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Minutes of 31 March 1999 Present: Frank Abrams, Carolyn Argentati, Annis Barbee, David Broome, Mark Crowell, David Danehower, Scott Despain, Lisa Grable, Peggy Hoon, Ernest Knowles, Carolyn Miller, Sandy Newville, Everette Prosise, Michael Rappa, and Ross Whetten. Agenda 1. Discussion of Copyright Ownership Policy Recommendations 2. Other Business Minutes Co-chair Ross Whetten called the meeting to order at 3:35 P.M. Whetten indicated that an e-mail poll following the last meeting had demonstrated a lack of committee consensus on a policy approach, necessitating another meeting. He then announced that Peggy Hoon had prepared a policy outline to present to the group, and Hoon began her presentation by distributing several handouts on relevant copyright law, the NC State faculty handbook, and case law. The objective of Hoon's policy proposal was to protect faculty and the university while allowing freedom of creation and use of materials for both. She posed two questions: Are faculty employees of the university, and is their work within the scope of their employment? After considerable discussion and with philosophical reservations from co-chair David Danehower and Michael Rappa, the majority agreed that legally, faculty are employees of the university. The group further agreed that staff are employees, that "typical" students are not, and Danehower suggested that administrators be included as another "employee" category. Frank Abrams disagreed with this suggestion. Hoon then suggested that there are two possible answers to the "scope of employment" question, each bearing specific legal consequences. If faculty work (such as teaching materials, scholarly journal articles, monographs, and texts) is NOT within the scope of their employment, faculty will likely lose the benefit of the following with respect to those works: 1. The "Reasonable Good Faith Fair Use Defense," Section 504(c)(2) of the copyright act; 2. University counsel representation; 3. Protections in the database bill that mirror section 504(c)(2) of the copyright act. In short, the faculty will be potentially at risk and unprotected by the university for many claims of copyright infringement. This is significant. If faculty work IS considered within the scope of their employment, protections do apply because they attach to "employees" working "within the scope of their employment." Given this scenario, Hoon suggested that university policy simply state: "The faculty shall have the copyright …." followed by the types of works the Task Force decides to recommend. This wording should accomplish the objectives of protecting the faculty without unduly antagonizing them as well as allowing for the correct interpretation of the university's position with respect to the works. Hoon then noted that any other policy elements--such as restrictions on copyright transfer, university nonexclusive use rights, and material designations--would be at the discretion of this task force and should be based upon faculty input at town meetings and other venues. The task force then examined several key policy points. To the question of material designations, Rappa responded that, given the rate of technological change, the policy should not specify types of materials; it should generally state that "the faculty shall have the copyright to materials they create." Given the suggestion from the Vet. Med. town meeting that the policy should prohibit copyright transfer to publishers, the group examined potential complications of such a restriction. They concurred that the policy could restrict copyright transfer, but the university could also waive this restriction if problems in faculty getting published arose. The same logic would apply if a university nonexclusive use right were to cause publishing problems. The issue of student materials was discussed, and the group suggested that students could be asked to sign a release upon acceptance to the university. Danehower suggested that faculty could sign licensing agreements at the hiring stage, but Hoon pointed out that ownership must be established before licensing can function. The group discussed defining "substantial," "minimal," and "no" use of university resources in determining university ownership of and/or use of materials. There was consensus on the issue of the university holding the copyright to materials in which it had invested "substantial" resources. Members then made several suggestions for defining levels of university resources including money, time, and staff. Sandy Newville suggested that the university should clearly explain what it will provide as minimal support and anything above that would be substantial. There was some discussion of handling this on a case-by-case basis, but the group agreed that this is not optimal. Crowell and Broome stated that in the consulting policy, there are definitions of "inappropriate use" that could reworded to describe minimal and/or substantial use of resources. The members expressed concern, in defining levels of university input, to not create a disincentive for faculty to freely exchange ideas and to freely use university resources and services for the development of course materials, textbooks, and journal articles. Abrams emphasized that the university does not wish to wantonly claim ownership of faculty-created materials nor does it provide resources, such as the Learning Technologies Service, to facilitate such action. The group agreed that the policy should clearly state what level and type of university resource input is considered "substantial," "minimal," and "none" and to define university ownership and use rights in each instance. Miller suggested that proper credit is also an issue. The creator should have the right to control whether his/her name is on material. This principle would also apply if the material becomes dated or suffers in quality with later editions; the original creator should have the right to request that his/her name be removed. Whetten summarized the discussion and outlined the next steps. The consensus seems to be that the university will be able to use faculty-authored materials but that the faculty will hold the copyright. Joint ownership may also be the case where the work is created by nonfaculty university employees and faculty. The current objective is to arrive at a consensus on how much investment defines "substantial" and "minimal" university input and to fill in these blanks in the policy outline Hoon has provided. Whetten offered to draft a policy and to distribute it via e-mail to the members for feedback. The meeting was adjourned at 5:20 P.M. Submitted by Annis Barbee
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Last Updated:3/23/99