Abstract
According to the “work made for hire doctrine” of the Copyright Act, the creators of artistic and literary works are not legally granted ownership of works created in the course of employment; ownership rests with the employer. However, through de facto custom and court dicta, academics may enjoy a “teacher exception” that grants them copyright ownership of publications and course materials. Though there are several benefits behind this practice, the question of intellectual property ownership has blurred as institutions are investing in distance education and commissioning faculty members to create online courses.
This is a preview of subscription content, access via your institution.
References
Burr, S. L. (1990). A critical assessment of Reid’s work for hire framework and its potential impact on the marketplace for scholarly works. John Marshall Law Review, 24(1), 119–143.
Castagnera, J. O., Fine, C. R., & Belfiore, A. (2002). Protecting intellectual capital in the new century: Are universities prepared? Duke Law & Technology Review. Retrieved February 22, 2009, from http://www.law.duke.edu/journals/dltr/articles/2002dltr0010.html
City of Newark v. Beasley. (1995). 883 F. Supp. 3 (D.N.J).
Community for Creative Non-Violence v. Reid. (1989). 490 U.S. 730.
Copyright Act (Pub. L. No. 94-553, 90 Stat. 2541).
Copyright Act. (2000). 17 U.S.C. Section 26, 101, 201 (b), 301(a).
Copyright policy of the University of North Carolina at Chapel Hill. (2009). Retrieved August 21, 2009, from http://www.unc.edu/campus/policies/copyright%20policy%2000008319.pdf
Crews, K. D. (1990). Copyright polices at American research universities: Balancing information needs and legal limits. Los Angeles, CA: Unpublished doctoral dissertation, University of California, Los Angeles.
Denicola, R. C. (2006). Copyright and open access: Reconsidering university ownership of faculty research. Nebraska Law Review, 85(2), 351–382.
Dreyfuss, R. C. (1987). The creative employee and the Copyright Act of 1976. University of Chicago Law Review, 54(2), 590–647.
Garon, J. (2002). The electronic jungle: The application of intellectual property law to distance education. Vanderbilt Journal of Entertainment Law & Practice, 4(2), 146–172.
Hays v. Sony Corporation of America. (1988). 847 F.2d 412 (7th Cir.,).
Hiers, R. H. (2004). Institutional academic freedom—a constitutional misconception: Did Grutter v. Bollinger perpetuate the confusion? Journal of College & University Law, 30(3), 531–582.
Holmes, G., & Levin, D. A. (2000). Who owns course materials prepared by a teacher or professor? The application of copyright law to teaching materials in the internet age. B.Y.U. Education & Law Journal, 1, 165–189.
Intellectual property policy. (1995). Athens, GA: University of Georgia.
Intellectual property rights and distance education. (2007). Macon, GA: Mercer University.
Kamens, T. E. (2004). Intellectual property policies in the digital age: Who owns the course and does it matter? Philadelphia, PA: Unpublished doctoral dissertation, University of Pennsylvania.
Kilby, P. (1995). The discouragement of learning: Scholarship made for hire. Journal of College & University Law, 2(3), 455–488.
Klein, M. W. (2004). “The equitable rule”: Copyright ownership of distance-education courses. Journal of College & University Law, 31(1), 143–192.
Klein, M. W. (2005). “Sovereignty of reason”: An approach to sovereign immunity and copyright ownership of distance-education courses at public colleges and universities. Journal of Law and Education, 34(2), 199–254.
Klein, M. W. (2007a). “An intellectual production”: Influence of law and policy on faculty ownership of copyright in Massachusetts and New Jersey. Retrieved February 28, 2009, from http://www.educationlawconsortium.org
Klein, M. (2007b, November). Who owns online courses? The collective-bargaining battles in Massachusetts and New Jersey. Paper presented at the meeting of the Association for the Study of Higher Education, Louisville, KY.
