From the Chair
On the Horizon: The Intellectual Property Debate
Faculty in the various schools are meeting-or will meet-to discuss issues regarding ownership of intellectual property. In the Spring of 1997, Provost Stanley Chodorow wrote each of the deans that "It is time to reassess our policies on copyright, software, and courseware in light of new challenges." He further commented that "It would be fitting if Penn, the birthplace of the information age, could also bring forth a sensible and practical policy on copyright, software and courseware." The Provost observed that this was no simple task and undoubtedly would be long and complicated but that both faculty and administration should be satisfied that all views had been considered. To that end, he asked the deans to form a group of both faculty and representatives of the dean's office in each school to discuss copyright, software and courseware policy and to frame a suggested outline for a University-wide policy (March 10, 1997). In accompanying comments to his April 18, 1997, letter to the deans, the Provost also proposed that since the new technologies blur the lines between the different kinds, or forms, of intellectual property, any new policy should cover the full range of intellectual properties-including policies on patents as well as copyrights. He suggested that the common ground on which all intellectual property rests be found. He also questioned the clarity of the distinction between teaching and research.
The initial response reports deadline of May 1, 1997, was extended to November 1, 1997, in his follow-up letter of April 18, 1997. That letter enclosed summaries of copyright and patent policies of peer institutions gathered by the Center for Technology Transfer, and also a 1995 report of a faculty-administration task force containing its tentative proposal on copyrights. The new deadline, November 1, 1997, is nearly upon us.
Professor William H. Harris, chair of the Senate Committee on the Faculty, has appointed Professor Ralph Ginsberg to chair the subcommittee on intellectual property, acting on one of its academic year 1997-98 charges, to examine this matter from a faculty perspective. They will be requesting information from each of the 12 schools so as to learn about the process of the deliberations as well as the outcome.
The Historical Context
Some history may be helpful in placing the current matter in context. According to Robert Gorman, Kenneth W. Gemmill Professor of Law, about ten years ago the University decided to design a "rational," comprehensive policy on intellectual property-on patents, copyrights, trademarks. The major initial focus was who owns patent rights and how should royalties from patentable faculty research be divided. With the dedicated help of the Center for Technology Transfer a new policy on patents was developed, effective July 1, 1993. An elaborate model for sharing and distributing royalties was developed, then widely debated through the University machinery and was accepted.
The next task was to turn to analogous issues in the area of copyright-e.g., books, journals, audio-visual materials. (The pol-icy on computer programs, now very valuable, which may fall between copyright and patents, is one of the issues yet to be ham-mered out.) During academic year 1994-95 the administration asked a task force composed of representatives of the faculty, administration and Center for Technology Transfer to reconsider copyright policy with the hope that it would be consistent with the newly minted patent policy. This task force reached consensus on a tentative proposal for a new University copyright policy. The task force proposed a general rule, in accordance with academic custom, that professors have the right to apply for, own all right, title and interest, enforce, profit by and transfer to other parties (i.e. publishers) copyrights in their works under the laws of the United States and other jurisdictions (Proposed Policy Statements on Copyrights, 4.0). There were exceptions in two well-defined situations: (1) when works are made under sponsored-research agreements in which the University assumes specific obligations with respect to a copyrightable work (4.0.1), and (2) when the faculty create works considered to be "works made for hire" and are thus the property of the University. "Works made for hire" are defined as those works that are prepared by an author pursuant to the express direction of a supervisor, or pursuant to specific provisions incorporated within a position description (4.0.2).
The Current Status
Present University policy is now approximately thirty years old and is seriously obsolete. Today, it seems clear that it needs revision. The issues are complex; gray areas abound. Three basic issues must be addressed:
Less apparent questions also need faculty clarification. One example is in the gray areas accompanying possible shared ownership between the University and faculty-e.g., distribution of royalties and the right to publish, revise, translate, etc. Furthermore, although there exist new technologies by which to transfer knowledge and new forms of "courseware," we must not lose sight that much of what faculty generate is not "high tech," but rather follows older models or are simply innovations on their themes.
The purpose of this message is to highlight some of the issues and to urge you to both inquire into and to participate in some way in the debate. This work is underway in your school, or should begin soon. Toward achieving full agreement, all faculty should take a central role in deliberating on these issues so as to achieve a fair and just resolution. Recommendations from any school should represent the advice of a representative group, not only from individuals tapped for committees. All have viewpoints and new ideas to contribute to the task.
The Faculty Senate has organized to address the issues. If the Faculty Senate office can be of help in answering a question or in directing you to our subcommittee or to individual faculty members with expertise, please call 898-6943 or e-mail us at email@example.com.
As we study and as we deliberate, one foot must be kept in the present and the other in the future. Yet, we must be wary of re-maining too long in the abstract. Only intellectually sound and fair agreements and pragmatic actions will move us forward. But, specifics need to be hammered out-now!
- Vivian Center Seltzer, Chair of the Faculty Senate