The Bayh–Dole Act of 1980 enabled American universities to engage in technology transfer. Thirty years of research has investigated the legislation’s effectiveness and derivative university practices, such as the establishment of technology transfer offices. Unfortunately, the technology transfer literature has focused primarily on patenting as the primary transfer vehicle for protecting intellectual property in universities, overlooking other forms of IP ownership, such as copyrights. Legal scholarship shows, however, that universities are increasingly using copyrights to protect their intellectual property and that the number of university-held copyrights exceeds patents. This paper examines the use of copyrights to protect and transfer university IP. It does so by reviewing underlying legal and policy concepts associated with copyrights and offers contemporary examples of copyright issues within universities. The paper therefore provides a foundation for future research on the role of copyrights in technology transfer.
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Copyrights are often included in science policy scholarship among other types of IP protection, especially patents, as an important consideration for institutional policy or firm strategy. A keyword search of the term “copyright” in Journal of Technology Transfer and Research Policy, for example, yields various responses. A closer examination of returned articles reveals that while scholars use copyright as, for example, an important output among knowledge-based firms (e.g., Bergmann 2017; Siegel and Wessner 2012), little effort is devoted to understanding how and why they do so.
Much of the Copyright Act is technical in nature, and the subject of intense lobbying by interested groups (e.g., the recording industry, the movie industry, book publishers, and rights management groups). The Copyright Act of 1976 represented the biggest shift in copyright law in the United States, and was the result of years of lobbying and hearings in Congress (Crews 1993). While additional tweaks to the law have been made since—for example, the revisions in 1998 extended the term of copyright protection—the fundamental underpinnings remain firmly established. Federal circuit courts do play important roles, though, in refining how the law applies in emerging technological and contested areas. Unsurprisingly, the federal circuit courts whose jurisdictions cover California and New York—two states that house the majority of ‘content’ companies in the United States—have been particularly influential in interpreting copyright law.
By way of comparison, utility patents are much more expensive to obtain. The cheapest governmental fee that a small organization will pay to obtain a patent is $1210, and that cost goes up to several thousand dollars depending on the size of the applicant’s organization and the complexity of the patent (see https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule#Patent%20Fees). These costs do not take into account attorney fees in prosecuting a patent. Whereas copyright registrations may be obtained without the assistance of an attorney (and commonly are), only a member of the ‘patent bar’ may prosecute a patent application. A 2017 survey of patent practitioners found that the average cost to prosecute a utility patent application, on an invention of minimal complexity, was $8523 (AIPLA 2017). The actual cost was over $11,000 in some jurisdictions. Patent applicants will pay additional fees (in the thousands of dollars) to attorneys to amend the application or respond to arguments made during examination. If the patent issues, they will also have to pay ‘maintenance fees’ ranging from $3150 to $12,600 (depending on the size of the patent owner’s organization) to maintain the patent for the duration of its term.
See, for example, Hayter and Rooksby (2015) discussion of the Supreme Court case Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc. The case not only led many universities to rewrite faculty employment contracts, it also supported arguments that universities have the legal flexibility to choose multiple paradigms of IP ownership, including faculty, government, and third-party ownership, that might lead to better technology dissemination and commercialization outcomes (Hayter and Rooksby 2015).
Unfortunately, the government’s copyright database is neither user friendly nor easily manipulated for analysis. First, conducting custom searches is time intensive, given the interface of the online database. For example, when hundreds or thousands of records meet a given search criterion, not all records are displayed on one page. Second, each record must be examined individually to capture and transcribe the data of interest—the data cannot be downloaded in the aggregate. Third, a high degree of variation exists in how registration data has been entered in the online database, because of different practices deployed by the U.S. Copyright Office through the years, as well as idiosyncratic preferences or habits of the different librarians entering the records. Fortunately, alternatives to searching in the copyright database have recently become available, such as LexisNexis’s database of over 32 million copyright registrations available for searching (see https://www.lexisnexis.com/infopro/keeping-current/b/weblog/archive/2017/08/03/copyrights-amp-trademarks-registrations-added-to-lexis-advance-ip-library.aspx). We leave it to future work to describe the best approaches to shepherding the data we call for here.
In addition to any inhouse lawyer at a university who focuses on copyright law, librarians tend to be among the most knowledgeable people on campus concerning copyright. This connection between librarians and copyright should not be surprising, given that the U.S. Copyright Office is housed within the Library of Congress.
In their teaching and research capacities, professors often utilize copyrighted materials for purposes of teaching, commentary, and scholarship. However, recent case law involving universities demonstrates that the doctrine of fair use does have limits in the educational context (Cambridge Univ. Press v. Patton, 769 F.3d 1232 (11th Cir. 2014)). The advent of the Internet and associated proliferation of digital media have made these fair use issues even more complicated.
For example, recent litigation involving Google and HathiTrust addressed whether the large-scale scanning of books under copyright, for purposes of making the knowledge in those books text searchable, was covered by fair use, both by Google and a consortium of universities (which contributed books in its libraries to the project, and wished to offer limited views of the books to its users in response to search queries). The courts held that it did (Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014); Authors Guild, Inc. v. Google, Inc., 804 F.3d 202 (2d Cir. 2015)).
See, for example, discussions concerning universities and proposed amendments to patent law aimed at curbing so-called “patent trolls” (Valdivia 2015).
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Rooksby, J.H., Hayter, C.S. Copyrights in higher education: motivating a research agenda. J Technol Transf 44, 250–263 (2019). https://doi.org/10.1007/s10961-017-9632-6
- Technology transfer
- Bayh–Dole Act
- Intellectual property
- Knowledge exchange
- Legal research