South-Western Legal Studies in Business

Intellectual Property Rights Subject to Bargaining by Public Employees
Description Kansas high court held that a university could bargain with its faculty union regarding rights to copyrights and patents created by faculty. Federal copyright and patent law do not prevent parties from bargaining over that issue.
Topic Labor Law
Key Words Bargaining; Conditions of Employment; Intellectual Property
C A S E   S U M M A R Y
Facts The Kansas National Education Assn. (KNEA) is a union that represents some faculty at Pittsburg State University (PSU) in Kansas. It filed a complaint that PSU violated labor law by failing to confer with KNEA before it adopted a policy regarding ownership of intellectual property. PSU contended that it had no obligation to meet on that issue as it was preempted by federal law regarding intellectual property. After complicated rulings by the lower courts, the matter was appealed to the Kansas high court.
Decision

The Copyright Act does not preclude the university and the union from entering into an agreement regarding the subject of intellectual property rights. Whether or not the work-for-hire doctrine of the Copyright Act applies to university faculty depends on whether the work was the type of work the faculty member was hired to create, whether it was created substantially within the time and space limits of the job, and whether it was motivated by a purpose to serve the university employer. Similarly, patent law does not preclude the university and the union from entering into an agreement regarding the subject of patent ownership between the university and faculty members. An employee must be specifically hired or directed to create an invention before the employer may claim ownership of patent rights.

Citation Pittsburg State Univ. v. Kansas Board of Regents, 122 P.3d 335 (Sup. Ct., Kan., 2005)

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