University admins: "you have to grant us rights to claim a share of your royalties, but don't worry, you can trust us, we don't plan to enforce those rights we are expressly putting into our new policy."

Always trying to lead the nation in something bad, Louisiana has now come up with a policy in the University of Louisiana (UL) system allowing university admins to claim a share of royalties on standard scholarly publications as well as to require that university lawyers vet any publication contract (e.g., for articles and books) to see if they can claim ownership. 

The best part? The "trust me" attitude the admins are putting forth. "You have to sign away your rights, but we won't be enforcing the claims which we've explicitly put in the policy we're adopting. Honest!" 

Philip C. Williams, president of McNeese State since 2010, said that while the university system's intellectual-property policy appeared to give campuses "a broad window" in which to operate, he had no intention of demanding royalties from faculty members for traditional academic activities.

"We do not and would not expect any faculty member to share royalties" for books, articles, or artworks, he said in an interview on Tuesday. He said it might make sense for the university to formulate a campus-specific policy that makes that clear.

We've discussed this issue before; this is a new wrinkle.

UPDATE: Below the fold, some excellent comments from Gordon Hull.

First, the gallows humor. There is something darkly funny about the thought of some functionaries of the state of Louisiana fighting with Springer for the royalties due to an article in, say, Continental Philosophy Review explicating the complete subsumption of society by capital.

In any case, that document is either totally obnoxious or a complete mess (I know a lot more about copyright than patents, so I’ll talk about that). Here’s examples from section V, on works for hire.

On the one hand, V(B)(1)(a) stipulates that the creator owns the work if it’s “unrelated to the creator’s job responsibilities and the creator made no more than incidental use of institution resources usually and customarily provided” (emphasis mine). Of course, any publication that you can use in your tenure file or which otherwise can be said to advance your teaching or your research is “related” to your job responsibilities. Ditto the “incidental” use of resource: if the university network happens to route your email to the publisher, the article is yours, but if you use site-licensed MS Word’s ‘work at home’ provisions to write it, that’s probably more than incidental. So heads they win, tails you lose.

On the other hand, the lead in sentence to V(B)(1) says that “In addition to traditional academic copyrightable work created by professional, faculty, researcher, or student creators in their field of expertise, a creator shall own intellectual property under the following conditions…”. Now, that sounds like that anything that one creates normally is one’s own – since “traditional academic copyrightable work” covers everything we ever publish (and everything you write is copyrightable, so that even covers lectures on one reading). If that’s the governing clause – and a strict reading of it sounds like it is – then everything is fine.

Or, yet again, the preceding section announces that “Institutions shall have ownership of all intellectual property created by persons under the conditions stated below.” That’s unequivocal enough. What are the conditions? It lists what are mostly works for hire conditions, and then says “if [the?] intellectual property fits within one of the nine categories of works considered ‘works for hire’ under copyright law.” The statement and the footnote ignore an important point about the caselaw interpreting that text (the governing decision is CCNV v. Reid, 490 U.S. 730 (1988)), that “No one of these factors is determinative” (id., at 752). That’s not at all what the policy says, though.

The next clause (f) is worrying too – the university gets it “if intellectual property results from research supported by federal funds or third-party sponsorship.” Really? So if I do an initial draft of the paper while supported by an NEH summer stipend, it’s theirs, but if I don’t, it’s mine? Huh?

(There’s weirdness about the fair use statement, too, where the university system asserts fair use rights that would get it sued in about 10 seconds.).

So: should one smell a rat? It seems like it, based on the 3-1 tally for them and against faculty researchers, but it’s a little hard to tell.