We wish to express first our thanks to the Provost's Select Committee on Intellectual Property, for their thoughtful and principled consideration of the complex issues presented by new technologies of information distribution in the life of the University, and to the University's senior administrators for the form of policy-making into which they have guided the University community. We believe that the draft policy represents an important step towards consensus on these critical questions, and we make the following suggestions for improvement:
The principle of academic freedom, from which the Committee rightly began its inquiry, requires that members of the University be able, without hindrance, to make their intellectual creations freely available to all. Members of the Committee have repeatedly assured the community at their public discussions of the policy that they believe this principle should be fully protected. For this purpose it is appropriate to amend the policy by the addition of a new section as follows:
I.D. Right of free distributionNotwithstanding any other provision of this policy, all works of authorship except institutional works as defined in I.C.1, videotapes and recordings made at University expense as defined under I.C.2(b), and works covered by I.B may be freely licensed by their creators on non-commercial terms (that is, without remuneration to the author), for free or commercial redistribution, without the authority or permission of the University, so long as the University's name is not used in connection with works so licensed. Authors of non-patentable computer software may release their works under the GNU General Public License or similar "free software" terms notwithstanding the provisions of I.C.4.
Additional definitions.
a) "Commissioned": Works of authorship are commissioned by the University if their creation is specifically directed by the University for its own use. Works are not commissioned if their creation is merely encouraged or casually rewarded, or if the works once created are adopted or employed by the University.
b) "Software": Software means executable computer programs released in object code or source code form. Data compilations, digitized video and audio, and documentation or other textual material are not software, even when released or distributed along with executable computer programs.
Non-patentable computer software should be treated under I.A, along with "textbooks, other works of nonfiction and novels, articles, or other creative works, such as poems, musical compositions and visual works of art, whether such works are disseminated in print or electronically." Otherwise the publication of program source code in book or article form, or the publication of generic descriptions of computer program algorithms in such forms, will pose innumerable problems of administration, as well as discriminating against those members of the university community whose preferred methods of communicating their ideas are computer programming languages, rather than mathematics, English, Chinese, music, or painting.
In addition, the second paragraph of I.C.4, requiring disclosure to the Provost of all works of computer software "if the faculty member or other creator believes the software has commercial potential," should be deleted. A requirement to disclose the subjects of one's research or writing to University administrators is an inherent violation of academic freedom. The imposition of this requirement on a single class of scholarly activity is discriminatory, and when undertaken with regard to the possibility of pecuniary gain to the University raises disturbing issues of conflict of interest.
(1) A Copyright Policy Standing Committee, made up of faculty members and academic administrators, shall be formed by the Provost to address any issues concerning the proper interpretation of this Policy and to resolve any disputes between creators and the University concerning ownership of works and what constitutes substantial use of University resources. A representative of the General Counsel's Office shall serve as an ex officio member of the Committee. Faculty not holding administrative office shall at all times constitute a majority of the Standing Committee. Selection of the Standing Committee's faculty membership shall be made by the University Senate after consultation with the Provost.
(2) Members of the University community may obtain advice from the Standing Committee. All such advice shall be given in writing, and shall constitute a public record of the University, and shall be available for consultation by any member of the University community.
(3) In the resolution of disputes between creators and the University, the decision of the Standing Committee will be by majority vote, and shall be accompanied by written opinion stating the grounds of the Committee's decision. All such opinions and dissenting statements, along with the record of votes cast, shall constitute a public record of the University, and shall be available for consultation by any member of the University community.
We believe that decisions of the Standing Committee should be final in all instances. In the event that this approach is not chosen, we believe that appeal should be provided from the Standing Committee to a three-member arbitration panel chosen in the standard form (each party to nominate an arbitrator, and those two arbitrators to select the third). It is not in our judgment feasible to resolve disputes by appeal from an independent panel to the chief executive officer of one of the parties.
Professor Mark Barenberg
Professor Barbara Aronstein Black
Professor George Fletcher
Professor Conrad Johnson
Professor Bradley Karkkainnen
Professor Subha Narasimhan
Professor Charles Sabel
Professor Peter Strauss
In addition, Professor Michael Dorf of the Law School joined in sponsoring points 1 and 2.
These comments were also endorsed by the Faculty Affairs Committee of the University Senate at its meeting on April 7, 2000.