Journal of Law, Information and Science
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Leanne Wiseman[∗]
As university resources have expanded to include computer programs and multimedia works, universities are re-thinking their approach to copyright. In the copyright ‘debate’ universities tend to argue that copyright stands in opposition to one of the core aims of the university – the freedom of exchange of information and ideas. However, copyright does not have to be a barrier to the pursuit of knowledge and higher learning in universities. Copyright may serve a range of interests, so long as a balance is struck between the rights of academics to retain control over their copyright works and the sharing of knowledge that is central to the success of universities. Copyright should not inhibit productive work.
The author suggests a number of ways in which universities and academics may be able to regain control of copyright: academics retain ownership of copyright; universities claim ownership of copyright in works produced in the university; and shared ownership (between universities and academics) of copyright.
The university sector, now more than ever, is in a state of flux. In part, this can be traced to the technological changes brought about by the widespread use of the photocopier and the internet which have had a profound impact on many facets of the modern university. These technological developments mean that academic employees increasingly produce potentially valuable materials such as computer programs, videos, sound recordings and electronic databases. With new markets opening and expanding for the distribution and marketing of such academic materials, there is also greater recognition that academic creations such as journal articles, teaching materials, lecture notes and books may be exploited commercially. The growing economic pressure on universities to become commercially productive and more self-sufficient has also been an important impetus for change. Continued reductions in government funding and consequent budgetary constraints, growing students numbers and increasing community demands for accountability has meant that universities are having to reassess their objectives and goals.[1]
Another agent of change in contemporary universities, which has been fuelled by many of the other transformations that have been taking place within the academy, is copyright. As universities look to ways of increasing their revenue, attitudes to copyright of works produced within the university have changed. As the types of copyright materials produced within universities has expanded to include computer programs and multimedia works (which are seen to have a potential world-wide market) universities are now rethinking the way they approach copyright. This change in attitude is reflected in the policies which have been adopted to address the issues of ownership and exploitation of copyright works produced within the university. The increasing use of course-packs by academics trying to deliver courses to an ever-increasing body of students has exacerbated the tensions that exist between universities and collecting societies. The rising costs of licence fees paid to rightsholders’ collecting societies, notably Copyright Agency Limited (CAL), has also contributed to the pressure on library budgets, upon teaching practices, and on the daily life of academics. This is without doubt the cause of much concern. Copyright is also seen to impinge upon the ability of universities to achieve their goals of the promotion of learning and understanding, as well as the creation and dissemination of scholarly works to the wider community.[2]
These changes have spawned a growing and increasingly divergent debate as to the nature and role of copyright law in the higher education sector.[3] One of the common themes in these discussions is that copyright stands in opposition to what is widely regarded as one of the core aims of the university: the freedom of exchange of information and ideas. Copyright is often thought of as presenting barriers to the access and dissemination of information and thus being antithetical to freedom of exchange and the public domain.
While not granting protection over subject matter is usually seen as one of the ways in which universities may achieve their goals of the furtherance of knowledge and learning, if we reconsider the way we think about copyright as a form of property, we can see that granting copyright protection over works created within the university may, somewhat paradoxically, also ensure fair and reasonable access to copyright works. If we see copyright more as a set of opportunities that may be shared within the university community rather than as an ‘all-or-nothing’ property concept,[4] many of the ‘problems’ posed by copyright may be overcome. In so doing, it may also assist in the restoration and continuance of the public domain.[5] Rather than seeing the grant of copyright over academic works as being antithetical to the idea of the public domain, ownership of copyright works may be used to ensure broad dissemination of works.
What is being argued, in effect, is that, despite what many commentators suggest, copyright does not necessarily have to act as a barrier to the goals of pursuit of knowledge and higher learning. If we think more creatively about copyright, copyright protection may serve the range of dynamic interests associated with the growth and sharing of knowledge which are at the core of a university’s mission. In order for this to occur, it is necessary to affirm the rights of creative academic staff to retain primary control over their copyright works. At the same time, it is also necessary to recognise that the sharing of knowledge is central to the success of universities and that copyright should not inhibit productive work.
There are a number of ways in which universities and academics may be able to regain control of copyright that is produced and used within the university sector. While many of these options may be complicated by disputes between management and unions (often caused by over-inflated views about the value of copyright works produced within the university) nevertheless, it is worthwhile examining some of the alternatives that focus on the dissemination of information and ideas, rather than the economics of copyright ownership.
