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Tuesday, March 27, 2007

The Place of Artists' Endeavors in a University

One of the unexpected joys of service to the university is that I get to attend meetings of the "XYZ" committee, which addresses various issues of significance to quality and governance standards across the university. Recently, a particularly fascinating question arose, but I'll leave the names of the players out, since I'm more interested in thinking about this issue in the abstract and seeing where the different arguments go.

Here's the question: should graduate students in a research university get to sequester or limit access to their dissertations so they can privately reap the benefits of future publication with a for-profit publisher? Those of you enjoying the discussion Bruce led last week regarding SwapNotes might want to weigh in.

In the sciences context, my sense is that issues over patents are worked out ex ante through contract and universities are obligated to share the fruits of research especially when such research is funded with public money. Thus, graduate students working in university labs probably have to share patents' revenue with the university but practices may vary by agreement. In the social sciences and humanities, professors tend to enjoy the "teacher" exception to copyright's work for hire doctrine that Bruce and Michael Froomkin talk about in the comments to Bruce's post. My sense is that such an exception enjoys an uncertain status in law today, but that express contracts between faculty and universities would govern the issue, and that copyright for those works is not a property right invariably enjoyed by faculty, though in the absence of an asserted right by the university, it probably belongs to the professors. (I checked with Bruce and his sense was that as a matter of practice copyright tends to belong to the professors, but the law was a bit unclear. There may be an implied license for the university in the absence of a contractual provision to the contrary.)

So what's the deal with graduate (or less relevantly, undergraduate) students? The tough issue arises when universities say: we want a digital copy of that dissertation so the fruits of your state-subsidized research can be shared with the world. In that situation, the university might be impinging on the ability of graduate students to sign contracts with commercial publishers, who want exclusive distribution rights and would view the publication of a novel to be pretty worthless as an investment if it's substantially available online via google and a library's electronic database.

Thinking this through: Graduate students might not enjoy the "teacher exemption" to the work for hire doctrine if graduate students are paid employees of the university because they are not yet full-fledged "teachers." On the other hand, unlike professors, grad students are often paid principally to teach, not to research. This is pretty tricky, since it would suggest that grad students should then benefit from a "teacher" exception...

My sense is that in the absence of a contractual provision to the contrary, students will own the copyright in their works, even if they are also employed by the university or if they are producing such a work for credit.
In most cases graduate students have not signed away their copyright interests to the school, though I wouldn't be surprised if public universities (and for the purpose of this post I'm interested only in public universities) do give notice to graduate students that a dissertation must be archived at the university's library. If they do give such notice, that might create an implied license and the question is what is the scope of that license, and what ought it to be? Depending on the context, students might have already agreed to that in the particular context of university handbooks that tell students they must lodge copies of their work with the library for purpose of graduation.

The concern raised above about publishers seeking more rights is especially salient for students graduating with advanced degrees from creative arts programs, where their dissertation actually is the production of creative writing, music, or art. One major concern of imposing a library's right to reproduce the dissertation electronically is a collective action issue: if one school insists that the library of that school creates and makes available a digital file of poetry or a novel, then students will go to schools where that requirement doesn't exist. Unless all the creative arts programs abided by the same rule, students would be drawn to places where they can ply their craft in subsidized domains but then reap all the private benefits.

Why might universities seek such digital reproduction rights? Perhaps out of fidelity to the idea that if the state's taxpayers are subsidizing the research, they and the scholarly community should enjoy (free? easy? immediate?) access to that research when submitted as part of a PhD or Master's degree. Of course, in the case of students in the performing or creative arts, the dissertations are not exactly "research." Thus, to save the creative arts students from this otherwise plausibly reasonable practice of promulgating knowledge, one might try (however perilously and controversially) to distinguish between departments whose dissertations are "knowledge" and those whose departments are not in the business of producing conventional knowledge, but rather "arts." Thus, English PhD's about Shakespeare would be promulgated, but if Shakespeare himself is in your creative writing department, then he can sequester his dissertation until it's been published. The downside of such a rule is that it also hurts those budding Shakespeare scholars trying to get Norton or FSG (or HUP/CUP/OUP) to publish their books too. Is this distinction tenable? Desirable? If it is both tenable and desirable, does it say anything about what universities should be in the business of cultivating or producing?

