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?