One way in which universities may be able to assert control over the works generated within the university sector is to allow the current practice to continue, whereby academics retain ownership of the copyright in the works they create. This approach would obviously be supported by academics (and their unions) who see retention of their copyright as a basic academic right which they hold near and dear to them. As has been said, ‘to lose copyright in their writings would mean that academics would be likely to lose one of their few remaining sources of autonomy and fulfillment within the academy’.[6]
One problem with academic ownership of copyright, however, is that while many academics are currently allowed to retain copyright in the works they create, often the management of those rights does not guarantee optimal access to those works. In part this is because many of the copyright decisions made by academic staff often ignore complex nuances associated with copyright: either because copyright is not understood or it is seen purely in terms of the potential financial benefits that it may generate.[7] Another problem is that copyright is all too frequently assigned to publishers without the authors having reserved rights to future uses such as the incorporation of elements of a copyrighted work into his or her next work or the photocopying of the author’s journal article even for his or her own teaching and research. Given the pressure to publish, when faced with an option of assignment of copyright or non-publication, most academics will assign away their rights to the publisher. One of the consequences of this is that revenue from the sales of many academic works, notably research articles, often flows to third parties (such as publishers), much to the frustration of universities (and agencies which provide funding for works produced at the university). As a result of these practices, universities often then find themselves in the undesirable position of having to pay for the works created by their own academics, in the form of subscription fees, royalty payments, and other current and future costs.[8] This will become more and more apparent when considering the potential licence fees copyright owners are suggesting for digital copying of copyright works.
If academics were to retain copyright ownership of their works, they would need to be re-educated about the importance of the cost of copyright to the university in an attempt to persuade them to examine publishing contracts more carefully and to be less cavalier to assigning their rights to publishers. In many universities, information, discussion, involvement and support (through model language, contracts and licences; copyright advice; information about academic publishing and publishers) is needed to change current practices of academics with respect to copyright. Such programs would:
enable more thoughtful stewardship of academics’ intellectual property ... An informed author base is the first critical step in making transitions into the future, when entirely different means of handling copyrights may, indeed, prove desirable.[9]
Where academics retain copyright ownership, licences could be granted to publishers to publish the academics’ works on the condition that a licence is given back to the universities which allows for use of that work for educational purposes. This would surely result in a dramatic reduction in the current costs paid to copyright owners to access what is often the academic’s own work.
In order to ensure access to works at a reasonable cost, it would be helpful if the employing university entered into licence agreements with the creator which gives the university certain rights of use without obtaining permission from the copyright owner. Some of the rights of use could include:
• on a limited non-exclusive basis, the right of the author’s peers and students to make copies of the work to use in teaching scholarship and research
• the right to borrow portions of the work for use in compilations or other composite works
• the right to reproduce the work for uses directly relating to the advancement of the mission or maintaining the culture of the university.[10]
Another way in which universities may be able to regain control of copyright works used in the university context is for universities to claim ownership of copyright in works produced in the university. So long as universities managed their copyrights more equitably and efficiently works in which copyright subsists could be made more widely available.[11]
While university management has rarely claimed ownership over copyright in works produced within the university, the perceived increase in value of copyright may change current practices, if they have not been changed already. The costs associated with use of copyright works, which is expected to spiral with digital works, is perhaps a more important reason for change.
While initially this option would cause considerable concern to academics, if the underlying purpose of such ownership was to ensure greater access to academic works and at the same time reduce the huge costs currently associated with copyright, many academics may be persuaded to see the benefit of university ownership.