Finally, here's a possible problem: if public universities don't assert any dissemination norms beyond lodging a paper copy of the dissertation with the university library, what rights or interests can/ought the taxpayers assert if Billy Shakespeare decides to burn his dissertation, after lodging his one paper copy in the archive of the library? Do the taxpayers have any legitimate interests then? Or is it too bad, so sad? Maybe Lior will weigh in...

Much of this back and forth can be resolved, I suspect, if there are clear expectations enunciated at the outset by the university. My own sense, probably, is that if the university didn't articulate its interests clearly, then at least in the interim silence, the students should be able to effectively sequester their works until publication (by allowing only a paper copy in the library). Going forward, I'd probably say that everyone must lodge digital reproductions, but the "arts" students can sequester public access for ten years upon graduation; but after that, the university can publish its digital files in its database for Google to pillage. For departments in the business of "knowledge" production in the form of articles, I'd say a policy of no sequestering is appropriate to allow for immediate dissemination. I'd prefer to have no sequestering as the rule in all non-arts disciplines to facilitate dissemination, but I'm aware that some university presses won't publish books that are drawn dominantly from sources already available. (Hence, the problem with the scholars who are expected to publish their dissertation in book form, rather than in articles.) What do you think should be done? Should public universities be able to assert any rights or interests in the works of their students?

Posted by Dan Markel on March 27, 2007 at 01:40 PM in Dan Markel, Deliberation and voices, Information and Technology, Intellectual Property, Life of Law Schools | Permalink

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This is a fascinating issue and one that I'm not sure has received much attention in the "public access to scholarship" discussions.

I think it's important not to subject grad students to a Catch-22 here. You don't want to essentially require a book for tenure, while simultaneously undermining the ability of grad students to turn their dissertations into their first book. Either the tenure standard should be relaxed or distribution of the dissertation should be limited. The latter strikes me as the less problematic of the two, at least for now.

One clarification: there's a distinction here between ownership and rights to use. I.e., the "teacher exemption" is an exemption (if it exists) to the work-for-hire doctrine, which states that "the employer or other person for whom the work was prepared is considered the author for purposes of" copyright law "unless the parties have expressly agreed otherwise in a written instrument signed by them." That's different from the question of what a NON-author can do with the material, which might be determined by a license, either express or implied. I think it's clear that your typical grad student owns his or her dissertation; the real question is what right the university might have to reproduce or distribute it.

The old practice is to simply take a physical copy given to the university by the Ph.D. candidate and plop it in the library somewhere. That doesn't really affect any rights of the copyright owner. But placing "a copy" online is different. Not only does it implicate the reproduction and distribution rights, but it also might undermine the market for a printed publication in a way that mere existence in a library does not. I don't think a time-limited sequester will help much, either, because publishers will be more reluctant to publish a book where the exclusive rights only last 10 years or so, making book contracts that much harder to get.

Posted by: Bruce Boyden | Mar 27, 2007 5:24:55 PM

As I see it, there are 3 issues involved here: ownership, employment, and return on investment.

Ownership: Your thinking seems to imply that work done "on Uncle Sam's dime" is therefore owned by Uncle Sam. In other words, because tax money subsidizes the creator, the works are owned by the public. However, when you step outside of the academic sphere, there are numerous examples of projects in which government money subsidizes work which is considered to be wholey the property of the creator. Subsidies (including tax breaks and grants) to bio-engineering companies and NEA grants immediately spring to mind. Nobody questions the ownership of the products of these programs, so why should subsidized work done under the umbrella of a university be held to a different standard?

