Copyright and the University

Who owns the copyright in this Article? It turns out that this is a surprisingly difficult question to answer. I am the author-I wrote the words, I did the research, I collected and analyzed the data-but it is not clear that I am the "author" for copyright purposes and therefore the initial copyright owner. Under the common law, the "teacher exception" held that professors owned the fruits of their intellectual labor, notwithstanding the general rule that employers own the copyright in works created by their employees. Whether this exception survived the enactment of the 1976 Copyright Act, however, remains an unresolved question. Few courts have addressed the issue and Congress has not clarified matters. This Article instead looks for answers in current university practice. It presents the first empirical study of university copyright policies in over twenty years, which reveals two different-and contradictory-things. First, all of the copyright policies in the survey treat the faculty member as the owner of the copyright. In other words, the policies reflect the academic tradition of vesting copyright ownership with faculty members. But the study also shows that many universities seek to reserve for themselves copyright "authorship" and therefore the ultimate right to control ownership. This is contrary both to the Copyright Act and to the academic tradition that gives faculty members the rights in their work. University control over copyright in faculty works would threaten academic freedom and the utilitarian and expressive values that copyright protects. Informed by the study, the Article argues that answering the initial question-who owns the copyright in this article?-is not so difficult after all, at least as a practical matter. Given that nearly all universities treat faculty members as the owners of their creative works, and given that faculty members consistently act accordingly, the teacher exception persists. But as a legal matter, faculty control over their work will remain uncertain unless courts clarify and universities acknowledge that faculty are the copyright "authors" of their work.