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LIBLICENSE-L  June 2013

LIBLICENSE-L June 2013

Subject:

Re: Controversies over who owns copyright in the ETD

From:

LIBLICENSE <[log in to unmask]>

Reply-To:

LibLicense-L Discussion Forum <[log in to unmask]>

Date:

Wed, 19 Jun 2013 17:45:12 -0400

Content-Type:

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text/plain (75 lines)

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

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