Trespasses on intellectual property
Why the union contract is the faculty's best hope for protection

by Perry Robinson

Four trends have emerged in the last quarter-century that significantly are affecting how higher education institutions execute their missions.

One: During the last 30 years, increased globalization and international economic competition have placed pressure on universities to function as an integral part of the national economy. Large research institutions in particular are central to a modern industrialized nation's research capacity and crucial to what is described as the "knowledge" industry.

Two: States have reduced their financial support to higher education, forcing colleges and universities to find other funding sources. The commercialization of the university's intellectual property--through copyrights and patents--has become an important source of funding.

Three: The rapid emergence of distance education has ignited interest among corporations, venture capitalists, governors and higher education institutions in competing for the opportunity to serve a wider market--and for the opportunity to bring in bigger profits.

Four: In a series of rulings on the 11th Amendment and state sovereign immunity, the U.S. Supreme Court has nullified the jurisdiction of federal intellectual property law over states and "arms of the state." What this means is that state universities and most community colleges are immune from damage suits brought by citizens (or by state employees) for copyright infringement or violation of patent rights.

In light of the first three trends, this last development poses the most serious threat to the academy. The two purposes of intellectual property laws are to encourage the creation of new knowledge and to ensure that creators own and have the right to profit from their own writing, inventions and other creative endeavors. Although the creators may make arrangements for others to profit as well, they still retain the ownership. The law should protect creators from those who would expropriate their work.

The AFT's higher education leadership group, the program and policy council (PPC), has been following these trends as they affect our locals and the quality of the institutions in which they operate. The union has tried to stay a step ahead of the forces that treat knowledge and learning as a commodity. Later this spring, the PPC will release an in-depth analysis of these issues. This article is adapted from that work.
 

How protections have been lost

Congress passed the first Copyright Act in 1790 and has revised it four times since then, most recently in 1976. Among the most important provisions that affect faculty are the "work for hire" guidelines regarding ownership of copyright for creative works. Set out in the 1909 Copyright Act and expanded upon in 1976, "work for hire" refers to work the employee was hired to do, which makes it the property of the employer or sometimes owned jointly by employee and employer.

Prior to 1976, faculty enjoyed the presumption of an "exemption" from the work-for-hire provision based more on tradition than a firm legal basis. The tradition of an exemption was weakened, or, in the view of some legal experts, obliterated by the 1976 law, which explicitly defined who owned work for hire: the employer, unless a contract had been established that said otherwise. Faculty's traditional exemption was weakened by this language.

More seriously problematic for faculty than changes in the law, however, is the way the U.S. Supreme Court has viewed the jurisdiction of the law. Since its passage, some district courts have found that the law did not effectively abrogate the constitutional protections of the 11th Amendment. This has been the interpretation of the high court as well.

In recent years, the U.S. Supreme Court has become more activist in its rulings on sovereign immunity issues, disallowing private party suits for damages in the areas of civil rights, environmental protection, occupation and consumer safety, and labor protection as well as intellectual property (see "Spinning the 11th Amendment," May/June 2000 cover story, AFT On Campus). The 11th Amendment provides sovereign immunity to states from lawsuits brought by private parties under provisions of federal law.

The loss of rights seemingly protected by the U.S. Constitution is of grave concern to many, not least of which is Congress. Last year, Sen. Patrick Leahy (D-Vt.) proposed a bill called the Intellectual Property Restoration Act of 2001, which would force state institutions to waive their immunity from being liable for intellectual property infringements if they wanted to be able to sue others for infringing on the state's property rights.

On Feb. 28, 2002, at a hearing before the House Judiciary Committee's Subcommittee on Courts and Intellectual Property, which the senator heads, he complained that the principle of sovereign immunity was granting state universities a gross loophole. When colleges participate in intellectual-property disputes, Leahy said, "they're not performing a sovereign function; they're participating in a market."

