves the start of the 1991 policy paragraph that takes up copyright, but adds additional garbleness. No longer are authors “urged” to use university management services. Instead:

University-directed works are those created at the specific direction of a University unit for the University’s ownership and use.  Instructional Intellectual Property will be deemed a University-directed work if it is created pursuant to a written agreement between the faculty member or staff member and the University unit or if the work is considered University-directed by the standing policy of the unit.

This sounds nice, but it isn’t nice at all. The “University-directed” part is entirely usual in university copyright policies. Authors own what they do unless they enter into an agreement–voluntarily–that provides otherwise. That makes sense, especially in light of policies on academic freedom. But the second part means that any university “unit” can simply declare some works “directed” and thus comes to own those works by declaration. The policy here gives administrators the authority to expand the definition of “Instructional Intellectual Property” however they wish. Nasty.

For all that, Instructional Intellectual Property is given a clueless definition. Here, look:

Instructional intellectual property

is the term used to describe materials produced for instruction in any format, including (but not restricted to) print materials, video recordings, audio recordings, and digital materials.

I had to deal with this sort of clueless drafting for years in university settings. “Produced for instruction” states an intention. Materials might be produced for other reasons and repurposed for instruction. Instruction might be formal instruction for credit–but instruction could also be most anything else that informs, trains, and the like. The terminology gets in the way, too. The definition should be “Instructional materials”–still with the problem that the definition depends on intended use rather than on the circumstances of development. The intellectual property that may attach to instructional materials–patent, copyright, trademark–is what needs to be addressed. But all the policy can do here is fuss about when work “is considered” “University-directed.”

More nonsense, with regard to works that aren’t “University-directed”:

The University is granted the non-exclusive, royalty-free right and license to use any instructional intellectual property created while the creator was a member of the University community, if that work could be reasonably construed to be related to the scope of the University employment.

As if the university can, by policy, grant itself an interest in work that it doesn’t own. Further, the right to “use” is not a right under copyright. There’s no guidance in copyright law with regard to “use” as an exclusive right of a copyright owner to grant. In copyright law, “use” shows up as a limitation on the exclusive rights of a copyright owner–as in “fair use.” The remainder is bizarre. What are creators as distinct from authors? When is someone a “member” of the “University community”? Who is it who “could” “reasonably construe” a work to be “related” to a “scope of University employment”? This is bureaucratic wish-lust to gain a broad license to personal IP. There’s nothing here about “potential commercial value” and nothing here about requirements of extramural sponsors. It’s just a grab based on hopelessly vague conditions–membership in a university “community” rather than “employed”; a needed construal of a relationship rather than that the work was made within the scope of employment (in which case, there is no need for the university to grant itself a license–it would be the author under copyright law and the burden of policy would be to grant rights to the individuals who prepared the work, if that’s what university administrators choose to do).

As for “University-directed” work:

In cases of University-directed works, the creators of instructional intellectual property will be granted a non-exclusive, royalty-free right to use the materials for their own limited purposes outside of the University.  Rights of members of the University community to create and use scholarly and instructional intellectual property are subject to University policies on consulting activity and other activities external to the University, as well as to any unique contractual obligations related to the production of scholarly or instructional materials.

Since “University-directed” IIP works are subject to a written agreement, one would think that the written agreement, also, would set up how rights are managed–not just rights in produced work but also licenses and permissions for work used in preparing the new work. While the university grants itself a broad license to use works that it has not “directed,” the policy specifies that “creators” of university-directed works “will be granted” a license for “their own limited purposes” (whatever that means). It’s not clear at all why in any work for hire situation the university should be granting licenses to the creators of the work as a matter of policy, but there it is–and not much of a license, either.

The reference to consulting policies adds another layer of complication that isn’t necessary, but let’s leave that for another time. The policy then worries publication contracts–presumably because the university has granted itself a non-exclusive license in all works by members of the university community, and thus an administrator somewhere grinds that personal publication contracts might not carve out the university’s claimed license. It’s interesting that the policy here appears to grant administrators the right to waive the policy at their discretion:

. . . should obtain an explicit written exemption from the cognizant University administrator if the publishing contract might conflict . . .

This sort of exception is a typical strategy in badly drafted university IP policies–claim everything and then let administrators waive the claim when they feel like it. The effect is an assertion of total control (which may lack legal standing) and then administrators can permit whatever they feel like permitting. One might recognize this as a basic method of a police state, where everyone is guilty but for the grace of those in charge. One wonders why Penn State tolerates such a thing in the little hell-hole called IP01. Maybe police state tactics are not considered a problem there. Dunno.

The next paragraph, also new from the 1991 policy, contains a strange “assistance” requirement regarding instructional materials. “University personnel” are “expected” to “share” IIP. But why is this statement necessary if the university has already, by policy, granted itself a license in everything that university personnel create? The deeper–and nasty–problem is that the policy here essentially forces authors to license others to appropriate their work, change it, and there we are. What’s lost is the curatorial role of the author of teaching materials. If the university wants general access to such materials, and to play the role of institutional curator, then it should direct the production of the materials.

 

If one wanted to map a meaningful IP policy using categories, one might start with (i) work inappropriate to the university–exclude such stuff and its IP management from university activities;  (ii) IP in work appropriate to university activity; (iii) work specially commissioned by the university for its benefit; (iv) work commissioned by extramural sponsors. It doesn’t matter whether the work is putatively for research, instruction, or scholarship as far as IP is concerned. What matters is the nature of any contract under which the work is performed. If there’s no special arrangement in place, then IP in work appropriate to the university should vest where federal copyright and patent law vests it. One might then focus policy on what authority university officials have to create special arrangements, imposing IP requirements on others working at the university. If the basis for imposing university claims of ownership in IP is merely so that some administrators can attempt to make money from monopoly positions, then we consider just booting the those administrators off campus, simplify the IP policy, and restore freedom of inquiry and publication to the university environment.

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