Colin Ramsey and Martha McCaughey are the authors of “Copyright for Academics in the Digital Age,” the lead feature article in the new issue of Academe. Their article discusses the potential copyright problems that can arise for faculty and staff, what rights faculty have, and how best to protect those rights and ensure access to scholarly work. I spoke to them by e-mail about their article. My questions and their answers are printed below.

At one point in the article you write that copyright, in the hands of commercial publishers of academic articles, sometimes restricts the flow of scholarly information. Is this an inevitable result of copyright?

It is not inevitable.  In fact, copyright can help enhance the flow of scholarly information, so long as faculty authors remember that they are, typically, the initial owner of copyright for their works, and that they should not sign away those rights without insisting on accessibility.  This message, we think, is beginning to get through to publishers.  For instance, one of the world’s largest scholarly societies, the Modern Language Association, announced this past June that they are changing the copyright policy for their journal, the PMLA, and for other works published under their imprimatur.  MLA will now allow faculty to deposit copies of their works into digital institutional repositories that are specifically designed for open access.  People can read more about MLA’s shift at the society’s website and in a recent article in Inside Higher Ed.

What should academics bear in mind when they publish their research to help avoid these dangers?

It’s important for faculty to remember that they have the power to negotiate the contracts issued by publishers. Given institutional pressures to publish quickly and always advancing timelines for tenure and promotion, it’s understandable that faculty-authors often don’t pay attention to the copyright transfer components of their publication contracts. Nevertheless, we suggest that academics read those contracts with care, paying particular attention to who will own the copyright to the work once it’s published.  Should any copyright transfer unduly restrict future accessibility, we think authors should at least enquire about the possibility of modifying such terms before signing.  Of course, the publisher may reply, “nope, take it as it is, or publish the work with somebody else,” but if authors continue to ask, and if more and more academics demonstrate preference for working with publishers that allow open access, we think even the big for-profit academic publishers will begin to shift their copyright policies.  Similarly, many U.S. federal granting agencies are now requiring that research conducted with their support be published with specific provision for open access. We believe this will also help move academic publishers in the right direction, given how much research is conducted with the financial support of the federal government, particularly in the sciences.

Are there any universities that have are especially good policies on faculty ownership of copyright for instructional materials? 

One we like is UC Berkeley’s recently revised policy on “Course Note-Taking and Materials,” which can be found under the above title here.  While at least a couple of academic bloggers have taken issue with the policy (see, here and here), we think the policy is in keeping with the academic goals of college and university teaching. Indeed, in so far as the policy makes explicit mention of online subscription note-bank services, we think it helps protect academic integrity in the digital age.

You mention faculty who create online courses as “works for hire” under specific contracts. What type of language might be a red flag for faculty who wish to create such courses without giving up their ability to use their own lectures, slide presentations, or other teaching materials again in future courses?

It makes sense that the university would want to have some additional control over an online course that the institution has paid a faculty member extra money to create. After all, if the faculty member takes a job at another institution, the university would likely wish to assign the course to another instructor.  Thus contract language that authorizes the university to re-use the teaching material a faculty member created as a “work-for-hire” is reasonable. But even if the university owns the rights to the material created under a work-for-hire contract, it need not retain exclusive rights or restrict absolutely the faculty/creator’s rights to use such materials in other contexts.

One of us recently developed an online course as a work for hire, and the contract language illustrates how overly broad such contracts can be.  Examples include, “no party other than the University shall have any rights, titles or interests in the Work,” and “Author hereby assigns, grants and delivers, and upon creation of the Work automatically assigns, grants and delivers, without further consideration, exclusively to University, all rights, titles and interests of every kind and nature whatsoever in and to the Work, and all copies, versions, and derivatives thereof. . . .”

Precisely because a professor might also like to use the course content s/he created in the future—in a textbook or in another course, for example—contract language like this is obviously far too broad, at least if the faculty member ever hopes to use any part of the course she/he created ever again.

How can faculty members, IT staff, and administrators improve problematic “works for hire” language that assigns too much control to institutions?

If you are a faculty member, so that you can re-use, say, the slide shows or charts you created when you taught an online course as a work-for-hire, you should be sure the contract does not prohibit you from using the material again in your own teaching or scholarly work even while it gives the university the right to continue using what you created, allowing another faculty member the right to modify it when they are teaching the course, for instance.  

If a faculty member sees contract language that is too broad, she/he can suggest changes to the contract language.  Of course, the university might refuse to accept the changes, but such a response might at least trigger a review of whatever “boiler-plate” copyright language the institution has developed for “works-for-hire” course contracts, and therefore lead to better language being developed for future use.

If you are a university administrator, be sure the contracts you offer faculty members for “works-for-hire” courses keep these issues in view. After all, administrators and IT staff members do not want to be loaded down with time-consuming requests from professors seeking permission to re-use every slide, spreadsheet, drawing, or quiz question to which the university owns the copyright under “work-for-hire” contracts.  It would be better for the contracts to provide that the university’s ownership of the material is non-exclusive, at least in some ways, to allow the original instructor/creator to use the materials in ways commonly recognized in academia, such as in a future but different course, or in research and publications.

Read “Copyright for Academics in the Digital Age” online.