Federal Grants and Institutional IP Policies

As a condition of receiving U.S. federal grants, institutions of higher educations must assign the federal government a nonexclusive license to make certain uses of works developed under an award, as part of the U.S. federal policy of providing immediate taxpayer access to taxpayer funded research. In order to comply with this requirement, the institution must have the right to make that assignment of rights. The nature of authorship in educational settings has long been the subject of confusion and some controversy, due to the ongoing question of whether faculty scholarship constitutes work made for hire. This in turn causes uncertainty as to whether, absent adequate policies, institutions have sufficient rights to comply with federal grants. The law may one day be clarified, but institutions need policies that work now. This paper first describes the current state of the law, including the various questions that arise with licensing use of scholarly works under different theories of copyright ownership. It identifies the characteristics of institutional IP policies that account for any of three possible future outcomes, allowing institutions to reliably comply with grant obligations without fear of legal reprisal. The paper concludes with recommendations for such policies, which in many cases would require little or no fundamental alteration of the relationship between faculty and their institutions.