The role of copyright on the modern college and university campus is overdue for fresh examination. Copyright ownership issues and related contests over rights risk impeding higher education's ability to serve as a cultural and knowledge commons, a specially constructed space where human and artifactual resources interact in ways that benefit society at large. At present, copyright concerns raised by trends involving student entrepreneurship, the digital humanities, and the digitization of special collections material housed in campus libraries threaten higher education's potential to benefit society to the fullest.
This Article reviews developments in these three areas of higher education through the lens of copyright, examining, in particular, the copyright ownership--as opposed to use--questions they present. In these emerging contexts, institutional claims to copyright often work to the detriment of students, faculty, and the public. Also harmful are campus copyright policies that are ambiguously worded or inappropriately purport to vest ownership interests in colleges and universities.
Resolving these copyright concerns developing in higher education will require amending copyright law and corresponding campus copyright policies. This Article proposes three solutions, each of which would better align applicable laws with our moral expectations for higher education: (1) creating a legal presumption that students own all of the works that they create while students, (2) creating a legal presumption that faculty own nearly all of the works that they create as faculty, and (3) creating two legal prohibitions: one that prevents campus libraries from accepting gifts in which the donor claims copyright or seeks to impose analogous access and use restrictions, and another that prevents institutions from claiming copyright in the donated materials or any derivative works created with them.
Together, these proposals help further a vision of higher education as a cultural and knowledge commons--a sector that exists in the public sphere to advance social welfare and responsible economic development to the greatest extent possible.
TABLE OF CONTENTS ABSTRACT 769 TABLE OF CONTENTS 770 I. INTRODUCTION 771 II. COPYRIGHT AND CREATIVITY ON THE MODERN CAMPUS: TRENDS AND CONCERNS 773 A. Student Entrepreneurship 775 B. Faculty, Staff, and Student Involvement in the Digital Humanities 786 C. Digitization Efforts and Trends in Library Special Collections 792 III. TOWARD REALIZING HIGHER EDUCATION'S POTENTIAL AS A ROBUST CULTURAL AND KNOWLEDGE COMMONS 798 A. Students Should Presumptively Own All of the Works That They Create as Students 802 B. Faculty Should Presumptively Own Nearly All of the Works That They Create as Faculty 805 C. The Public Should Enjoy Unfettered Use of Special Collections Material, Free from Copyright Claims Made by Donors or Institutions 807 IV. CONCLUSION 809 I. INTRODUCTION
Copyright is one of the most dynamic areas of the law, yet scholarly understanding of its role in higher education is not keeping pace with the times. This Article argues that fresh focus should be turned to copyright ownership on campus, to widen space for the flourishing of a cultural and knowledge commons in higher education.
Law professors Brett Frischmann, Michael Madison, and Katherine Strandburg conceptualize knowledge commons as "shorthand for the institutionalized community governance of the sharing and, in some cases, creation, of information, science, knowledge, data, and other types of intellectual and cultural resources." (1) Colleges and universities enjoy a unique capacity to serve as vibrant cultural and knowledge commons due to the creative capacity of their human resources (students and faculty), abundant artifactual resources (articles, books, works of art, and other objects of intellectual value, often housed in campus libraries), and historical norms of openness, sharing, and the disinterested pursuit of knowledge. (2) Together, these qualities create a special environment in which cultural and knowledge outputs become (1) close to non-excludable, meaning generally available to all of society, or impossible to prevent others from using, and (2) non-rivalrous, meaning others may continually share and enjoy them at low to no marginal cost. These environmental attributes form the core of higher education as a public good, serving as a sector that brings social and economic benefits to society. They also help explain why higher education enjoys enduring placement in the public sphere. (3)
While the aforementioned scholars' work devotes particular attention to the governance of knowledge commons, this Article deals more directly with how we might alter the legal and policy landscapes in higher education--specifically as they relate to copyright ownership--to create a more robust cultural and knowledge commons in which faculty, students, and society can share. The need for this alteration becomes apparent in reviewing three important trends occurring in higher education: (1) student entrepreneurship; (2) faculty, staff, and student involvement in the digital humanities; and (3) digitization efforts and trends in library special collections. (4) Despite the relatively developed scholarly literature concerning questions of copyright ownership and use in higher education, the existing body of scholarly work has not kept pace with these developments. (5)
These deficiencies in the literature mean that the time is ripe for a fresh look at copyright on campus. This Article begins in Part II by describing in detail the copyright ownership concerns that arise in the contexts of student entrepreneurship, digital humanities projects, and digitization efforts involving library special collections. Part III proposes changes to copyright law and policy in higher education, with a view toward enhancing the sector's potential to serve as a robust cultural and knowledge commons. The proposals are based on two moral premises: (1) higher education exists in the public sphere to further the public interest, and (2) colleges and universities best serve the public by protecting the freedom of intellectual inputs (talented individuals and valuable tangible resources) that lead to innovation and new forms of knowledge. For higher education to truly flourish as a cultural and knowledge commons, individual institutions must temper their impulses to restrict or claim the intellectual fruits of their faculty, students, donors, and other constituents--impulses all too often encouraged by existing copyright laws and policies.
Higher education can fulfill its promise as a constructed cultural and knowledge commons, but doing so will require applying different copyright rules on campus. This Article therefore advocates for higher education exceptionalism in the copyright space--not simply as a matter of permitting students and scholars ample room to make fair use of copyrighted works (which the law should allow), but also removing and prohibiting certain copyright ownership barriers that threaten the long-term existence and vibrancy of higher education as a cultural and knowledge commons. The public should expect more of colleges and universities regarding copyright, but "more" does not entail an increase in ownership claims by institutions--in fact, just the opposite. This Article outlines how and why institutions' ownership claims to creative works generated by students and faculty should be circumscribed. It also proposes limiting institutions' abilities to accept, as gifts to their special collections, tangible works subject to copyright claims by donors, as well as preventing donee institutions from claiming copyright in donations or any derivative works they create using donations. The net effect of these proposals is to envision the construction of a more sustainable, robust cultural and knowledge commons in higher education and broadly outline the changes to copyright law and campus policies necessary to enable that transformation.
COPYRIGHT AND CREATIVITY ON THE MODERN CAMPUS: TRENDS AND CONCERNS
Scholarly attention to copyright on campus has largely focused on two issues: (1) the copyright ownership question (i.e., who owns copyright in scholarly work, as between faculty and institutions), and (2) the copyright use question (i.e., the kinds of uses of copyrighted material in higher education that are fair uses, the kinds of uses that should be fair uses, and why fair use is important in higher education). (6)
Articles on copyright ownership evidence a slow trend toward a begrudging acceptance that work-made-for-hire principles apply in higher education--that is, institutions technically own copyright, automatically as a matter of law, to scholarship produced by faculty while employed by the institution. (7) This literature has also come to recognize the existence of many institutional policies that seem to suggest just the opposite: whether by custom, tradition, or recognition of scholarly norms, institutions cede ownership in traditional scholarly works and course materials to the faculty who create them. (8) While these policies may be rhetorically satisfying, there is little doubt that they do not amount to successful transfers of copyright ownership back to the faculty who create the works--only signed writings can accomplish such transfers. (9) Some policies contain carve-outs for software, distance learning materials, and other works that require "substantial" or "significant" campus resources for their creation, whether by faculty or even students. (10) Unfortunately, despite a few early empirical studies, little is known about the array of institutional policies regarding copyright and the application of those policies to some members of the academic community (e.g., students) and some scholarship-related initiatives (e.g., the open-access movement). (11) Precise statements about what these policies say...