Copyrightable Works in the Undergraduate Student Context: An Examination of the Issues

I. INTRODUCTION II. THE BAYH-DOLE ACT AND ITS INFLUENCE ON UNIVERSITY COPYRIGHT POLICY A. Introduction to the Bayh-Dole Act B. Changes to University Copyright Policies in Light of Bayh-Dole III. COPYRIGHT LAW A. Introduction to Copyrights B. Ownership of Copyrights C. The Work for Hire Doctrine D. Assignment of Copyright Ownership and Student Contracts IV. APPLICATION OF LAW AND POLICY TO SCENARIOS IN WHICH UNDERGRADUATES MAY DEVELOP COPYRIGHTABLE WORKS A. Student Employees B. Students working for Academic Credit C. Students as Students V. PROPOSAL FOR ACTION VI. CONCLUSION I. INTRODUCTION Imagine that you are an undergraduate student who, while enrolled at a university, created a copyrightable and potentially marketable work such as a software program. Your rights in your own work of original authorship will depend on a number of factors including how your relationship with the university is defined by the institution's intellectual property policies and by U.S. copyright law. Due to ambiguities and inconsistencies in many university intellectual property policies your rights may not be apparent. (1) Moreover, given the current academic commercialization Zeitgeist, emerging particularly after the Bayh-Dole University and Small Business Patent Procedures Act of 1980 (2) (the "Bayh-Dole Act"), in which many universities have established policies requiring students to assign most, if not all, of their patentable and creative works to the university, (3) you may wonder whether your university has established a broad policy encompassing your copyrightable work, or whether your university may establish such policies in the future. What might this mean in terms of your perceived ownership rights to your creative product and what might you do to preclude your university from acquiring rights to your creative work? If your university has a policy, and chances are that it does, have you been notified of the policy? (4) Could the spirit of entrepreneurship regarding patentable works lead universities to consider folding all copyrightable student work product into its intellectual property mix? Although the general presumption is that students retain copyrights in their own "student works," (5) even when created within the university setting, there are certain circumstances under which a university may acquire such rights. (6) While others have correctly asserted that ownership issues surrounding copyrights in the university setting are not as significant as those related to patents, (7) these rights are nevertheless significant to the student creator who may un-understandably lose ownership of a personal creation to the university to which the student, somewhat paradoxically, pays tuition. Moreover, ownership rights in traditional scholarly writings, which typically fall under the umbrella of copyrightable subject matter, carry with them the notion that such rights are fundamental to the author/creator. While the ultimate solution to overcoming the confusion surrounding ownership rights to student work product would be for each university to provide clear and comprehensive intellectual property policies to students and faculty, this comment will ultimately suggest that the very purpose of copyright law--to stimulate and incentivize creativity in order to foster the development of more creative works--would be frustrated by universities seeking to acquire copyrights to most if not all copyrightable undergraduate student work product. To this end, Part II of this comment will begin with a discussion of how the spirit of academic entrepreneurship emerging after the Bayh-Dole Act has shaped university intellectual property policies regarding student work product. Part III will provide a brief introduction to copyright law and the most notable aspects of copyright law, namely the work for hire doctrine as it pertains to students in the university setting. …