Who owns student work?

In two cases in which I blogged about my students' lab projects, I contacted them and got their permission. But I do not know if that was just my niceness, or is it something I was required by law to do.

Here is what came to my mind.
I teach at a small private school, and among other items constantly drilled at us is the topic of (my phrase here) student privacy. We are not allowed to give grade information during or after the semester to anyone but the student. We are not allowed to give homework, tests, or projects, once graded, to anyone except the student. We are told, among other things, that "graded items belong to the student".
If that is the case (and this is one of the few things we are told that I believe makes sense), contacting the student and asking permission to use their work would seem to follow.
And, as noted by Coturnix, it is also a polite thing to do. I congratulate both of you for doing so.

Students are like employees? No.

Students are paying customers. They pay for their education, and what they take away is their own. Since they are not paid for anything they create, there is no transaction, no transfer of ownership. The creators are the owners.

The school's lawyers will make all kinds of outrageous claims (where do you think the White House lawyers get their inspiration?) and judges usually see it the lawyers' way, even though judges are supposed to safeguard the public, not the law firms financial fortunes.

I agree with Dean. I teach (Computer Science) at a liberal arts college, and everywhere I've taught, I've had it drilled in my head that grades have to be kept private. Recently, it's been observed that even handing back assignments in a pile outside an office is a violation of privacy. I'll go so far to say that you *have* to ask, and if you can't get permission, you can't use it.

On the other hand, if a student were to discover a perfect way of parallelizing loops or to prove that P=NP, I'm sure the university will step in to assert their claim on the work.

So I think the student, you, and the university all own the work.

From a copyright law perspective, under the Berne Convention the copyright is owned by the student as soon as the pen hits the page. Or as soon as the student hits the keys if it's a computer document.

Now the abstract ideas in the paper are a slightly different story. If as in the above example a student proves P=NP, the student alone will own the copyright to his paper but the fact of the proof itself cannot be copyrighted or patented. On the other hand, if parallelizing loops is patentable (and it probably would be under current patent rules), the actual method of doing so is owned entirely by the student if he actually files for the patent.

I'm pretty sure we usually treat it as though undergrads own their work. I'm unaware of any convincing argument for either legal or defacto policy for the professor to own the work (aside from the practice of using Turnitin, which may well be illegal).
Now, by another line of reasoning the university owns all the work the students do. Of course, as I discovered in grad school, carrying that line of reasoning to it's extreme implies that since the university employs me as a fellow, they are entitled to ownship of any intellectual property I create with any help from their resources... In other words, although I am a biologist, if I write a poem or paint a picture in my dorm room, they own it. This is so absurd I hope it's never put to the test, but the ability of Unis to own intellectual property definitely has a dark side.

Unless a legal agreement to the contrary exists, the person who wrote it owns it, period. Historically at least, undergrads have never been commonly subject to such, so it's a fair bet that they own the works. Turnitin, as Becca mentions, is a bit of a sticky case. Students are, in some cases, forced to allow their work to be submitted(or just have it submitted without their knowledge), which is almost certainly a copyright violation; but nobody has been able to land a solid hit on Turnitin on those grounds.

As for those employed by the university, I think that productions unrelated to one's employment are generally not considered to be works for hire(though, if some biochemist turns into the next Shakespear, I suspect that lawyers will be found to argue the contrary).

I got curious about this one day and actually went and asked about it at the college offices (Idaho State University).
What I remember (or think I remember) is that the policies seemed to indicate that the student retains copyright, but the college gets an irrevocable, non-transferable, perpetual license to use the material - or something of that nature.
As I don't recall ever signing anything that explicitly had a statement like that on it, this may be something the college got their lawyers to say they got automatically rather than something that would necessarily stand up in court, but in any case I do remember that the policy didn't seem unreasonable. I have no training in law, though, so who knows...
Asking for permission anyway strikes me as the best policy (and definitely good manners).

Even if you pay the student, or anyone else, for a contribution to something you publish, the ethical requirement is to acknokledge their input.

There are some new wrinkles added to all this when an educational institution demand all papers be submitted through some gateway that vets the submission for plagiarism and other things. Those gateways might be run by a third party that might reasonably add the submitted work to its filtering corpus.

IANAL, but the student would seem to own the copyright, and this is not a "work for hire" since there isn't an employment relationship with the student (leaving aside TA/RA relationships for now). Hoever, academic institutions have fairly broad "fair use" justifications[*] that might preclude the need to prior permission to use the work for educational purposes. However, it's probably polite to ask for permission prior to using the work.

The concern about returning homework in a box outside the office door is (AFAIK) a privacy issue surrounding the grade on the assignment, not a copyright issue.

[*] my understanding is that fair use isn't a "right" per se, but rather a justification why a particular use doesn't violate the rights of the copyright holder, but most of my copyright knowledge comes from sources like the video linked from my name, so don't trust what I say too much.)

