Nathaniel Strauss Publishes Article on Copyright Issues in Education
Who owns a teacher’s work product? The instructor who created it, or the school that employs him or her?
That’s the central question addressed in a recently published journal article by Karr Tuttle Campbell attorney Nathaniel Strauss. Entitled “Anything But Academic: How Copyright’s Work-for-Hire Doctrine Affects Professors, Graduate Students, and K-12 Teachers in the Information Age,” the article appears in the Fall, 2011 issue of the Richmond Journal of Law and Technology (JOLT) and can be viewed here: <http://jolt.richmond.edu/v18i1/article4.pdf>.
Strauss calls attention to a pair of 21st Century developments that have breathed new life into issues that that spent the last century gathering dust in the halls of academia. At a time when schools at every level are facing budget crunches, the commercial value of scholarly work is gaining new respect. Don’t think “one more tired analysis of Elizabethan politics as expressed by Shakespeare’s minor characters.” Instead think, “Here comes the next Facebook or Google!” He points out that much of the software driving a technology economy grew from university science and engineering schools, a trend that shows no signs of abating.
Simultaneously, the pervasiveness of all things Internet has spawned the rapid development of distance education programs with a proliferation of potentially valuable online content created chiefly by faculty.
Into this setting enters some new “copyright termination” litigation made possible by a provision of the 1976 Copyright Act which allows original authors – after a 35-year waiting period – to recover rights previously assigned. Works made for hire don’t qualify for termination; so Strauss predicts a burst of lawsuits exploring when and how a work is “made for hire.”
The Strauss article weaves together an exploration of the concepts of the work-for-hire doctrine and the corollary “teacher exception” as they developed over time through case law and tradition, focusing on a set of the past decade’s copyright decisions. And he proposes a two-part test that would provide boundaries for the teacher exception in keeping with the court rulings.
Nathanial Strauss is a litigation associate at Karr Tuttle Campbell with a background in biotechnology and software engineering and a special interest in technology and information law. You can view his profile here. His examination of copyright law and the college campus was inspired by work he did as a law student for the University of Washington’s Division of the Attorney General’s Office. The journal publishing his work JOLT is an online-only technology law journal published by the University of Richmond School of Law.