If universities were able to assert ownership over academic works created within their university, they would have increased bargaining power to ensure better rights for access and use within the university community. This may help to overcome the increasingly common problem many academics are faced with when attempting to negotiate with publishers over the assignment of copyright, whereby if they do not assign copyright, their work will not be published. For example, many publishers’ contracts now include an assignment of copyright, not only of the print version but also the electronic version of the work. Academics who are writing a second edition of an already published work are now being asked to assign copyright in the electronic version and attempts to negotiate the terms on which the work is published are often met with a ‘take it or leave it’ response from publishers. A single academic is in a weak bargaining position and has little chance of changing the standard-form publishing contract. This is particularly the case with academics who do not have an established reputation. However, universities negotiating together as a collective may have more of a chance of obtaining a balanced publishing contract that reflects the universities’ need for access to their academics’ works at reasonable costs. For example, universities could negotiate with copyright owners or their publishers to ensure a licence back arrangement for the provision of works for educational purposes within the university.[12]
Where a university owns copyright, the academic author of those works would be well advised to seek a licence agreement with the university which enables certain uses of the work without the need for obtaining permission from the university owner. An example of such rights might be:
• the right to make copies of the work to be used in teaching, scholarship and research
• the right to borrow portions of the work for use in compilations or other composite works
• the right to make derivative works, such as videotaped version, film scripts etc
• the right to alter the work, add to the work or to update the contents of the work
• the right of portability ie the right to take the work to, and use the work with, a new employer
• the right to use the copyright work for teaching scholarship or research by colleagues or students in one’s own department, on one’s own campus across the campuses of a larger university.[13]
While there are obvious benefits to university ownership of copyright works, it is not without its problems. One such problem is that the spectre of censorship is raised. Situations may arise, for example, where a university that owns copyright may decline to license a work, or may limit a licence, for reasons which are unrelated to the actual creation of the work. There have been instances where universities have suppressed publication of academics’ work where the university has seen the publication of the work to be detrimental to their goals or the work is considered to be controversial. Such possible restriction of academics’ right to free speech would obviously cause concern to all academics and their unions.[14] Other reasons for the restriction of publication may hinge on the need for privacy, confidentiality, or the protection of a competitive advantage.[15]
Another potential problem with university ownership of copyright arises from the fact that ownership carries with it certain responsibilities that may be seen to be unpopular, difficult and time consuming to administer. For example, if staff adhered to the principles of copyright ownership and sought permission whenever they updated, amended or reproduced works, it would result in a deluge of requests for permissions of copyright which would place unacceptable burdens on the administrative staff given the role of copyright management.[16]
Another potential problem posed by university ownership of copyright is caused by the constant movement of academics from institution to institution. For example, if a university owned copyright in course materials created by a particular academic, and the academic moved to another institution, the academic would have to obtain permission from the university to reproduce that material. The administration necessary to facilitate such approvals would be an unwelcome drain on university resources.
Academics and their unions would almost certainly oppose any action by universities to claim ownership of copyright in works created by them. Despite the grave concerns of academic staff and their unions, if universities were able to legally exert ownership over the works produced within the university, the cost of accessing those works would be reduced. This would ensure broader dissemination and exchange of ideas for the greater good of the education sector.
Where universities own copyright in academic works, they may see benefits in publishing the works themselves in an attempt to reduce the costs of copyright. The development of electronic environments for the collection and distribution of information may provide universities with an opportunity to develop alternatives to the current commercially dominated system of information creation, distribution and use. To this end, universities are currently exploring the feasibility of forming electronic text centres which would digitise available scholarly information and make it available to scholars over computer networks.[17]
The idea of the university as publisher is admittedly not a new one. However, in the present environment, it is certainly worth re-examining this as an option. Universities are already publishers of sorts. Many may not recognise the role they already have in publishing, ranging from the informal publications such as academic calendars, brochures, teaching materials, anthologies and soon to the formal publications such as monographs and journals. However, as has been noted, the:
history of universities in print-based publishing is patchy. The experience of university presses, in particular the closure of the ANU press and Sydney University Press, is significant. UQP and Melbourne University Press depend in varying degrees on direct subventions, philanthropic income, and campus book-shop sales to remain viable ... On the other hand Oxford and Cambridge University Presses, and several commercial publishers, have successfully published academic work in Australia.[18]
There may be legitimate concerns about universities moving into the role of publisher as their history in print publications has shown. It has also been suggested that academics may not produce electronic publications no matter how suitable their materials may be unless universities and their management recognise and support such moves in the hiring, promotion, tenure and research committees and research organisations.[19]
Another means by which control may be taken over the materials in which copyright subsists in the university context is for universities and academics to share copyright ownership in works created within the university. As has been suggested:
Ownership of copyright is not an all-or-nothing proposition. Rather the sets of rights that belongs to the owners of intellectual properties may be allocated so as to optimally support the mutual interests of the university, faculty, staff and students.[20]
The sharing of copyright ownership would have to be achieved through contractual means. Such contracts would have to be negotiated carefully to ensure a fair balance between the universities and the academic creator while maximising the access and dissemination of the copyright work.