Testifying before the same committee two years ago, Marybeth Peters, U.S. Register of Copyrights, explained how we arrived at the current "unsatisfactory" situation:

"We can probably all agree that when a state, or a state agency or an officer or employee of a state acting in an official capacity, infringes a copyright or another federal intellectual property right, the state should be held accountable for that infringement just as any other person or entity could be. For most of our history, it has been assumed that the states enjoyed no special immunity from suits for infringement of intellectual property rights, but in the past 15 years those assumptions have been called into question as the Supreme Court has breathed new life into the doctrine of sovereign immunity. [T]oday we find ourselves in a situation where states can infringe copyrights, patents, and trademarks with impunity."

This has a serious impact on higher education faculty, professional staff, researchers and graduate student employees. It has the potential of granting public college and university administrators an overwhelming advantage in disputes over ownership of intellectual property. How much of an advantage the administrators wield depends on two issues:

• The degree to which public universities and colleges as "arms of the state" seek to use the shield of state sovereign immunity to infringe the copyright and patent rights of their employees (or other U.S. citizens), owners of intellectual property (corporations, publishing houses, other higher education institutions, etc.), along with citizens of the other nations whose governments have signed the principal international treaty, the Berne Convention.
   
• The ability of faculty unions and other faculty organizations to negotiate contracts or develop policies that are based on federal legislation (the U.S. Copyright Act, among others) that will protect the intellectual property rights of faculty, staff, researchers and graduate student employees.

Also, there is movement in state legislatures to waive state immunity to lawsuits filed under a variety of federal laws. Minnesota and North Carolina have passed a waiver relating to federal civil rights laws. Legislation is pending in Illinois, New York and Rhode Island. Specifically, the Illinois bill would allow state employees to sue for violations of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). The New York bill would waive state immunity to liability under the ADA. And the Rhode Island legislation waives immunity for violations of the ADA, the ADEA, the FLSA, as well as patent and copyright laws.

How will universities act in light of their current immunity? In places where a collective bargaining contract is not in force, will universities begin to ignore their own stated policies, which are designed within the framework established by federal intellectual property law?
 

How unions are establishing protections

While Congress and federal legislation are unable to protect the interests of academic workers, unions are in a position to exert definitive power. That is because unions bargain contracts, and contracts are enforceable. Even where intellectual property rights are not contained within the binding contract, faculty can use their unions to hammer out institutional policies that, as often as not, reflect federal law. Therefore, it is very important that faculty keep abreast of intellectual property issues especially as their institutions become more involved in distance education and technology.

Negotiations on the topic of intellectual property are a relatively recent bargaining topic, cropping up only occasionally in the early 1990s, but increasing markedly in agreements concluded in 1998 and 1999. A growing emphasis on distance education has meant that union leaders at community and technical colleges are focusing on basic issues: workload, additional compensation for course preparation and "delivery," technical support, work jurisdiction (interacting with "deliveries" from other institutions) and intellectual property.

An early, outstanding example of an agreement on intellectual property emerged in 1996 from a successor contract negotiated by one of the nation's pioneer community college unions--Belleville Area Community College Employees Union in Illinois, now renamed Southwestern Illinois Community College.

A clause within that contract resolves the work-for-hire issue with precision, contains a degree of freedom for the individual to contract, and awards the "shop right" use to the college. It also contains the union leadership's anticipation of the value of instructional materials connected with asynchronous Web-based distance education.

Unlike the major universities, where possibilities of large rewards stimulate attention to sharing the profits, community colleges and their faculties do not anticipate large royalties.

The Los Rios College Federation (www.lrcft.org/) in Sacramento has taken a different tack in negotiating the work-for-hire issue. Within the contract, the word "primary" is intended to define a crucial distinction. An instructor is appointed primarily to teach, not to design distance-education "modules" in his or her spare time when not contending with an 18-hour teaching load. The contract allows for an instructional design professional to be assigned to create such a copyrighted instructional package.

