INTELLECTUAL PROPERTY RIGHTS OF FACULTY AND PROFESSIONAL STAFF

WHEREAS, the U.S. Copyright Act (Title 17, U.S. Code) assigns to the creator of "original works" exclusive rights with regard to reproduction, distribution, preparation of derivative works, performance and display of those works; and

WHEREAS, the U.S. patent law (Title 35, U.S. Code) grants property rights to inventors' "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States; and

WHEREAS, American academics "faculty, professional staff, researchers, and graduate student research assistants" are among the world leaders in the creation of intellectual property protected by U.S. copyright and patent legislation, and, internationally, by the Berne Convention, the Patent Cooperation Treaty, and the Paris Convention; and

WHEREAS, recent U.S. Supreme Court decisions, Florida Prepaid Postsecondary Education Expense Board vs. College Savings Bank, following Alden vs. Maine and Seminole Tribe of Florida vs. Florida 1999, have inflicted grave damage to the U.S. copyright and patent laws by ruling that state entities, including universities and colleges, cannot be sued for damages in federal court for infringement on the intellectual property rights of their employees, holding that the federal government's power under Article 1 of the Constitution to effect the "abrogation of States' sovereign immunity is invalid"; and

WHEREAS, the Supreme Court decisions also block legal action by owners of intellectual property rights who are citizens of other nations to sue state institutions in the U.S. for infringement of their rights assured by international treaties, signed by the United States via its Constitutional power in Article 1, Section 8, which states that "Congress shall have power…to promote the progress of science and useful arts, by securing limited times to authors and inventors the exclusive right to their respective writings and discoveries." The Supreme Court decisions thus threaten damage to the standing of the United States in the international economy; and

WHEREAS, some university and college managements are aggressive in interpreting and enforcing the "work-for-hire" provision of the Copyright Act to claim ownership of faculty intellectual property 'copyright and patents' including recordings of faculty lectures and classroom materials, and now are likely to be even more active in light of the Supreme Court's decisions; and

WHEREAS, in a time of emphasis on the globalization of higher education and the deployment of educational software via the Internet in the United States and in foreign higher education jurisdictions, the desire of academic management to employ intellectual property as a revenue source has intensified and may become even stronger with the weakening of federal patent and copyright jurisdiction:

RESOLVED, that the AFT exert its influence to press for the enactment of legislation that will restore the authority of the U.S. courts over states and entities deemed to be "arms of the state" pursuant to the U.S. Copyright Act and the U.S. patent law administered by the Patent and Trademark Office; and

RESOLVED, that AFT higher education locals, assisted by the state federations and the AFT, negotiate contracts that protect the intellectual property of their bargaining unit members, establishing protection from over-reaching applications of the work-for-hire provisions of the Copyright Act as well as patent protection, and assuring an equitable sharing of any financial gain generated by joint development of intellectual property within the institution; and

RESOLVED, that the AFT, state federations and higher education locals work to protect the exclusive intellectual property rights of members' scholarly instructional and artistic works, including, but not limited to, textbooks, classroom presentation and instruction materials, research publications, software, Web pages, graduate student theses and dissertations, paintings, drawings, sculpture, musical compositions and performances, dramatic works and performances, and literary creations, poetry, fiction, and nonfiction.