To the Editor:
I read about the travails of Carol Loeb Shloss with great interest ("Colleges Should Protect Humanists in Fair-Use and Copyright Cases," The Chronicle Review, December 11, 2009). While the situation is lamentable, I am not convinced that the blame lies at the feet of Stanford University or any other institution of higher education. Stanford addresses the ownership of patents and copyrights in a manner much like most other institutions of higher education in America—patents are owned by the institution, and copyrights are owned by the faculty and staff that generate the copyright interest (http://rph.stanford.edu/Chpt5.html).
Ownership, I think, is the key point of differentiation as to why an institution chooses to defend a patent interest and does not choose to defend a copyright interest. I think that it is a mischaracterization to suggest that such a differentiation is based solely on an institutional preference for contributions to "corporate, industrial, or military advantage."
Richard W. Buck
Associate General Counsel
Office of the General Counsel
University of North Florida
Prof. Shloss seems to be unaware that courts have recognized a traditional practice in universities to treat faculty writings as outside "the scope of employment" and therefore not, by definition under copyright law, as "work made for hire." If universities decide to offer risk insurance to faculty authors, then that practice is likely to go by the wayside and universities will begin to exercise the right, which copyright law gives them, to treat faculty writings that are directly related to their work as scholars and teachers as "work made for hire," with the university as copyright owner and legal "author." That is exactly the case with patents, where universities do exercise this right and regard themselves as the copyright owner, sharing a certain percentage of any profits realized from the sale of patents with the faculty inventors. Does Prof. Schloss really want to go down that path?
Pennsylvania State University Press