Employment: You use the concept of work-for-hire as a justification for universities laying claim to the works of students--even implying that it is implicit in the university/student relationship. However, it should be noted that students (unlike some professors) are not hired to produce work for the benefit of the university. The economics actually flow in the opposite direction--students pay the university for the priviledge of being taught. It is true that, in many cases--especially with graduate students--the students' fees are waived and some stipend is paid to them, but that is simply the university accepting labor as payment in place of money. The labor provided is almost always in the form of TA duties (with the exception noted below). If a literature student (for example) were given tuition waivers and stipends in exchange for the production of a novel each year, then the work-for-hire stipulation could reasonably be implied. That, however, is not the case. The literature student is being paid to teach classes. Unless the admissions contract explicitly states that all works (and/or rights thereof) produced while the student is enrolled in the university are the property of the university, the default status of ownership should fall to the creator.

Return on Investment: Your distinction between arts and sciences is important, but I would suggest that it's for a different reason than your comments seem to suggest. Your implication is that scientific advancements made under the auspices of a university are somehow inherently different than artistic advancements made under the same conditions. This places an artificial (and difficult to enforce) status of value on each of the categories. And what of those advancements that bridge the gap? Is a software program which more accurately represents skin textures in CGI a scientific advancement or an artistic one? What about a chemical formula for a pottery glaze? Would the same discovery be treated differently when created by a scientist and an artist?

The reason that most scientific advancements made by graduate students should be treated as work-for-hire, while artistic advancements should not, lies in the process, not the product. Graduate students in the sciences are typically given tuition waivers and grants based on the fact that they will be doing research on behalf of the university (often in addition to their work as TAs). The distinction here is that the *university* is doing the research, and the students are "hired" to work on the project. The materials, tools, environment, and funding are provided by the university. The same can not be said of the arts; the university isn't writing a novel and hiring students to do the work.

If a physics student, for example, were to research and write on a new theory outside of his duties in the lab, it should be assumed that this research is outside the bounds of his "employment", and all rights thereto should fall to him by default.

This being said, it is entirely reasonable for the university to be given archival rights by default--allowing students and faculty to access copies of the work for the purposes of research, teaching, and other fair-use applications, while leaving the publication and distribution rights with the creator. It is, however, quite unreasonable to allow a university to benefit from the hard work of individuals who just happen to be attending classes at the time the work is produced.

Despite what some academics may think, students are not property, and universities do not own the products of the students' labors.

Posted by: Blaze Miskulin | Mar 27, 2007 9:19:17 PM

My hope is that the academy would work out some standard here whereby the student is required to grant to the university a transferable, nonexclusive, royalty-free license to reproduce the work, in part or in whole. I think in the academy we especially want to assure that various works can quote from and build upon one another.

I don't like the Bayh-Dole/technology transfer analogy. I think that regime can promote real technological progress. To transplant it into the cultural sphere is to map an inappopriate concept of scientific and technological progress onto culture.

There is an old book entitled "Who Owns Academic Work" (by McSherry?) which gets at some of these issues. And The Chron of Higher Ed. has focused on the terrible situation facing many digital scholars when they try to clear rights for things they want to include or comment on in digitized dissertations.

