Rights in the virtual classroom

Universities have long used their patents as a means of generating income, and established models for tech transfer bring the institutions millions of dollars in royalties. However, in recent years, the internet has provided a platform for sharing the universities’ lifeblood—research and teaching—in the form of published papers and course materials.

What are the rules for sharing these materials? Who do they belong to, the university or the lecturer? How are they protected, and what provisions are there for the transfer of this knowledge?

The issue has been steadily coming to the fore as universities around the world start to share their course materials online, through freely-available massive open online courses—MOOCs—and researchers post their papers on personal blogs and social networks.

“It’s now so easy to disseminate this information, but it’s not always clear whether it’s being shared under a university header or by a different organisation,” says Mary Rose Scozzafava, partner at Wilmer Cutler Pickering Hale and Dorr LLP in Boston.

“Understanding authorship is important because there are many different distribution channels.”

A new Napster

The ease with which research materials can be posted and shared online presents a model that calls to mind the Napster-led surge in illicit file-sharing that has dogged the music industry since the late 1990s and early 2000s. There are some major differences of course, mainly that the sharers tend to be the creators. However, there is some dispute over rights and, like the music publishers in the file-sharing saga, the journal publishers are starting to make themselves heard.

In May this year, it emerged that engineering society and publisher the American Society of Civil Engineers (ASCE) had been issuing takedown notices via its ‘piracy protection’ partner Digimarc.

Similarly, last December, academic publisher Elsevier started demanding that universities, including Harvard and the University of California-Irvine, as well as academic social media network Academia.edu, start taking down their professors’ research papers, as reported in The Washington Post.

The publishers argued that as the authors signed the copyright to their works over to their journals in order to have their work published, posting them to personal websites constituted copyright infringement.

Many researchers vented their frustration on Twitter, arguing that sharing research is in the interest of scientific progress.

When contacted by WIPR, the ASCE said that it understands that authors want to share their research, and that it supports them in their efforts.

Authors may post their own papers provided they are “a final accepted manuscript as submitted to ASCE following peer review”, and that a link to the final ASCE version is included, it said in a statement.

However, ‘as-published’ versions of papers may be shared only on a password-protected internal website.

Whose rights?

Who holds the rights to university course material and research? Under copyright law, doesn’t the author have some form of underlying right to his or her work?

“This is the subject of significant controversy in the US,” says Brian Wassom, a partner at Honigman Miller Schwartz and Cohn LLP in Michigan.

“The presumptive rule is that the author of any written work containing even a modicum of creativity owns the copyright in that work,” he explains, adding that the US Copyright Act provides an exception for “works made for hire”, or works created in the course of the author’s employment.

“More than 80 years ago, however, American courts began recognising a common law ‘teacher exception’ to this exclusion, holding that the longstanding tradition of professors retaining ownership of their own teaching materials meant that treating these resources as works made for hire would be against public policy.”

The act was overhauled in 1976, but Wassom says there are still disagreements on whether the ‘teacher exception’ still exists. The few trial decisions that have dealt with the issue have been split.

“Therefore, although there is no longer a definitive answer to the question, the universities’ basis to claim ownership is much stronger than it used to be.”

Free access

Playing the part of the file-sharing host in this Napster scenario, website Academia.edu allows users to share research papers with subscribers. Its mission is “to accelerate the world’s research”. It has more than 11 million subscribers, with 15 million unique visitors a month accessing nearly three million papers.

Understandably, its chief executive Richard Price is a champion for free access, telling Times Higher Education in May that discoveries by amateurs would happen more frequently if there was wider access to research.