March/April 2002 // Commentary
Drafting a Faculty Copyright Ownership Policy
by Laura N. Gasaway
Note: This article was originally published in The Technology Source ( as: Laura N. Gasaway "Drafting a Faculty Copyright Ownership Policy" The Technology Source, March/April 2002. Available online at The article is reprinted here with permission of the publisher.

Many colleges and universities are either considering ways to revise their existing copyright policies or drafting new policies. A copyright policy encompasses both the use of copyrighted works owned by third parties and the ownership of works generated by faculty, staff and students within an institution. The purpose of an ownership policy should be to encourage research, scholarship and the dissemination of knowledge; thus, the ownership model the school adopts should further this purpose.

Over the past few years, several converging developments have caused institutions to reconsider faculty ownership as the model for all types of faculty-created works. First, faculty are creating new types of works, such as online courses and digital courseware, and universities are questioning whether institutional interests are well served if faculty hold the copyright on these works. Second, since many of the courses may have commercial potential, the institution may want not only to continue using the copyrighted work internally, but also to share in the proceeds from a commercialized course. Third, faculty members often need increased assistance from the university—such as programming help, video production assistance, and computer support—to develop these courses or to produce digital instructional materials.

One caution, however. The copyright ownership policy issue should not be overshadowed by the institution's patent and technology transfer policy. Every faculty member produces copyrighted works, but only a few ever produce patentable inventions. Either a separate policy or an overall intellectual property policy with separate sections is preferable so that copyright policy is not lost in the midst of the complications of the patent policy.

This article aims to discuss the reasons that institutions need to review and revise their copyright ownership policies at this time. It highlights the major issues that colleges or universities, as well as faculty members who create these works, should consider in undertaking policy revision. Finally, the article offers advice on how to approach the process and the various matters that must be addressed.

Is a Policy Necessary?

There are several reasons that a college or university should either review its existing policy or draft a new one. One reason is to protect the interests of the college or university itself. Institutions have particular interests in works that are created as teaching materials, online courses, etc., and often their real interest is in being able to continue to use the work without permission of the faculty author. Moreover, the institution may want to own the copyright in order to be able to commercialize the work. The policy should therefore spell out the interests of the college or university and specify when it rather than the faculty member will own the work. In turn, a clear ownership policy also protects the faculty member by spelling out the rights of the faculty member in relation to the creative works he or she produces. Knowing up front that the institution may claim rights for certain types of works if there is a certain level of institutional support in creating them helps the faculty member decide whether or not to take advantage of the offered support.

There are legitimate arguments that faculty-generated works are works for hire, and if so, then the Copyright Act declares that the university (the employer) is the author of the work and therefore owns the copyright. However, this is not the tradition in the United States. The Act defines a "work for hire" as one prepared by an employee within the scope of employment, and thus staff-generated works may be treated differently from faculty works. Because the work for hire standard is not the tradition in this country for faculty-created works, it cannot provide a universal rule for copyright ownership in the academy; conflicting interests will still arise.

Consequently, the primary reason to have a policy is to deal with issues before a dispute arises between the institution and a faculty member. Absent a policy, the only way to redress a grievance may be for the aggrieved party to file suit. An effective copyright policy should provide for a dispute resolution mechanism; moreover, if there is to be a sharing arrangement or other ownership model, then the policy should make it clear up front.

The Process

The ideal process of developing a copyright ownership policy must involve representatives of all interested parties. A policy drafted solely by legal counsel with no faculty, staff or student input will be much less palatable than one a broader group helps draft. It is critical that the process be viewed as fair and that the policy ultimately respects the rights and expectations of all parties, including the institution.

Such broad involvement means that the drafting group will necessarily be large. Existing governance processes (such as faculty senate committees) may not provide a sufficiently broad group to represent all concerned parties; concerned parties also include faculty, staff, students, librarians, administrators, technology transfer staff and legal counsel. However, faculty members should comprise the bulk of the membership of the drafting group. This reduces the likelihood that faculty will think that the administration or legal counsel is forcing them to adopt a new policy, and it gives dominant representation to the primary group affected by an ownership policy. The faculty should represent various academic disciplines in order to reflect the broadest range of faculty-created works.

Before actual drafting can begin, issues should be discussed and decisions reached about the underlying assumptions in the policy. For example, will the default policy be faculty ownership or university ownership? Regardless of the default, there are certain factors that will likely dictate another ownership model for certain types of works. These factors should be identified. If the drafting group can work with a larger group of interested parties to hammer out the issues and the positions that the policy should take prior to drafting, the job will be much easier.

Contents of the Policy

Faculty Ownership vs. Institutional Ownership: Pros and Cons

Even within traditional works produced by faculty, a copyright ownership policy may differentiate among scholarly publications, artistic works, and instructional materials in assigning copyright ownership. Institutions will most likely want ownership of instructional materials. For example, a college or university may claim ownership if the campus has granted release time to the faculty member in order to develop the instructional materials, or if there is separate payment to the faculty member for course development. On the other hand, the university's real interest may be in the right to continue using the work within the institution rather than in ownership of the copyright.

