From: Sean Andrews <[log in to unmask]>
Date: Wed, 19 Jun 2013 22:54:50 -0500

This same topic came up last week in relation to the former head of
the AAUP, Carey Nelson:

> Mr. Nelson characterized the debate at colleges over who owns the rights to faculty members' MOOCs as part of a broader battle over intellectual property that's being waged on America's campuses. At stake, he said, is not just the ability of faculty members to profit from their own writings or inventions, but the future of their profession.

> "If we lose the battle over intellectual property, it's over," Mr. Nelson warned. "Being a professor will no longer be a professional career or a professional identity," and faculty members will instead essentially find themselves working in "a service industry," he said.

http://chronicle.com/article/AAUP-Sees-MOOCs-as-Spawning/139743/

There was a very vocal fellow in the comment section who made the case
(over and over again) that if faculty produce a work in the course of
their employment, it should be classified as a work for hire. I know
there is some debate about this in relation to patents, but it seems
MOOCs would be an emergent front in this battle. I know of at least
one professor who was booted from the class he designed and was
teaching - I think it was at UC Irvine. But in that case, one of the
complaints students had was that he was using his $70 textbook for the
class. So at least he had SOME royalties still coming to him.

In any case, it seems like a faculty member could stipulate in their
contract (as they created said MOOC) that they should own the
copyright to the work. It is a brave new world and most faculty are
doing MOOCs with strange new arrangements. Cathy Davidson had a blog
post a few weeks ago saying that she didn't even get any course
release time for putting together her MOOC - nor did she get paid
directly, if I understood her correctly. Instead, they just gave some
more funding to HASTAC.  It's quite possible she could make this
demand (to keep her copyright to the course) as part of her contract.
Or is this misunderstanding how work for hire works?

Sean Johnson Andrews
[log in to unmask]
Assistant Professor of Cultural Studies
Columbia College, Chicago
2011-2013 ACLS Public Fellow
Director of Shared Libraries
The National Institute for Technology in Liberal Education
http://www.nitle.org


On Wed, Jun 19, 2013 at 4:45 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> From: Sandy Thatcher <[log in to unmask]>
> Date: Tue, 18 Jun 2013 20:47:13 -0500
>
> Whether graduate students may be considered employees or not is an
> interesting and vexed question. There have been arguments on both
> sides with respect to whether graduate students who have teaching
> responsibilities qualify as employees and thus may be eligible to form
> labor unions and claim collective bargaining rights. The NLRB's own
> position has changed over time on this question:
> http://en.wikipedia.org/wiki/Graduate_student_unionization
>
> It would seem a stretch, however, to argue that a dissertation can be
> claimed as a work made for hire. There are two ways a work can be so
> considered under U.S. copyright law: one is if it is "specially
> commissioned" and belongs in one of the classes of works named in the
> law; the other is if the author is an employee of the institution and
> the work is done "within the scope of employment."  Dissertations do
> not fall within the enumerated classes, so they can be regarded as
> works made for hire only if an employment relationship exists.
>
> The role of faculty here cannot be such that faculty themselves are
> employers. They do not pay their students to write dissertations. Even
> if their contributions were to be so extensive as to ground a claim of
> joint authorship, that would not turn the dissertation into a work
> made for hire, and the dissertation authors would have all the legal
> rights that joint authors do. However, it would seem to run against
> the grain of what writing a dissertation is all about for a faculty
> supervisor to be a co-author, since it is supposed to be the student's
> "original" work.
>
> And universities do not control the preparation of dissertations in
> the ways that they would have to do if dissertations were to be
> regarded as legally works made for hire. See the discussion here of
> the general common law of agency that is used to determine whether an
> employment relationship exists:
> https://en.wikipedia.org/wiki/Work_for_hire
>
> So, in my view, the argument for classifying dissertations as works
> made for hire is just not very persuasive.  I very much doubt that any
> court, if a suit arose, would conclude that they are.
>
> Sandy Thatcher
>
>
> At 6:34 PM -0400 6/18/13, LIBLICENSE wrote:
> >
> > From: Gail Clement <[log in to unmask]>
> > Date: Tue, 18 Jun 2013 13:54:32 +0000
> >
> > Good morning Colleagues,
> >
> > What happens when campus controversies arise over who owns copyright
> > in the thesis or dissertation? The latest posting to 'Free US ETDs'
> > considers such real life situations.
> >
> > You may view this posting at http://bit.ly/12Dl6b0
> >
> > The posting considers various professional, practical and legal
> > arguments opposing ETDs as works for hire, and suggests ways that
> > campus copyright educators can help resolve such controversies.
> >
> > Best regards,
> >
> > Gail
> >
> > Gail P. Clement
> > Scholarly Communications Librarian & Associate Professor
> > Digital Services and Scholarly Communication
> > University Libraries
> > Texas A&M University
> > [log in to unmask]
> >
> > 5000 TAMU | College Station, TX 77843-5000 |
> > http://library.tamu.edu