Joint ownership of academic creations would again increase the bargaining power of individual academics and institutions alike. In so doing, it would enable academics and universities, when dealing with publishers to achieve a more balanced publishing arrangement, whereby copyright is retained and licenses are granted for the publication of the copyright material. It seems that publishers are not as adverse to licence arrangements as many may assume. For example, Reed-Elsevier, one of the biggest commercial publishers of scientific journals, has agreed it can work with licenses from authors, rather than demanding that they transfer full copyright.[21]
Whoever owns the rights, it is generally acknowledged that the creator of the materials should retain some benefits from the exploitation of the work. Hence academics should, as is presently the case, retain rights to royalties from copyright works created by them. Many academics see their royalties as a necessary adjunct to the somewhat meagre academic salaries. Universities, having paid little attention to copyright works, have in effect waived any rights to royalties through acquiescing to the current practice.[22]
In the current climate of change in respect of copyright, it is essential that academics and their university managers reach an agreement with respect to copyright that not only benefits the university in the short term (with respect to the much needed financial gain anticipated) but also reach agreement in relation to the broader and ultimately more important goal of the dissemination of information, knowledge and ideas.
While the reallocation of rights, discussed above, may not be the panacea that academics and university management are looking for, it is clear that new approaches to copyright ownership are needed. In this context it is particularly important to reconsider the way we think about the public and the private. If we consider the vast amount of money that is paid by the university sector to bodies such as CAL for the use of copyright works often produced within universities, we will see that for there to be a reasonable future for universities, a new approach needs to be taken. A more creative conceptualisation of copyright may help avoid the animosities and misunderstandings that often arise amidst discussions and debates over the ownership of copyright in the university context. Such debates should be steered away from the narrow question of ownership and the related economic issues of royalties and revenue sharing that unduly monopolise discussions about copyright and which serve to distract attention from what most would regard as more important: the pursuit of knowledge. While it may not provide a complete solution to the problems facing universities with respect to copyright, thinking creatively about the role and function of copyright may help improve access to the intellectual content of new works, which is an important part of the life of the university.[23]
[∗] LLB (Hons) (QIT), LLM (Lond). Senior Lecturer, Faculty of Law, QUT. My thanks go to Brad Sherman for his helpful comments on earlier drafts of this article.
[1] See A. Monotti, ‘Ownership of Copyright in Traditional Literary Works within Universities’ (1994) 22 Fed Law Review 340, 341.
[2] While universities accept that they ought to pay for access to certain categories of information, they argue that the level of payment ought to be realistic and also that it should not function as an inhibitor to access. ‘Some idea of the order of financial cost can be gained from the potential cost to Australian universities of possible additional fees under statutory copyright licences for use of materials in electronic reserve in university libraries, being originally print materials converted electronically for display on screen. In the case of University of NSW alone, the possible cost, accordingly to preliminary calculations on a particular basis, could well amount to $2,800,000 annually. What an expansion of copyright would cost over and above present fees is impossible to estimate. In addition to the costs already mentioned, the intellectual consequences to Australian of increased copyright protection are obvious. The more we pay for overseas materials, the less we will be able to afford with possible detrimental consequences for schools and university students. And this at a time when Australian universities, research and educational institutions, including libraries, are already facing the possibility of large reductions in government funding. Those reductions could affect Australia’s present capacity to generate the $2 billion overseas revenue which it presently generates from providing education for foreign students. Increased copyright royalties can only reinforce that unwelcome possibility.’ A. Mason, Reading the Future: Australian Library Week Oration [1997] 2 Ent L R 47, 51.
[3] See A. Monotti’s recent articles on this topic, for example, ‘Power to modify the Vesting of Copyright in an employer: Subsection 35(3) Copyright Act 1968 (Cth) and Australian Universities’ [1997] EIPR 715.
[4] ‘To optimise the availability of new works for teaching and scholarship, copyright should not be viewed as a simplistic claim of title but should instead be understood as a divisible bundle of rights that may be allocated among different parties to provide maximum opportunities for sharing and learning. Effective publication of articles, for example, does require a grant of rights to the publisher for reproduction and distribution, but publishers seldom need all rights of copyright ownership. ‘Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning, Consortium for Educational Technology for University Systems (C.E.T.U.S: 1997) 14.
[5] See Lynam Ray Patterson who suggests that the US Copyright Act orders the policy considerations of copyright as follows: ‘the promotion of learning (because the language so states), the preservation of the public domain (because after a limited time all writings go into the public domain), and the protection of the author (because to achieve the larger goals the author is given an exclusive right).’ : L. Ray Patterson and S. W Lindberg, The Nature of Copyright A Law of Users’ Rights, (University of Georgia Press: Athens and London, 1991) 49.
