Intellectual Property, Fair Use, and the Unbundling of Ownership Rights

AS-2605-03/AA/FA - March 6-7, 2003

ATTACHMENT TO AS-2605-03/AA/FA (.pdf)

RESOLVED: That the Academic Senate of the California State University (CSU) commend the Task Force on Intellectual Property for producing such a comprehensive review of the law, together with the legal precedents, surrounding intellectual property and fair use for faculty, students, staff and the administration; and be it further

RESOLVED: That the Academic Senate CSU endorse the document Intellectual Property, Fair Use, and the Unbundling of Ownership Rights produced by the CSU Task Force on Intellectual Property; and be it further

RESOLVED: That the Academic Senate CSU recommend that the document Intellectual Property, Fair Use, and the Unbundling of Ownership Rights be published by the CSU and be widely distributed via print, electronic and web-based means to faculty, students, staff and the administration; and be it further

RESOLVED: That the Academic Senate CSU urge campuses to conduct workshops using the document Intellectual Property, Fair Use, and the Unbundling of Ownership Rights to educate faculty, students, staff and the administration about the legal issues surrounding intellectual property and fair use; and be it further

RESOLVED: That the Academic Senate CSU urge campuses to use the document Intellectual Property, Fair Use, and the Unbundling of Ownership Rights when revising policies on ownership of intellectual property.

RATIONALE: : In 2001, the Executive Committee of the Academic Senate of the California State University (CSU) created a Task Force on Intellectual Property to review local campus and systemwide policies in the subject area of intellectual property in light of the work done in the early and mid-1990s by the CSU-SUNY-CUNY Work Group on Ownership, Legal Rights of Use and Fair Use. The Task Force also was charged to consider the implications of recent legislation and judicial decisions, new technologies, and the wider use of electronic technologies as they apply to the ownership of intellectual property. Finally, the Executive Committee charged the Task Force to review and update as necessary the publications Fair Use of Copyrighted Works: A Crucial Element in Educating America (1995) and Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning (1997), and specifically to:

• Address the issue of author's rights in light of new technologies and the current legal context.



• Address the issue of multiple authors' rights, including situations in which one or more students are involved in the creation of intellectual property.



• Address ownership issues regarding classroom materials created in electronic formats, made available on the World Wide Web, or otherwise distributed electronically.

The Task Force began its work in September 2001 and made interim reports to the Academic Senate meeting in plenary session in January and May 2002. This publication was delivered to the Senate on 15 November 2002. The final report to the Senate will be made at its March 2003 meetings. Copies of these reports are available from the Senate office.

The two publications mentioned above are listed in the References section of this publication, and in the Appendix some historical information is given about the earlier effort, the products of which appeared under the auspices of the Consortium for Educational Technology for University Systems (C.E.T.U.S.) - the members of which were California State University, State University of New York, and City University of New York.

Both the earlier effort and this one were approached from the premise that university policy arises as the result of shared governance and the work of the Task Force benefited from the inputs of faculty, staff, students, and administrators. A major difference between this publication and the earlier ones is that the Task Force has attempted to address topics associated with patents as well as copyright. The work in the 1990s focused solely on copyright.

Purpose
This publication addresses several important points:

• The effectiveness of higher education requires a thorough understanding of the fair-use doctrine.



• Faculty and students, in particular, necessarily apply the fair-use doctrine as they perform their work.



• Newly enacted copyright law pertaining to distance education known as the TEACH Act will assist those who are teaching in this arena, but it is complex and requires a substantial effort by the university so as to qualify for access to its benefits.



• The initial ownership of newly created intellectual property in traditional university settings, and the subsequent disposition of the associated ownership rights, often has been unguided - sometimes to the detriment of teaching, learning, and research.



• The effectiveness of higher education requires a better understanding of how ownership rights associated with new intellectual property promote the mutual benefit of faculty, staff, and students and their learning communities.



• New models for the allocation of intellectual rights, based on licensing agreements which anticipate the influence of new technologies on teaching, learning, research, and creative activity in American universities must be designed and implemented.

APPROVED UNANIMOUSLY - March 6-7, 2003