. "5 Legal Issues in Production, Dissemination, and Use." Electronic Scientific, Technical, and Medical Journal Publishing and Its Implications: Proceedings of a Symposium. Washington, DC: The National Academies Press, 2004.
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Electronic Scientific, Technical, and Medical Journal Publishing and its Implications: Proceedings of a Symposium
not protect ideas or facts, such as genome sequences. It only protects the article that describes or expresses the results and analysis of that information, but not the information itself.
With respect to the exclusive rights that copyright confers on the copyright owner, those include the right to reproduce the work in any medium, including digital; the right to make what the law calls a derivative work, that is, the right to adapt the work, including updating the work or making further works based on the first work; the right to distribute the work in copies, including digital copies; and a right that is becoming of increasing importance on the Internet, the right to publicly display the work. When you see the work on your computer screen that you are viewing from a Web site, that is a public display of the work, and the rights of the copyright owner may be implicated thereby.
It may come as a surprise to a lot of people that copyright does not grant a right of attribution in the United States. There is nothing in our copyright law, unlike the copyright laws of many other countries, that gives the author the right to be recognized as the author, that gives the author name credit. This is a great failing of U.S. copyright law. To the extent that authors enjoy this right, they enjoy it either by contract with those who publish their work, or possibly as the result of other laws, but not the copyright law. While the research and academic communities respect a right of attribution in practice, such a general right does not exist under American law.
The exclusive rights under copyright also are not absolute. There is the well-known fair-use doctrine, which derogates from the exclusive rights. Copyright is limited in time as well. The term of copyright in the United States is now the life of the author plus 70 years. That is a very long time, and it is the same term in the European Union.
Ownership of Copyright
Copyright ownership vests in the author of the work. That makes a lot of sense until one finds out that according to the copyright statute, the employer of a work for hire is considered to be the statutory author. What is a work for hire? For present purposes, a work for hire is one prepared by an employee within the scope of his or her employment. That sounds bad to most academics, since it might follow that everything they write belongs to the university, at least if you apply the statute's terms literally.
In fact, there has been a long tradition predating the 1976 Copyright Act under which professors own the copyrights in what they write—their articles, books, lectures, and teaching materials. There is no indication that Congress ever meant to change that tradition in the 1976 Act. It just wrote an all-purpose provision on employee authorship transferring authorial status, as well as all copyright rights, to the employer. The question has not been settled under the current Copyright Act, whether the rule is what the statute says or whether the long-standing practice remains valid. Two appellate judges in the 7th Circuit, which sits in Chicago, have suggested that surely Congress did not intend to disturb this longstanding practice and understanding. At the same time, one has to acknowledge that the two judges who said that are Judges Posner and Easterbrook, both of whom have been very prolific professors, as well as judges, so their statements may not have been devoid of self-interest.
As a practical matter, the question of professorial or academic copyright ownership did not even come up, apart from these speculations about the text of the 1976 Act, until relatively recently, probably because most academic copyrights, as opposed to patents, were not worth much. Although universities have had patent ownership policies for a long time, most universities, until recently, have not had any kind of policy on copyright ownership.
That has changed in the past few years, in part because of the rising importance of software. Software is protected by copyright, and it is worth something. So, some universities thought that perhaps they should lay claim to software—not only software written by staff, but also software written by professors. Universities traditionally had distinguished between works by administrators or staff on the one hand, which were works for hire, and works by professors, which were not works for hire. Nevertheless, some universities began to lay claim to software produced by their professors.
Another thing that changed was the continuing escalation of journal subscription prices. Some universities thought that perhaps if they owned the copyrights, rather than the actual creators owning the copyrights, they could bargain better with the publishers. That was perhaps more speculation than actual practice.
Finally, the most recently flurry of copyright ownership policies was precipitated by distance education on the Internet. Before the dot-com bust, a lot of universities began to get stars in their eyes