Kulkarni, S. R. (1995). All professors create equally: Why faculty should have complete control over the intellectual property rights in their creations. Hastings Law Journal, 47(1), 221–256.
Lape, L. (1992). Ownership of copyrightable works of university professors: The interplay between the Copyright Act and university copyright policies. Villanova Law Review, 37(2), 233–271.
Marcus, A. D. (2003, March 25). Why Harvard Law School wants to rein-in a star-struck professor. Wall Street Journal. Retrieved February 8, 2009 from http://www.bccancer.bc.ca/NR/rdonlyres/D2528B72-08DE-42D1-88E6-58CA6BEC1928/3604/TheWallStreetJournalInteractiveEdition1.pdf
McSherry, C. (2001). Who owns academic work?: Battling for control of intellectual property. Cambridge, MA: Harvard University Press.
MIT’s OpenCourseWare project nears completion. (2007, March 12). Chronicle of higher education. Retrieved February 8, 2009, from http://chronicle.com
Packard, A. (2002). Copyright or copy wrong: An analysis of university claims to faculty work. Communication Law & Policy, 7(3), 275–316.
Poskanzer, S. G. (2002). Higher education law: The faculty. Baltimore, MD: The Johns Hopkins University Press.
Preamble to the Columbia University copyright policy. (2000). Retrieved August 21, 2009, from http://www.columbia.edu/cu/provost/docs/copyright.html
Sandler, C. (2001). Copyright ownership: A fundamental of ‘academic freedom’. Albany Law Journal of Science & Technology, 12(2), 231–261.
Shaul v. Cherry Valley-Springfield Central School District. (2004). 363 F.3d 177 (2nd Cir).
Sweezy v. New Hampshire. (1957). 354 U.S. 234.
Twentieth Century Music Corp. v. Aiken. (1975). 422 U.S. 151.
United States Constitution article 1, Section 8, clause 8.
University of Colorado Foundation, Inc. v. American Cyanamid Co. (1995). 880 F.Supp. 1387 (D. Colo.).
The University of Texas System intellectual property: Who owns what? (2007). Retrieved August 21, 2009, from http://www.utsystem.edu/ogc/intellectualproperty/WHOWNS.HTM
Urofsky v. Gilmore. (2000). 216 F.3d 401 (4th Cir).
Vanderhurst v. Colorado Mountain College District. (1988). 16 F.Supp.2d 1297 (D. Colo).
VerSteeg, R. (1990). Copyright and the educational process: The right of teacher exception. Iowa Law Review, 75(2), 381–416.
Weinstein v. University of Illinois. (1987). 811 F.2d 1091 (7th Cir).
Williams v. Weisser. (1969). 273 Cal.App.2d 726 (Cal. Ct. App).
Acknowledgement
Sincere thanks to Professor Paul J. Heald of the University of Georgia School of Law for his assistance in developing the idea for this paper and supervising its completion and to Michael Klein, Esq. for his most helpful comments during the editing phase.
Author information
Authors and Affiliations
Corresponding author
Additional information
Joy Blanchard
is an independent consultant from St. Martinville, Louisiana. She holds an Honors baccalaureate in French education from the University of Louisiana at Lafayette, a Master’s degree in higher education from Florida State University, and a Ph.D. in higher education from the Institute of Higher Education at the University of Georgia. Her research interests include higher education law as it relates to institutional liability as well as faculty issues. She previously has served as Assistant Dean of Students at the University of Louisiana at Lafayette and also has worked in residence life, judicial affairs, student activities, and service learning. She may be contacted at joy_blanchard@hotmail.com.
Rights and permissions
About this article
Cite this article
Blanchard, J. The Teacher Exception Under the Work for Hire Doctrine: Safeguard of Academic Freedom or Vehicle for Academic Free Enterprise?. Innov High Educ 35, 61–69 (2010). https://doi.org/10.1007/s10755-009-9124-1
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10755-009-9124-1