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academic property laws (rather long)

updated fri 24 oct 97


D. Kim Lindaberry on mon 13 oct 97

In an article published in The Wichita Eagle, , the reporter uses an example of
Mr. Mays, a music professor at Wichita State University. Mays has
composed a piece of music called "Dream Catcher." Whenever a university
or college performs this composition, Mays gets $200 for leasing the
piece to them. Mays created the composition on his personal time, after
his day's work was finished at the university. He feels that since he
created it on his own time he owns it.

Joseph Barron Jr., general counsel for the Kansas Board of Regents,
isn't too sure about that. He seems to believe that legally this
composition could very well belong to WSU. Barron contends that since
"Dream Catcher" was composed by Mays using the knowledge that led to his
employment at Wichita State, WSU may have a claim to it.

Barron seems to be willing to argue that there isn't any such thing as
personal time at home. If a person creates something using the expertise
related to their employment, legally it may very well belong to the
employer. Barron doesn't seem willing to say definitely who would own
such works until the "Intellectual Property" policy is in place. That
could be because he knows that once this policy goes into place all
such works would technically belong to the employer and he doesn't want
to have the boat rocked before then. The policy tap dances around saying
that the employers would own such works but may give back ownership to
the creator but, "If ownership is to be transferred, the Institution
shall retain a royalty-free irrevocable license for use of the
intellectual property, including the right to publish data related to
the intellectual property."

So what about that modest $200 Mays receives for the performances of his
piece? Who would get it or how would it be distributed? According to the
draft under consideration, "When any royalty is obtained by or on behalf
of the Institution from the development or licensing of intellectual
property, not less than twenty-five percent (25%) of the royalty after
the expenses incurred by the Institution or Corporation to protect
and/or commercialize the intellectual property have been deducted, shall
be paid to the creator(s)." This is a bunch of legal talk to say
institutions can keep 75% and only give back 25% of any money made from
the use of a faculty member's intellectual property. Mays might only get
$50 and WSU $150. To me, something seems a bit out of whack in that
division of money. I still can't comprehend how WSU might deserve any
portion of such money, but the policy could make it so.

Here is a taste of the policy being considered by the KBOR

Intellectual property encompasses all works defined and subject to
protection by the laws covering patents, copyrights, trademarks, and
trade secrets, as well as other research/scholarly properties that have
been produced with institutional resources or are related to the
academic work of the creator. For the purposes of this policy,
intellectual property is meant to include, but not be limited to:
inventions (whether patentable or unpatentable); original works of
authorship whether or not fixed in any tangible medium of expression
(including literary, computational, and artistic), derivative works,
compilations and collective works; words, symbols, designs, or
combinations of words and/or designs that identify and distinguish goods
or services; service marks; mask works; and any other research/scholarly

The complete draft of the proposed policy may be viewed by going to

What is to be done about this? The KBOR seems to want to assure faculty
they don't want to take away their intellectual property, but then why
don't they write that into the policy they are considering? In the Eagle
article Barron even says, "There's no intent to take money away from the
faculty...The last thing regents would want to to discourage
faculty from using their talents." So why are they creating a policy
that would allow them to do just that? If the intent isn't to obtain the
license of intellectual property why bother to create such a policy? If
the Regents plan to exempt certain categories of work or faculty from
such license acquisition then why not state it in the policy? The way
the policy is written right now even a teacher's syllabus would be the
intellectual property of an educational institution. It could be argued
by Barron, or any other lawyer, that the teacher couldn't use the
contents of that syllabus if he or she got another job teaching at
another school. If that isn't the intention of this policy, they should
narrow the scope of the policy and be more specific. The Kansas Board of
Regents may not have any direct control or effect over most of you that
have braved reading down this far, but their actions may eventually come
around to haunt you. The time to voice your opinion about this ill
conceived policy is now. The proposed schedule for reviewing the draft
of the Intellectual Property Policy is in early November with a
recommendation to the Board early in 1998. I, for one, am planning on
writing a letter expressing my concerns about this proposed policy to
each of the Regents. If this concerns you too, I hope that you will do
the same.

The current members of the board are:
Harry W. Craig, Jr., William R. Docking, Thomas E. Hammond, Kenneth C.
Havner, Murray D. Lull, Phyllis Nolan, Sylvia Robinson, Robert V.
Talkington, Sidney T. Warner.

The Office of the Kansas Board of Regents
700 SW Harrison Street, Suite 1410
Topeka, KS 66603
Telephone: 785/296-3421
Fax: 785/296-0983

D. Kim Lindaberry
Johnson County Community College
12345 College Blvd.
ATB 115
Overland Park, KS 66210-1299

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