[6] Unsourced quote attributed to Margaret Thornton by D. Saunders, The Intellectual Property of Academics as Teachers, Scholars or Researchers’ (1993) 36 AUR 2 cited in Australian Copyright Council, Teachers and Researchers as Creators, 1997,1, 45.
[7] Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning, Consortium for Educational Technology for University Systems (C.E.T.U.S) 1997, 6-7.
[8] Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning, Consortium for Educational Technology for University Systems (C.E.T.U.S) 1997, 6-7.
[9] Report of the AAU Task Force on Intellectual Property Right in an Electronic Environment, 18 April 1994, http://www.nlc-bnc.ca/ifla/documents/infopol/copyright/intllpty.txt, 24.
[10] Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning, Consortium for Educational Technology for University Systems (C.E.T.U.S 1997), 22-23.
[11] The NTEU also supports a system where the parties mutually grant licenses to use intellectual property which they view as being consistent with the principle that ‘knowledge and ideas should be available…for the benefit of all’. See NTEU Model Intellectual Property Policy, 3, referred to in the Australian Copyright Council, Teacher and Academics as Creators, Bulletin 91, 1995.
[12] An approach taken in the US which may be worth consideration here is that explained by Kenneth Crews Director of the Copyright Management Centre Indiana University-Purdue University, the editor of the Indiana Law Review. The Review requires all authors of articles to assign copyright to the journal itself, he says ‘not to hoard them or to sell them, but instead to assure that they could be made as widely available as possible’....’We then made a contractual commitment to include the following statement in the Indiana Law Review itself:
‘Copyright 1995, the Trustees of Indiana University. Except as may be expressly provided elsewhere in this publication, permission is hereby granted to reproduce and distribute copies of individual works from this publication for non-profit educational purposes provided that copies are distributed at or below cost, and that the author, source and copyright notice are included on each copy. This permission is in addition to rights of reproduction granted under Sections 107,108 and other provisions of the US Copyright Act.’
The American Libraries Association has begun to include similar, although shorter, statements in many of its publications, including its books and the American Libraries Magazine. This ensures that the works are as widely disseminated as possible. See ‘Copyright and Libraries in 1995: Strengthening Owner’s Rights and a Proposal for Greater Access’, 3. A paper presented at the Annual General Meeting of the American Library Association, Chicago, Illionois, 24 June, 1995.
[13] Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning, Consortium for Educational Technology for University Systems (C.E.T.U.S) 1997.
[14] In their recent Code of Ethics the National Tertiary Education Union pointed out that the ‘principle of intellectual freedom is of central importance. Intellectual freedom is an individual and social good which is desirable both in itself and as a means of gaining and disseminating knowledge.’ National Tertiary Education Industry Union (NTEU) Code of Ethics Academics and General Staff in Higher Education, January 1998
[15] Whilst any such limitations are beyond the scope of copyright law, it would be strongly recommended that these possible limitations be disclosed during the agreement process. See Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning, Consortium for Educational Technology for University Systems (C.E.T.U.S) 1997, 22.
[16] see A. Monotti, Power to modify the Vesting of copyright in an employer: Subsection 35(3) Copyright Act 1968 (Cth) and Australian Universities’ [1997] EIPR 715, 716.
[17] For example see the ANU Network Information Forum No 1, Electronic Publication of the ANU’s Research and teaching output, 23 July 1996 and No 2, A Virtual University, 6 September 1996.
[18] Spearritt P and Thomas J, ‘Academic intellectual property in a new technological and industrial context’, (39, 1,1996) AUR, 29, 30.
[19] Barwell, G, ‘Electronic Publishing: A Measure of Success’, Key Issues in Australian Electronic Publishing, Collected Reports of Electronic Publishing Working Group, Australian Vice-Chancellors’ Committee (AV-CC), 1995 -1996 Canberra. This is a concern shared by the relevant unions. See National Tertiary Education Industry Union (NTEU) submission to the CLRC Discussion Paper, Copyright Reform: A Consideration of Rationales and Objectives, 2-3.
[20] Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning, Consortium for Educational Technology for University Systems (C.E.T.U.S) 1997, 4.
[21] Publish On-line or perish, 4 February 1998, The Australian, 40.
[22] The AV-CC seem not to have taken exception to the collection of royalties by academics who have stated that there are grounds to regard it as ‘a reasonable adjunct to salary’. See AVCC, Ownership of Intellectual Property in Universities: a discussion paper, AVCC, Canberra 1993, 25.
[23] See Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning, Consortium for Educational Technology for University Systems (C.E.T.U.S) 1997, 2.
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