Copyright in Higher Education: A Review of Modern Scholarship
26 Pages Posted: 16 May 2016 Last revised: 17 May 2016
Date Written: December 31, 2015
Of the four intellectual property regimes, copyright is the most central to the day-to-day functioning of higher education. Nearly every course of instruction involves the use of written, visual, intangible, and tangible materials, many if not most of which are subject to copyright protection. Students, faculty, and staff — essentially all the people who comprise higher education — produce and interact with copyrightable and copyrighted materials every day. Copyright relates directly to perhaps the most prominent of higher education’s goals: to educate students through teaching, and to produce scholarship and research that benefit mankind. All of these acts involve creating and using original works of expression, fixed in tangible media. In short, there is no separating the centrality of copyright from the essence of higher education.
This article lays the foundation for enhancing our modern understanding of the function and application of copyright law in higher education. Through reviewing the history of copyright scholarship pertaining to higher education, I make the case that scholarly attention to copyright on campus has predominantly focused on two issues: (1) what I call the “copyright ownership question” (who owns copyright, with historic focus on the rights of faculty versus the rights of institutions), and (2) what I call the “copyright use question” (what kinds of uses of copyrighted material in higher education are fair uses, what kinds of uses should be fair uses, and why fair use is important in higher education).
This article delivers an unhurried narrative history of the scholarship concerning these two questions. Arraying this collective body of work should help future scholars situate normative proposals for improving the function and application of copyright law within higher education. In addition, reviewing this scholarship should help future scholars identify empirical projects that might build our understanding of the nature and extent of copyright ownership and use in higher education. The article’s conclusion discusses in more detail the kinds of scholarly projects that are ripe for future investigation in light of this history.
Keywords: copyright, higher education, literature review
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