The American Association of University Professors (AAUP) Statement on Copyright says the idea of "work-for-hire" should not apply to scholarly research. In a work-for-hire situation, employee-prepared works are under the control of the employer, while traditional scholarly works give faculty members control of the subject matter, intellectual approach, and conclusions of their work. This is the very essence of academic freedom.
However, many IP attorneys wrongfully assert that the intellectual property of faculty automatically becomes "work-for-hire" once a researcher steps into the world of academia by becoming a university employee. Except in the few instances where faculty researchers are assigned to research a specific issue, the ‘work-for-hire' doctrine does not apply to intellectual property created by university faculty.
When research is funded by taxpayer dollars or extraordinary resources of a university are utilized in creation of the intellectual property, the university has an ownership interest in the work. Simply paying the salary of the employee, or providing office space and allowing the researcher access to the library does not constitute extraordinary use of resources and should not garner the institution any share in ownership of the work.
The debate between individual property rights and the concept of work-for-hire is key in the case of Dr. Renee Kaswan, inventor of the breakthrough dry-eye treatment Restasis®. One of pharmaceutical giant Allergan's shrewd attorneys said "from day one, the day she walked onto the campus of the University of Georgia as a professor, she had a duty to assign whatever inventions that resulted (to the university)."
To add insult to injury, UGA sued Dr. Kaswan and then deducted its legal expenses for their frivolous lawsuits from her share of net royalties. UGA justified this action saying that the expense is associated with the patent, adding "the explicit text of UGA contracts (definition of net royalty) supersedes the implicit contractual duty for good faith and fair dealing" inherent in all Georgia contracts.
In another case, the University of Pittsburgh sued one of its inventors for rights in the combined PET/CT scanner based on the work-for-hire doctrine. Attorneys for inventor Dr. David Townsend said in legal brief that "Pitt's primary contention is that solely by virtue of being a professor at Pitt, Dr. Townsend either assigned or was obligated to assign all of his interests in any of his intellectual property rights to Pitt. Such a position is contrary to well established law."
Both the U.S. District Court and Circuit Court of Appeals rejected Pitt's work-for-hire claims and Dr. Townsend's rights in his intellectual property were secured against the university. A lawsuit waged by the Kansas Board of Regents would have given Kansas universities blanket ownership of its faculty's intellectual property and would have permanently abridged the rights of faculty inventors if the Kansas Supreme Court had not struck down a lower court ruling.
The Kansas National Education Association (KNEA) vigorously opposed the Board of Regents in court and the American Association of University Professors (AAUP) filed a brief in support of faculty rights. In its brief, the AAUP said "faculty scholarly work cannot be work-for-hire without violating the basic tenets of academic freedom, which is a 'special concern of the First Amendment.'"
In its ruling, the Kansas Supreme Court found that the Board of Regents move to claim rights in all faculty work was "too big a leap."