Copyright and Faculty Ownership of Intellectual Property
Under the Federal Copyright Act, 17 USC §1.01, work-for-hire is (1) work prepared by an employee within the scope of employment, or (2) work specifically ordered or commissioned and prepared per a written contract [by an employee or non-employee], such as an instructional text, test and test answers. Under a work-for-hire contract, the parties decide who is the owner of the copyright.
SUNY’s copyright policy was written in 1954 when the 1909 federal copyright act was in effect. Under the 1909 copyright act, there was a common-law exception from the work-for-hire rule for faculty work. That is, despite the work-for-hire rule that would otherwise have vested in SUNY as employer ownership of copyright in faculty-employee work, copyright in faculty work vests in the faculty.
SUNY’s policy incorporates the general academic common law work-for-hire exception (to the effect that faculty own the copyright in work produced in the scope of employment), but retains the ability of the University to specifically order or commission a faculty member per written contract to create work-for-hire, in which either the University or the faculty member may own the copyright, as the parties shall agree and reflect in the contract.
With respect to faculty materials used on the web for instruction, under the current SUNY policy, copyright ownership is treated no differently than faculty materials produced for the classroom. That is, faculty own the copyright under the academic work-for-hire exception embedded in SUNY’s copyright policy. Alternatively, SUNY and faculty may enter into work-for-hire written agreements relating to materials produced for on-line use in which the parties may agree to vest copyright in either SUNY or the faculty and to provide for related licenses.
SUNY’s copyright policy applies to the State-operated campuses, but does not apply to community colleges under the program of the State University. Ownership of copyright in faculty materials may be addressed in a copyright policy of a community college or in collective bargaining agreements of a community college. To the extent ownership of copyright in faculty materials is not so addressed, SUNY encourages each community college to adopt policies and agreements that facilitate licensure of faculty materials in support of Open SUNY or the SUNY Learning Commons with respect to those faculty members who volunteer to participate in such programs.