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September 16, 2004

Tips for Faculty

Law professors Michael Madison and Kevin Ashley said there are copyright issues that faculty, particularly, should be aware of.

In a university setting, faculty and other academic researchers generally keep individual copyrights to their scholarship and teaching materials, although that can vary by institution, Madison said.

However, that can change once such material has been published. “Many of us want to publish on our own web site a copy of our own journal articles,” Ashley said. “Let’s say I have made the citations hypertext-linked to a PDF file of my own paper. That itself could be a violation of copyright, if presumably I transferred the copyright interest to the journal.”

Many journals, recognizing the penchant faculty have for this type of behavior, often build permission for that into the original contract, he said.

Another issue is faculty who create course packets that draw on copyrighted material, Ashley said. “If I’m using the material only for my class, wouldn’t you think that comes under fair use? Well, the University doesn’t take that position.”

Instead, the University avoids possible suits for infringement by paying royalties to the copyright owners’ representative through a clearinghouse that is designated by authors or publishers to act on their behalf. Royalties are built into the fees that the University’s copy center is charging the students for copies, he said.

“Now, let’s say I was to take that course package and publish it on the web. If I’m not careful to make sure that the accessibility of that material is limited to my class, I’m making it available to the world. That probably is a copyright violation,” Ashley said. “And even if it is limited to my class, there’s still a question as to whether by publishing just a couple pages, or a whole article, I am negatively affecting the market for the sale of the article,” he said. “As one Supreme Court opinion held: In this country, distributing information for educational use is a commercial activity. We pay those textbook publishers, we pay those journal article publishers, and so the mere fact that it’s educational is not a guarantee that it will be considered a fair use under the law.”

Faculty who develop their own course-related software also should be mindful of ownership rights. “Who owns that software? After all, the faculty are employees of the University as well. Whereas the policy of the University generally doesn’t assert a copyright interest in a book I might write in my field, for instance, they are prepared to assert a copyright interest in a course software that I create, especially to the extent that I use University facilities to create it.”

-Peter Hart

Filed under: Feature,Volume 37 Issue 2

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