The student owns the copyright, period, unless the school makes every student sign a waver specifying that the school can reuse the work - and in that case the work and the reuse cases need to be specified; you can't do a blanket waver. I guess that's what schools do (or ought to do) in the case of Turnitin and such services: specify that as part of the school rules the student accepts is included a limited waver allowing the school to submit assignments to such parties for the purpose of detecting fraud. Asking your students is not just courtesy, it is necessary. And you should really, really try to get the permission in writing; oral contracts are valid, but without a record a conflict can easily devolve into a he-said she-said fight that nobody wants.

Citing student work in scholarly papers is yet another thing, not specifically connected to copyright (we do have a scholarly right to cite other works). You acknowledge your sources or your paper is at best sloppy, or, if an important part or large portion of your work rests on that student work, quite possibly plagiarism.

I'm fairly certain that, barring some contract otherwise, the student holds copyright on his or her papers. However, in the case of patents (which Jeremy and Matt brought up), the ruling may be different. Generally grad schools assert patent claims on the graduate students' work (since the students are using school resources to create the material, similarly to how corporations assert claim on inventions made using company resources/time/etc).

On the other hand, graduate students are often allowed to start companies after graduating with their work (e.g. Google), so it's complicated. What little I know about patent law suggests that it is incredibly confusing. As far as undergraduates creating something patentable...who knows?

Here's a page on ownership of patentable work in university settings: http://www.cs.washington.edu/commercialization/ownership.html

Not sure about the US, but in New Zealand (and I think UK or Australia) students have copyright automatically in their written work in the absence of an express term to the contrary in University regulations.

This might be subject to an implied licence to allow lecturers to do something with it if that's necessary to fulfil the purpose of the learning. Or there's the ordinary rule of fair dealing in copyright cases.

Not sure about patents.

It is actually easy to see why the student and only the student has copyright: it is something done for a grade and must be original and done by them. So they are the copyright owners, not the teacher or the school. If your contribution was enough to make you partial copyright holder, then it was not possible for this to be something that gives the student a grade.

Things a student hire does for money are different - but here, there is a contract involved.

In Europe, they can give away or sell the rights to use their materials, but you must always name the copyright owner, as this right is non-transferable.

In the US, the right to be named as copyright owner can also be given away or sold. But there must be a contract!

So the university must have the students sign away their rights, which is very silly, as the students are *paying* for their educations in the US, as 6EQUJ5 has pointed out. Universities should get off their duffs in just wishing it were so, and make it extremely clear who owns what, what rights students have and what rights the teachers have.

The nasty (and more often exposed) practice of publishing the work of students as one's own must come to an end! There are cases of professors publishing results (even using the words of the students 1:1 !), of PhD students using the Master's Thesis or term paper of a student they were mentoring and incorporating it unreferenced in their own thesis - this is just not science.

Treat them as peers: ask to use material, thank them in writing if they contributed material, put their names on the paper if they wrote most of the text! And set forth contracts, so everyone knows where they stand and what their rights are. If I want to extensively re-use material of a student for a research project, I buy a license from them!

I have had problems with publishers not wanting to have "all these names", but I am adamant. If they all wrote it and stand for the entire paper, then they are all authors.

Or we can just get rid of the entire idea of authorship, but that is another rant.

I had an interseting experience with regard to this.

My MSc was undertaken on a part-time basis while I was a UK Government employee. Indeed the Government dept I was employed paid my fees and I was actually officially doing the MSc as part of my work (it was of course directly relevant to my role). The University specified that all work submitted by students as part of the course became and remained the University's property. While my contract of employment states that all documents, papers, ideas etc I produce as part of my work are the property of Her Majesty's Government under Crown Copyright.

It seemed for sometime that I'd hit an impasse. In the end though the University backed down and said they waived their rights. It did emphasise though that the University was routinely claiming (in the small print) the IPR and rights to students work.

In my field (in the U.S.) this is not only an issue of copyright, but of using data gathered from human subjects, hence it's an IRB issue. So concerns would be "Did the students consent to their work being sampled for research? Is the text extract anonymous, tied to their name, or tracked by certain demographic variables?"

Thanks for the comments, everyone! I suspected that the students were still the copyright holders, but you just never know these days (and as this discussion has brought up, there are some interesting gray areas out there---how long will it be before someone sues turnitin.com?). So I will continue to ask students for permission to use their works---I typically do this via email, so hopefully that's "written consent" enough for legal purposes. :)

Ling.Lass, you raise an interesting point about IRB---I'm guessing, from my limited experience with IRB, that this does not fall under that umbrella, but again, I'm sure there are some gray areas there too.

Sorry Jane, this very much does fall under IRB (I'm a CS education researcher).

Talk to your IRB about reporting on "pre-existing data". For this type of thing (course work), depending on your institution, they may not require you to get signed consent. As long as you anonymize, etc. Including the student names in the acknowledgements would be a big red flag on the review though (who would otherwise expect that you did get IRB approval and are supposed to be protecting students' anonymity.).

Again, just give the office a call. But do see if you can get the names of students out of the ack section before final publication.