Nick Carbone just posted this Inside Higher Ed story to various mailing lists, “University as Author?” which is about a pending case before the Kansas Supreme Court which might decide that the Kansas Board of Regents can declare that it “owns” all of the rights to the intellectual property of faculty teaching at public colleges.
Of course, what the Board of Regents is really going for is a piece of the action for technologies developed in the laboratories at Kansas universities. There’s not a lot of money to be made by most English professor-types. But there might be some implications to the Board’s/University’s grab at all this Intellectual property for the likes of me:
Ann Springer, associate counsel for the American Association of University Professors, which filed a brief on the dispute, said that if colleges own their professorsâ€™ works, then they are also responsible for the content. â€œThey would have to review everything that is written,â€� she said, adding that if the university were considered responsible for content, it might seek to contain controversial content. â€œI donâ€™t think [the University of] Colorado wants to be responsible for all of Ward Churchillâ€™s writing, but they would be.â€� She added that faculty members would have far less incentive to innovate if the institution could claim full ownership of their work.
I do think that the Board/University is entitled to some portion of IP rights, especially for IP that is developed largely with the support of the University and IP that is developed by a faculty members as part of his or her job. But I don’t think they ought to get all of it. And if this decision were to be upheld, I think you would see a chilling of innovation, and/or some interesting wranglings by professors to protect their rights.
For example, if I write an academic book (or textbook or a novel or a musical or whatever), if I receive some sort of release from the institution to complete that book, and if that book “counts” in the process of tenure and review, then I am okay with the institution claiming at least a portion of that IP. Not all of it, but some of it, probably negotiated in some process (at EMU, that would probably be a union issue). On the other hand, if I write a book with no support from the institution and if it doesn’t count as “intellectual work” in the tenure and review process (btw, in my department, a textbook does indeed count as a “book”), then I don’t think I owe the institution a dime.
Maybe the smart thing for these professors in Kansas to do (and who knows, it might be the rest of us sooner than later) would be to carefully construct a very specific and legally defined “life” outside of the institution. As I understand it, there are plenty of academics (particularly in fields like business, law, medicine, but also in areas like education, journalism, and public relations) who maintain a “private practice” or a “consulting” business while being a professor. Framed as that sort of arrangement, perhaps faculty-types would have a better chance of holding on to the IP that is really theirs and theirs alone.