Brian Higgins is a first year law student at Osgoode Hall and is taking the Legal Values: Challenges in Intellectual Property course.
David Lametti’s 2001 article, “Publish and Profit?: Justifying the Ownership of Copyright in the Academic Setting”, details the intricacies of copyright ownership in a university setting ((2001), 26 Queen’s L.J. 497 – 567). While his analysis concludes that the author should generally receive first rights of ownership, it seems to uncover more questions than it can answer.
His article centres around s.13(1) and 13(3) of the Copyright Act, which provide a general rule for copyright ownership (the author) and an exception (the employer, where work is done in the course of employment and without a contract to the contrary).
At first glance, one might expect that a university professor falls into the exception. After all, a professor draws a salary from the school in exchange for her work. However, how can one determine whether work is done “in the course of employment”?Universities usually require professors to complete research and publish work. That being said, there is generally very little university direction on the actual contents of their work. The argument made is that a professor’s employment does not hinge on whether or not she creates a particular work, hence a particular work is not made “in the course of employment”.
There are other arguments that justify author owned copyright in the university setting. The theory of personhood provides justification through the close relationship between an author and his work. Labour theories would say that the professor’s hard work validates his right to copyright ownership. Historically, universities have always allowed professors to own copyright in their work.
These arguments hold true for single authors creating traditional works like journal articles. However, when we move away from this paradigm, we find ourselves in a grey area where author owned copyright becomes less simple to justify. Lametti spoke of a spectrum of copyright ownership possibilities under s.13(3). At one end is the clear-cut case of an employee who creates a specific work at the request of his employer (the employer will own the copyright). At the other end is a professor creating a traditional work (the author will own the copyright). When Lametti’s article was published in 2001, this spectrum was full of possibilities. This is no less the case today. A look at some of the factors that cause uncertainty illustrate this point.
Collaborative Work
It is not uncommon for academics to work together on a project. The number of people involved in a given work might be seen as one axis of the above mentioned spectrum. Think of two people working together to publish an article. Most would agree that this is not much different than the case of a single author, hence copyright ownership should accrue to both authors. However, as we move along this axis, the ownership arguments become less clear. What should happen when an entire department collaborates on a work?
Originality
When a work is entirely based on the ideas of an individual there is an argument that she should own the copyright. On the other hand, when an employer asks for a specific job to be done, it is fairly clear that the employer should retain ownership (absent a contract to the contrary). Many works in a university setting lie in the grey area between these extremes. Software can land almost anywhere on this axis. One person could create an original video game, entirely of her own volition. A team might be asked to create a social networking program, but retain complete creative freedom. What about a university that requests an online registration program with specific requirements. There are countless possibilities.
Economic value
Universities have historically allowed authors to retain copyright ownership for traditional scholarly works. One of the main reasons for this policy was their lack of economic value. A university is a large and complex organization. It cannot spend its time and resources working to publish small works in the hopes of royalties. This position rapidly changed as research and creative work began to show the prospect of large economic benefits (e.g. software). History be damned if there’s money to be made. That being said, the university’s position might be justified where it provides considerable resources. There are, however, examples that lie in the middle ground (e.g. textbooks).
These are but a few of the factors that can affect arguments for author ownership in a university setting. Although the list is by no means exhaustive, I think the motivation provided by economic value will prove to be the primary threat to the author’s rights.