From: Sandy Thatcher <[log in to unmask]>
Date: Thu, 20 Jun 2013 18:54:08 -0500
If it is a "specially commissioned" work within one of the enumerated
classes, then the parties have to agree in writing in advance of the
work's preparation that it should be considered "work made for hire."
No such agreement is needed if the work is produced by an employee
"within the scope of employment"; the work is automatically a work
made for hire if an employment relationship is found to exist. Faculty
can go to court to challenge a university claiming to be an employer
for this purpose, but they can't change the status of their work by
contract if the court decides that the faculty member is an employee
in this regard.
> 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.
> 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
> 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:
>> 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:
>> 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