The benefits of faculty ownership are many, not the least of which is the long tradition in higher education that recognizes faculty ownership for works that enrich the world by expanding scholarship and disclosing new knowledge. Because these works are products of the individuals' minds, faculty believe that they do and should hold the copyright in the works they produce. Copyright ownership has often been viewed as a reward for low-paying faculty positions, and any royalties that such works generate can help to supplement faculty pay. Additionally, faculty ownership of their work products provides incentives for additional research and scholarship, since they can build on earlier works, incorporate articles as book chapters in other works they are developing, update their works, and so forth. In its Statement on Copyright, the American Association of University Professors (AAUP) proposes faculty ownership for such policies. Finally, copyright ownership makes faculty happy!

Even within the tradition of faculty ownership, there may be circumstances in which the university should own the copyright. For example, if the university has invested exceptional or substantial resources in the creation of a work, it may insist upon owning the work. Often this is restricted to works that have been commercialized and have produced significant royalty income. In these situations, the institution may require the faculty member to notify the university that the work has been commercialized, and may insist that royalties be shared with the institution. Alternatively, if the faculty member owns the copyright, the university may require reimbursement for the expenditures along with a "shop right"—a nonexclusive, nontransferable, royalty-free license to continue to use the work within the institution for educational and research purposes. Some ownership policies focus on the extent to which university resources were used to create the work; if that use is deemed out of the ordinary, then the university owns the work.

The terms "exceptional," "significant," and "extraordinary" have all been used in various policies to define when use of resources is beyond the ordinary. However, defining what constitutes more than minimal or reasonable use of resources is difficult; for larger institutions, this may have to be done department by department, since what is exceptional in one department may be normal in another. Significant resources might include release time from normal academic duties, exemptions from fees for use of equipment and space, or direct grants from the institution for the production of the work. Ordinary use of equipment, telephone and fax, space, library resources, and ordinary use of secretarial and other staff assistance are not likely to qualify as exceptional. The policy also should permit faculty to negotiate with the appropriate academic administrator, such as a department head, concerning what resources will be considered exceptional to produce a given work.

There are also benefits to university ownership in certain circumstances. For example, the university may be best situated to help commercialize the work or to evaluate its commercial potential. If the university owns the copyright to the work, then it must deal with all of the requests for permission to use the work, and it is more likely to have an established office for that purpose. As the institution becomes more experienced in managing the copyrights that it owns, it will be better able to advise faculty on copyright generally—such as by helping the faculty member to select publication sources that offer the best deals for academic authors and the users of their works. Some faculty may consider university ownership with shared royalties to be easier. On the other hand, in order to manage its intellectual property successfully, the institution will require some investment in staff to handle the contracts, the registration of the works, and so on. Because of this, smaller institutions may not have an interest in managing the copyrights of any works produced by its faculty.

Default Policies: Collaborative Work and Joint Ownership

There are other policy issues that are particularly complicated. For example, when the research that produces a copyrighted work is funded by a grant or contract, the terms of the grant prevail. It may specify that the work remain in the public domain or that the institution must hold the copyright. If the funding authority is silent with regard to ownership, then the policy should have a default either to the faculty member or to the institution. When a copyrighted work is created jointly by a faculty member and a staff person, or through faculty and student collaboration, ownership issues are complex and the policy should specify ownership rights.

One final complicated issue arises when many collaborators work on a project, such as a laboratory manual created over time by several faculty members, staff, and so on. Multiple collaborators may mean that the university or college should own the copyright, since the institution likely directed and controlled production of the work.

There are also instances when joint ownership might be the best choice. If the copyright is to be jointly owned, the policy should require agreement about whether the ownership will be held equally or in different percentages. Also, the royalty-sharing agreement should be determined up front.

Implementing a New Ownership Policy

If the new policy alters the old copyright ownership model, acceptance of the policy by the campus community is crucial. Faculty must be involved in the process from the first, both in drafting and later in "selling" the policy. If the drafting committee is chaired or co-chaired by a faculty member, all the better, since this may reduce the resistance to a new policy. As the policy nears completion, a draft should be shared with the various governance groups on campus. The faculty senate and faculty members of the drafting group are ideal spokespersons for the policy.

After approval of the policy through the normal policy approval channels, the institution should allow some time before the policy becomes effective so that it can educate the community about the new policy and establish the essential dispute resolution mechanisms. This will be particularly important if the new policy represents a substantial change over the prior policy or if there was no previous policy at all. Giving ample lead time before the ownership policy becomes effective should reduce uncertainty about the policy and its application.


Drafting and implementing a new copyright ownership policy will serve to clarify the needs and rights of institution as well as of its faculty, staff and students. It can also be a very useful collaborative process among faculty, staff, students, administrators, librarians, and legal counsel. A properly drafted ownership policy, with ample input from all affected groups as well as adequate publicity about its contents, should make the transition a smooth one. It also should achieve the overall goal of reducing disputes between the university and the faculty over the ownership of works created by faculty.

[Editor's note: This paper is modified from a presentation at the 2001 EDUCAUSE conference in Indianapolis, CA.]

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