Posted by: Frank | Mar 27, 2007 11:04:23 PM

Thanks for all these thoughts.
Bruce,
Let me clarify: I was suggesting that the sequester be good for 10 years, but that if publication hadn’t been secured to occur during that 10 year period, digital access to the material in the library’s database seemed appropriate. Thus, if you secured publication within the ten year window, then the digital access to the material could be shut off permanently, so book contracts would still be available and attractive.
Blaze,
I’m not suggesting that all work done on Uncle Sam’s dime should fall into the public domain; I was making a more limited claim about knowledge produced in universities through state subsidies (whether federal or state). There’s a dissemination ethos important if not unique to the academy that has some special significance. That said, the fact that the dissemination ethos doesn’t pervade gov’t sponsored work outside the academy is not a sufficient reason against such an ethos. You’re conflating the is and the ought. The suggestion that nobody is questioning it is actually inaccurate; some scholars are calling for more public access to information that is even proprietary now: see, e.g., Jerome Reichman’s calls for public supervision of drug trial studies. You can bet that if access rights are being argued for in the context of “privately funded” information now that some people think publicly funded information generation should also be subject to access. NEA grants, btw, are probably not extended to artists who would preclude access to their work; moreover, my general inclination was to gesture at the dissemination norm affecting access to knowledge, not the arts.
Your claim about employment is a bit misplaced. I was pointing out the arguments that parties might make in different directions, but I wasn’t committing myself to a claim that universities could justify laying claim to the work of students under the work for hire doctrine. I do think universities could try to obligate students to confer their copyrights to the university by contract, but I didn’t suggest that such a claim could be made in the absence of a contract. As Bruce points out, the issue is whether there’s a license to make public that knowledge produced in the form of a dissertation; that license is one that many schools may claim as part of the requirements they announce to their students when they enroll. But we do agree on this point that you wrote: “Unless the admissions contract explicitly states that all works (and/or rights thereof) produced while the student is enrolled in the university are the property of the university, the default status of ownership should fall to the creator.” The question of ownership is distinct from what the university might claim as an express or implied license.
Last, I don’t want the distinction I made to be understood as between arts and sciences: rather, it’s more accurate to say the distinction is between the creative arts (literature, music composition, poetry, pottery, film, sculpture, etc.) and the rest of disciplines which are trying to create knowledge about the world. That said, how to implement that distinction may be difficult but not impossible. If a dissertation in computer science is a software program like the one you mention, it strikes me that it is something that someone can say helps us know that X is how to achieve Y result. Instrumental knowledge is one form of knowledge; the same would be true of the chemical formula for a pottery glaze. A harder situation is a documentary film made at the film school that involves original research about its subject. I’m not sure your product-process distinction is doing a lot of work. Someone writing historical fiction may be engaged in the same process as someone producing a work of literary scholarship: they both read books and write about them, but one is knowledge and the other is, on this somewhat narrow and more controversial definition, not.
Your comment that “Despite what some academics may think, students are not property, and universities do not own the products of the students' labors” seems hostile, but I can’t tell to whom it’s addressed. It’s not what I think nor does anyone else I know in the academy hold those views.
Frank, I think we share much of the dissimenation instincts; fwiw,
I wasn’t intending to use the tech transfer analogy in any robust manner. I was simply suggesting that we, outside the sciences, have to think more clearly about what should be done, and the sciences have been giving more attention to this issue, in large part because more money is at stake…As always, thanks for the helpful references.

Posted by: Dan Markel | Mar 28, 2007 7:08:12 PM

Dan,

When I engage in discussions such as this one, I tend to slip into (somewhat appropriately, here) "lawyer mode". I pick a side and defend it for all it's worth. The actual situation is, of course, quite complicated. However, from both an ethical and moral standpoint, it is my strong opinion that rights to any work not specifically--and explicitly--listed as work-for-hire should reside with the creator by default. Only by explicit permission should those works be used or distributed. On the other hand, the concept of "open source"--a foundation of the scientific (and now software) community--should be actively and aggressively encouraged. We should teach our students to share their discoveries, not take the discoveries from them.

My comment about "some academics" wasn't directed at anyone in particular, but rather a reaction to instances I have witnessed (and dealt with) over the last 2 decades of dealing with academic institutions--from colleges down to primary schools--in a professional aspect.

In a somewhat tangential situation, Ars Technica had an article today ( http://arstechnica.com/news.ars/post/20070330-high-schoolers-turn-in-plagiarism-screeners-for-copyright-infringement.html )about 4 high school students who are suing over the copyrights to their term papers. This case differs in that it involves a for-profit third party, but the fundamental question of who owns the rights to an academic work is quite similar. This case may set a precedent which will impact how universities deal with the issue of intellectual property.

As someone who has spent the greater part of the last 20 years being an employee of academic institutions, and who is looking to return to academia, once again, as a student, this is an issue that holds a rather unique significance for me.

Posted by: Blaze Miskulin | Mar 30, 2007 8:35:22 PM

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