Ohio State University is internally circulating a draft of a new policy on faculty intellectual property rights.
The following summary of the main outlines of the lengthy and very detailed draft revision was published in an article in the Columbus Dispatch:
“The proposal says that all intellectual property created by faculty, staff and students belongs to Ohio State if it was made under any of these criteria: under the scope of OSU employment; using university infrastructure, money or equipment; or in a university research laboratory.
“Ohio State could limit outside consulting work by employees if the university decides it has a right to the resulting work. The proposal lets the university ‘retain, use, and distribute’ academic work created by students, such as dissertations. Faculty, staff and students would have to report their intellectual property to the university to see whether it could be commercialized.
“If Ohio State decides it has the right to intellectual property, the university can claim half of all income from it up to $100,000. Above that, the university and departments could claim 66 percent. The creators would split the remainder.
“The draft proposal does say that ‘scholarly works’––books or anything else that can be copyrighted––belong solely to their creators in certain cases [my italics].”
Moreover, “as it stands, the draft could require professors to turn over online courses, if asked; and Ohio State could use, change, or distribute the classes [as it wishes].”
Members of the group that produced the draft have asserted that the growing controversy surrounding the revised policy “is largely based on a misunderstanding”:
“’The university already has a legal right to scholarly works but traditionally has not exercised it,’ said Yael Vodovotz, a professor of food science and technology and leader of the group.
“’The truth of the matter is that the university does own all that, but it gives it to the faculty,’ she said. ‘Maybe we should have started with, “You have it all because the university gave it to you.” ’ ”
I would argue that who “gave” whom what is a straw-man issue. Outside of commercialized research in the STEM disciplines and related fields such as medicine, American universities have almost universally accepted that the intellectual work produced by faculty was the property of the faculty. But now the increasing corporatization of higher education and, in particular, the commercialization of online education have caused many universities to press for dramatic changes in long-established practices and for the extension of policies on patent income into all disciplines, even in the humanities and social sciences. Worse, many institutions don’t wish to negotiate any split in the revenue generated by much of that work.
In all of the many decades before the advent of online education, one would be hard-pressed to find many instances in which the materials that a faculty member developed for classroom presentation were ever claimed by a university administration as the property of the institution. So, the increasing attempts to assert that claim are being driven by the recognition that the materials suddenly have some potential commercial value. But, instead, of negotiating with the faculty to compensate them for the right to use their intellectual property, many institutions simply want to claim ownership of that property. This is the case at Ohio State where the policy revision under review contains the following sentence about online course materials:
“F. All instructional works, including those transferred to individual faculty, staff, or student authors, are subject to a perpetual, nonexclusive, royalty-free license from the creator to the university to use, duplicate, perform, reproduce, modify, distribute, and create derivatives of the instructional work for any pedagogical, research, educational, or administrative purpose of the university, subject to attribution of original authorship and to internal academic procedures and requirements of the department and school of origin of the instructional work. Creators agree to provide university copies of instructional works upon request. The foregoing license will be broadly construed to enable the university’s efforts to carry out course equivalency assessments for transfer purposes, accreditation agency reviews, and other functions that allow the university to fulfill its responsibilities for accountability; preserve research integrity; and prevent fabrication, falsification, and plagiarism. To foster innovation and promote university instructional products, faculty and staff are encouraged to select educational products offered by university units and departments.”
The article in the Columbus Dispatch includes the following comment by Rudy Fichtenbaum, the President of AAUP: “Our view is that anything that faculty members create, even if it involves a substantial use of university resources, should be under the control of the faculty.” It is a simple and straightforward statement of what should be the fundamental, underlying goal in the creation of such policies.
Tenured faculty fret about creating any institutional incentives for hiring fewer tenure-eligible faculty, fewer full-time faculty more generally, whether they tenure-eligible or not, and more and more part-time faculty. But, in its basic outlines, this sort of policy is just another step in reducing even tenured faculty to “independent contractors”—in reducing the rights of tenured faculty until they enjoy no more rights than part-time contingent faculty, who essentially have no meaningful rights whatsoever. So, it may not ultimately be the case that most tenured faculty will be replaced by part-time faculty; rather, to all intents and purposes, tenured faculty may simply be reduced to contingency in just about every respect but our titles. I am guessing that they will probably let us keep our titles, at least until there is no more reason to maintain even that pretense of respecting the profession.