Rights to Scholarly Work

For many years, Ohio State University -- like lots of peer institutions -- had an understanding with its faculty: the institution might claim intellectual property rights to innovations, inventions and patentable research, but scholarly works belonged to professors alone. Now a new draft intellectual property policy is threatening that agreement in the eyes of some faculty members. Ohio State says the policy is preliminary and the final document will result in no new limits on faculty property rights. But the ongoing debate and others like it elsewhere in recent years have implications for defining scholarly work in the digital age and for just how much of an academic’s work -- digital or not -- his or her institution can claim to own.

Earlier this month, an ad hoc, faculty-led committee charged with updating Ohio State’s 14-year-old intellectual property policy presented a draft to the Faculty Council. According to a copy obtained by Inside Higher Ed, “All rights, title and interests in intellectual property (I.P.) are the sole property of the university” if the faculty, staff or student creators were “acting within the scope of their employment,” using “funding, equipment or infrastructure provided by or through the university,” or carrying out the research at any university facility. (The language mimics state code on the matter.)

The draft policy says that faculty members and others “acknowledge that they are bound by this policy by accepting or continuing university employment or by using university resources or facilities and acknowledge and agree that they hereby irrevocably assign all rights, title and interests in such I.P. to the university.”

The document later clarifies that creators “own the scholarly and instructional works that they create at their own initiative without the substantial use of university resources, regardless of their form of expression” -- with some exceptions. Those include when the works were created under an outside contract naming the university the owner of the copyright, when a preexisting arrangement between the creator and the university says otherwise, and when works were specifically commissioned by the university.

Ulrich Heinz, a professor of physics at Ohio State and a member of the University Senate, said the policy’s biggest flaw lies in its failure to differentiate innovations from scholarly work up front. That the policy names the university as the default owner of all intellectual property -- and then grants some rights to scholarly work back to the creator -- is highly problematic, Heinz said.

“They start from the presumption -- which I think is completely wrong -- that all intellectual property is owned by the university,” Heinz said, “and from that premise, scholarly works such as books and other copyright are reassigned by the university to the faculty.”

Instead, he said, the policy should be “putting things into two different pots to begin with, to make sure that everything that has been true in the past remains true.”

Ohio State calls the argument largely academic, and promises that there will be no major changes to faculty intellectual property rights when the document in finalized (a new draft reflecting faculty feedback is expected next week).

Yael Vodovotz, a professor of food science and chair of the policy committee, was not immediately available for an interview, a university spokesman said. Vodovotz said via email that “Ohio State’s faculty are working together to bring the university's intellectual property policy into the 21st century. We are in the early stages of a lengthy process that is being driven by faculty and involves the participation of the entire campus community.”

She said that while the first draft had inspired “healthy debate” among faculty members, the “fundamental purpose of this policy update is to foster creativity and innovation in a way that retains faculty rights to intellectual property.”

But there are significant differences between the current draft and Ohio State’s existing policy on intellectual property, at least on paper.

Currently, Ohio State’s Policy on Patents and Copyrights requires that researchers report only inventions to the university, which may claim rights to products involving “significant use” of university facilities or resources. “Works of authorship,” such as most books, papers and artistic works, belong to their creators.

Heinz said he forwarded the draft policy to about a hundred constituents, and received “tens” of angry emails back. It’s rare for any document to elicit such a reaction, he said.

Within his department, Heinz also said he and his colleagues objected to the policy’s language on software -- specifically that it’s not scholarly work. Heinz said he regularly writes software through which to share research with peers, and that it’s an integral part of scholarship.

For research findings incorporating software, the draft policy says that the university will “grant rights to faculty, staff and students, or publishers as reasonably required” for them to publish such findings. That’s for “the purpose of supporting reasonable public access” to such findings, according to the document.

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” for various uses -- including to “modify and create derivatives.”

Records of investigations leading to theses and dissertations that were created using university resources would also be property of the university, under the draft.

Faculty, staff and students would also be required to report their intellectual products to a central administrator, in part to determine any potential commercial value, according to the draft. Where property is profitable, the creator and the university each will receive 50 percent of net proceeds, up to $100,000. Upward of that amount, the creator will receive one-third of proceeds, with the rest going to academic and others university units.

Ian Howat, an associate professor of earth sciences who specializes in glaciology, said he worried about how so broad a policy would impact projects involving substantial outside funding that come with their own distribution provisions. Howat said he receives large grants from the National Science Foundation and other federal agencies, for example, which tend to mandate that all findings be freely available to the scientific community within a few years.

Tracy Mitrano, a consultant on intellectual property and other matters and director of the internet policy and law program at Cornell University, said Ohio State’s policy doesn’t necessarily conflict with external grant directives. (Note: This sentence has been updated from a previous version to reflect Mitrano's current title at Cornell.) That's because the university owning the property doesn’t preclude it from sharing it with scholars, she said. But she called the policy overly broad at first glance. 

“It does look like the language needs to be more tightly tailored,” Mitrano said. She added, “This exercise that [Ohio State] is going through is not unfamiliar to what we’re seeing at other institutions.”

Mitrano said innovations such as massive open online course (MOOCs), which in some cases require institutional assistance in production, as well as online course curriculums and software, have raised new questions about which intellectual products belong to a university, which institutions are grappling to answer.

But Cary Nelson, a professor of English at the University of Illinois at Urbana-Champaign and chair of the committee that drafted the American Association of University Professors' 2014 report on intellectual property, called “Defending the Freedom to Innovate: Faculty Intellectual Property Rights After Stanford v. Roche,” said Ohio State’s approach was “particularly invasive.” (In the 2011 U.S. Supreme Court case Stanford v. Roche, the court ruled that the title to a patented invention lies first with the inventor, even when he or she is working in a federally funded research lab. Following that ruling, some colleges and universities revised their intellectual property policies to protect their claims to such property.)

Nelson said the Ohio State policy is unusual in its inclusion of copyrightable and instructional materials, and that it undermines what rights it does grant to faculty by allowing the institutions to revise or modify instructional materials.

“It is also highly unusual for the institution to reserve rights to materials created as part of confidential consulting,” he added via email. “I would expect some companies to look for a consultant at another school.”

Nelson also said the policy includes no clear guarantee of a right to negotiate over such matters as “how to market an invention or whether software should be open sourced or developed commercially.”

The “basic principle,” he said, “is that your academic freedom to decide how an invention or creation is disseminated doesn’t stop just because you invent something of value.” Nelson said that a faculty, for example, should collectively have the power to guarantee that lifesaving drugs or devices be marketed at cost in developing countries.

Mitrano said that up until last year, Cornell’s intellectual property policy included some “vague and ambiguous” language about ownership revolving around the term “encoded" -- giving rise to some of the concerns seen now at Ohio State. Cornell’s revised policy now guarantees professors rights to scholarly work such as syllabuses, course files and software that were not explicit in the old version and otherwise comports with "highly regarded" policies. In another example of what she called a sound policy, Mitrano also pointed to the University of Michigan, which she said sets an “expectation of negotiation” of rights to intellectual property, depending on the institution’s level of investment in the product.