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Intellectual Property: Who Owns it?
Intellectual Property is the intangible value developed by human creativity that is protected by the legal mechanisms of patents, trademarks, copyrights, service marks, trade secrets, mask works and plant variety protection certificates.
Intellectual property includes : inventions, discoveries, know-how, show-how, processes, unique materials or works, original data and other creative works that have value.
Intellectual property also includes the physical embodiment or representations of intellectual efforts, such as models, machines, designs, computer programs, compositions, chemicals, plants and records of research.
Copyright is the intangible property right granted by law for an original work fixed in a tangible form of expression. Rights are typically granted to the creator/author, and include the right to:
- reproduce the work
- create derivative works
- distribute the work to the public by sale or other transfer of ownership (lease, rent, license)
- publicly perform or display the work
Who owns the Copyright?
U.S. Copyright Act Section 201, Title 17 US Code states that:
- COPYRIGHT ownership in a work protected under this title vests initially in the author or authors of the work.
- In the case of collaborative works, the authors of a joint work are co-owners of the copyright.
- In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author and owns all of the rights comprised in the copyright, unless the parties have expressly agreed otherwise in a signed, written instrument.
Work Made for Hire
The US Copyright Act defines work made for hire as:
- a work prepared by an employee that is within the scope of his or her employment
- a work specifically ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a sound recording, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test or as an atlas
- If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
In the academic environment, who are the stakeholders?
Who has a legitimate interest in intellectual property?
- Individual faculty author(s):
Faculty members are employees of an institution and author/creators of various products that are considered intellectual property. Faculty write curricula, lesson plans, course outlines, handouts, workbooks, tests, lectures, multimedia presentations, articles, chapters, full textbooks and other valuable materials. They also are or have the potential to be engaged in independent and sponsored research, collaborative works, work produced under grant funding and works that can be commercially valuable. Due to the range of activities, a typical faculty member can have ownership interest in any number of copyrightable works. - Joint owners:
Faculty frequently engage in collaborative work: co-authoring an article, team-teaching a course, contributing chapters to a text, co-presenting at a conference. - The institution or governing
board:
The university or college and their respective governing boards also have an interest in the products created by their faculty employees. In some cases the works may be accurately defined as works of hire or assigned projects that are within the scope of the employment contract. Other activities may involve grants of release time, assigned time or monetary stipends paid to support a specific work. Other products may be the result of projects that required a significant investment of institutional resources, beyond what is considered customary support. - Publisher:
In situations where a faculty member enters into an contractual agreement for publishing a work, the agreement often includes provisions for the sale of rights to the work: copying, distribution, public display, etc. - Funding Sources:
Foundations, state agencies, businesses and other external parties who contract the university or individual faculty members to develop materials, provide coursework or participate in research and development work, have an interest in the intellectual property resulting from those projects (work for hire and significant resources). - Transferee:
In some cases, faculty intellectual property rights are legally conveyed to another person, as a gift or as a bequest to the heirs of an estate.
So, Who Owns the Works Created by Faculty?
It depends on several factors:
- The nature of the work:
Most institutions take a fairly liberal approach regarding articles, texts, lesson plans, lecture notes and media products. Formulas, software, products, designs and processes have greater commercial value and are more tightly scrutinized. - The amount of support provided:
Recently, ownership of online courses, multimedia productions, Web sites, games and simulations have come into question, due to the need for resources and support above and beyond the standard and customary faculty support. Such support may include stipends; release time; extraordinary computer resources; laboratory space and equipment; professional assistance from programmers, instructional designers, media production and technology support, graduate assistants, etc. One of the key factors is how the institution defines standard and customary support. - Existing policies or contracted
agreements:
Policies created by the institutions or their governing bodies may define types of work or situations where the institution will relinquish its interest, establish formulas for sharing the work and income it generates or set the definitions of standard and customary support. Contractual agreements for a specific product or project should clearly define the disposition of IP rights.
Checklist to determine who owns the copyright:
- Is the author an employee?
- Was the work created within the scope of employment?
- Was the work specifically ordered or commissioned? If so, is there a signed written agreement to that effect?
- Has the institution provided significant resources and support beyond the standard and customary support provided to all faculty members?
- Is there a policy that defines copyright ownership? What are the provisions of the policy?
- Is there a procedure for a written instrument signed by the employer and/or faculty?
Faculty ownership vs. university ownership. What interests
are at stake?
- ability to control use and further dissemination of the work
- ability to provide/produce timely updates and revisions, or to withdraw the work from further use
- ability to create derivative works
- disposition of any royalties or income generated from further use and dissemination of the work
Administration's interests:
- avoiding competition for enrollments by maintaining control of unique programs and resources
- recoup the institution's investment of support and resources
- ensure access to and continued use of the material
- potentially generate revenues from broader distribution
Faculty Interests:
- academic freedom: the right to revise and correct the work, or withdraw the work as they deem appropriate
- right to use the work in other situations or circumstances and create derivative works
- right to control subsequent use by the institution or by other faculty
- incentive to create new works
- ability to maintain the work as part of their professional portfolio, and use the work at other institutions
Other Policy Questions to Consider
- Does the intellectual property issue pose a conflict of interest and commitment for the faculty member?
- What impact does IP policy have on consulting and entrepreneurial activities?
- How does the use of university name and identity impact the IP question?
- Is the use of university resources benefiting the university, the individual or both?
- What are the implications of using student works, or the results of student efforts?
Towson University IP Policy
The Towson University Policy on Intellectual Property (PDF) was approved by the President in April 2002 and became effective July 1, 2002. The policy addresses:
- the intellectual property rights of the university and the responsibility for managing intellectual property
- the rights and obligations of faculty, students and staff working under the aegis of Towson University or using the resources and facilities of the university
- three broad categories of works: copyrightable works, patents and computer software, and technology-mediated instructional materials
- guidelines for determining ownership, rights of use and terms for sharing revenue generated by sales or licensing of IP
The new policy brings Towson policies in line with the framework adopted by the University System of Maryland and our sister campuses.