The recent contract (www.aft1521.org/contract.html) negotiated by the AFT College Faculty Guild in the multicampus Los Angeles Community College District contains the most detailed coverage of intellectual property issues of any two-year college contract in the country. One distinctive feature is a comprehensive section on the "District's and College's use of faculty member's name" and "Faculty member's use of name of District or College."

Another unusual aspect of the intellectual property article is a separate clause on works not covered in the contract and thus completely shielded from any claim of ownership by the employer.

In Michigan, the Henry Ford Community College Federation of Teachers (www.hfccft1650.org/) has negotiated clauses that designate the "individual" instructor as owner of "lesson plans and materials," including "audiovisual and computerized presentations"; materials an instructor creates for distance education are also owned by the instructor, if the college has not contributed "substantive assistance from college technical support personnel."

Most university faculty unions either have not negotiated patent and copyright provisions in their contracts--simply referring to them as existing policies and practices to be continued--or have encountered difficulty in reaching agreement. One might assume that the pre-bargaining policies have been generally acceptable to faculty and that no change is needed.

The development of distance education and the spread of technology that creates a new type of intellectual property (educational courseware or software, for example)--coupled with the surge of competition at the state, national and international levels--has intensified interest in questions of copyright ownership, however. Some elite universities have become protective of their pedagogical "brand," including courses and faculty. Faculty may be viewed as verging on a conflict of interest if they provide educational services to another institution.

The New York Governor's Office of Employee Relations, which negotiates with the United University Professions/AFT (www.uupinfo.org/contract.html) at the State University of New York, has refused to negotiate technology issues, including those associated with intellectual property, for several years. SUNY central administration representatives have avoided even informal discussions of technology with the leadership of UUP even though SUNY's Learning Net distance-education program has been under way for some time. However, SUNY policies on copyright and software are cited in the contract as applicable to members of the bargaining unit. UUP has put out a publication, "Questions and Answers," that extensively reviews the issues.

The UUP emphasizes the definition of scope of employment and work for hire in the "SUNY Computer Software Policy" as a clarification of the copyright policy. Its definitions are:

Scope of Employment shall mean tasks assigned in a job description, letter of appointment or other specific written document.

Work for hire shall mean work done by faculty, employees or students under campus consultation, extra service or technical assistance arrangements through contract, consultancy or purchase order, but not within the Scope of Employment.

The United Faculty of Florida/AFT/NEA (www.unitedfacultyofflorida.org/) contract negotiated in 1995 was the first university contract to cover "Inventions and Works" and works of interest to a technology transfer office. The article was retained in almost identical form in the 1998-2001 agreement. Intellectual property was defined under the heading of copyright, "invention," and "instructional technology material," the latter in a companion article. The article is, from the union standpoint, flawed in several respects, one being the critical definition of "university support" in the definition section, qualified only by the adjective "appreciable" in a following section of the article.

"University support" includes the use of university funds, personnel, facilities, equipment, materials or technological information, and includes such support provided by other public or private organizations when it is arranged, administered or controlled by a university.

The intellectual property policy negotiated by the University of Massachusetts Faculty Federation and the University of Massachusetts-Dartmouth is the most complete collective bargaining clause on the subject. It is 17 pages in length and exhibits the unmistakable imprint of the legal profession. We recommend that those responsible for negotiations read it in its entirety.

Higher education institutions may assign and support development of online course materials and lay claim to ownership as the result of work for hire. But it is also possible for faculty at most institutions to develop such courses and own the copyright if they carefully avoid the "substantial" or "significant" use of resources that trigger the work-for-hire claim, or if they negotiate a clause like that of the Henry Ford Community College Federation.

If a faculty member or academic professional working for a public institution chooses that course of action, he or she will have a much better chance if covered by a collective bargaining contract. This is the case, however well-designed the intellectual property provisions are, because there is a contract. The institution cannot take advantage of the Supreme Court's removal of states and their "arms" from the authority of federal copyright and patent law. Employees of private institutions are still covered by the law and can be sued for infringement.