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Faculty IP Rights in Kansas

Inside Higher Ed reports that the Kansas Supreme Court will look at the question of university faculty ownership of IP in their scholarship. The case is an interesting one; despite its somewhat unique factual setting, it bears more generally on baseline faculty interests in their scholarship as well as on some creative uses of federal preemption doctrine.

In Pittsburg State University/Kansas Nat. Educ. Ass’n v. Kansas Bd. of Regents/Pittsburg State University, an unpublished disposition of a Kansas appellate court from last December (for lawyers, the text is at 2004 WL 2848767 (Kan. App., Dec. 10, 2004)), the court ruled that the Kansas Board of Regents (the governing body for Kansas public universities) unilaterally adopted a policy declaring that the university owned IP rights in faculty creations. Then the Board unilaterally reversed course. The bargaining unit representing faculty at Pittsburg State University objected to both unilateral policy pronouncements on the ground the ownership of IP should be considered a “condition of employment” and therefore must be the subject of collective bargaining. The appellate court, affirming the decision of the Public Employees Retirement Board, concluded that federal copyright law preempts the question of ownership in this instance, since the “work made for hire” doctrine automatically vests ownership in the employer (i.e., the university), and since copyright law imposes no duty to bargain away ownership interests, finding such a duty under state labor law would conflict with federal IP policy.

The appellate opinion is almost too brief to bear analysis, but it strikes me that the court’s preemption conclusion is on shaky ground. And the court’s “work made for hire” premise is inconsistent with well-regarded dicta from the Seventh Circuit (Posner, J., in Hays v. Sony Corp. of America, 847 F.2d 412 (7th Cir. 1988), and Easterbrook, J., in Weinstein v. University of Illinois, 811 F.2d 1091 (7th Cir. 1987)). I’m tempted to say — what happens on campus if the Kansas Supreme Court affirms, and universities have a precedent for browbeating faculty over copyright? But I’ve been involved in drafting a copyright policy for faculty at my university, and the drafting and negotiating process is already pretty contentious even where the university *wants* to set the default at copyright ownership in individual faculty.

All I know is: Here’s a great topic for a law review article.