University of Misery’s IP Policy Scam, 2

We are considering this statement by the University Missouri in its information for inventors:

MU owns all intellectual property created utilizing University facilities by an employee or student of the University of Missouri.

If we turn to the University of Missouri’s copyright policy, we can see that the statement is untrue there, too. The copyright policy is in the Collected Rules and Regulations at 100.030.

The faculty will continue to hold copyright for traditionally accepted intellectual property that is developed in their roles as teachers and scholars subject to the provisions of section 2 herein. These include, but are not limited to such materials as books, workbooks, study guides, monographs, articles, and other works including music and performances, whether embodied in print, electronic format, or in other media.

So far, nothing about using university facilities enters into it. If a faculty member creates a study guide using university “time,” the university makes no claim on it. But let’s look at section 2 of the copyright policy to see what the university does claim. We will work through it bit by bit:

2. The University will own the copyright in materials that are:

a. commissioned for its use by the University; or

That is, when the university assigns someone to the task (“commissioned”) of making a work for use by the university. Here, commissioning does not depend on providing any additional funding. It’s rather like assigning someone to an inquiry.  Makes sense.

b. created by employees if the production of the materials is a specific responsibility of the position for which the employee is hired; or

This is the basic work made for hire provision. Policy does not have to claim these works, because federal copyright law already does that–that is, if a work is prepared by an employee within the scope of employment, copyright law recognizes the employer as the author of the work, and thus the owner of the copyright in the work.

c. sponsored works, which are works resulting from internal grants (work created as a result of an agreement between the University and the creator(s) of the work) and external grants (work created as a result of an agreement between an external sponsor and the University).

Here we have the “use of university financing” provision we found in condition (2) of the patent policy. For the use of internal–university’s own–financing, the policy expects the university to enter into an agreement with the “creators” on the matter. Similarly, for externally sponsored work, there will also be an agreement. For research grants, the copyright policy walks back the general claim of section c.:

This provision does not apply to grants to perform research where the production of copyrightable materials is ancillary to the purpose of the grant.

That is, for sponsored works, the work must be a deliverable under the agreement.

Employees continue to own the copyright to scholarly and other publications that present the findings of research, subject to the provisions of subsection 2 herein; or

So, presenting findings of research is distinct from developing copyright deliverables in that research. Makes sense. If the university sponsors work, the work that the university claims is what it has specified as deliverables. Not everything that might be subject to copyright ownership.

d. created with the use of substantial University resources which are specifically provided to support the production of copyrightable materials.

In d. we see a parallel with the use of “in a substantial degree” in condition (2) of the patent policy. But there’s more: the resources must be “specifically provided” for the production of the copyright works. That is, there should be some indication, some documentary evidence that the university provided resources to support the production of the materials, and furthermore, that these resources are “substantial”–however “substantial” might be construed. It is clear, however, that the use of university resources alone does not create for the university a claim of ownership in copyright.

(1) If substantial University resources will be used in the development of educational materials, a written agreement between the author and University setting forth the terms of

(a) copyright ownership and
(b) division of net income from external sale, and
(c) use, revision and maintenance

shall precede the use of said resources.

If the university is going to provide resources, then there should be a written agreement on the matter, and the policy lays out what this agreement should address–including copyright ownership. There would be no need in policy to specify copyright ownership in any written agreement if the university claimed ownership of all materials created with university “facilities” or other resources. Here, however, it is clear that there ought to be a documentary record not only that the university intends to provide resources to support production of copyright work, but also that there is to be a written agreement that addresses copyright ownership, among other matters.

And a clarification on what is meant by “substantial” resources:

Limited secretarial support, uses of the library for which special charges are not normally made, and the staff member’s own time except as covered by subsections 2.a. and 2.b. herein shall not be considered substantial University resources.

So, if a staff member has not been commissioned (that is, specifically asked to prepare a work) and the work is not otherwise within the scope of employment (as a “specific responsibility” as distinct from a general responsibility), then the use of university “time” is not substantial. Similarly for “limited secretarial support” and certain “uses of the library.” Helpful, if not particularly extensive.

Finally, the policy addresses the situation in which there’s substantial university resources without a written agreement:

(2) In the unusual circumstance in which the said materials were developed with substantial University resources without an agreement the University may, in its discretion, claim copyright ownership and/or a share of royalties.

That is, both the “creator” of material and the university (that is, administrators representing the university) have a mandate to have a written agreement. If not, then the university can claim copyright of the materials, but does not have to.

These are the four conditions under which the university may claim ownership under its policy–commissioned, specific work responsibility, deliverables of sponsored work, or made with substantial university resources and not subject to a written agreement that provides otherwise.

Now consider again the university’s representation of its ownership position:

MU owns all intellectual property created utilizing University facilities by an employee or student of the University of Missouri.

As for copyright, this statement is simply false. It’s clear under the copyright policy that faculty own their “traditional” scholarly materials, regardless of the use of university facilities (unless the use is “substantial”–such as using library services for which there is normally a charge). And it is clear that for employees generally, if a work has been produced and that work was not commissioned, was not a specific responsibility of the position, was not a sponsored deliverable, and did not use substantial university resources, the university has no claim of ownership by policy. The university’s statement on its ownership of “intellectual property” is simply not true.

 

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