For a group that tends to dispute everything even a position that would presumably only side in their own interest, academics too must conced the legal ambiguity of the copyright law’s “work for hire” doctrine when applied to the academic setting.  What probably not in dispute is, as one commentator describes it, that “Traditionally, it was presumed that educators owned copyrights to academic work they have authored or created.”

True, it was (and is still) assumed, but it was never codified in the Copyright Act and never directly established by caselaw.  That too is not in dispute.  Thus to characterize a theoretical university’s position, on the bare facts of the employment relationship: “Educational institutions … claim an interest in the work and point to the faculty’s use of their resources in its creation.  Institutions also can assert that producing such work is part of the educators’ employment obligation.” (http://ow.ly/18O9A)

To be sure, with exceptions for adjuncts and other guest lecturers, most teachers would be considered employees of their colleges and universities.  It is hard to imagine that most teachers would care to dispute that claim, as evidenced by their benefits eligibility, academic protections and broad use of school resources, among other obvious indicia.

The reality is – or, until recently, was – that none of this really mattered.  Not much was at stake in the pre-online and –distance education days.  In one of the rare but prominent pre-internet era cases addressing the issue at all, an “academic exception” to the copyright work for hire doctrine was acknowledged based both on tradition and policy.  The University of Chicago’s and Federal Judge Richard Posner wrote for the 7th Circuit in Hays v. Sony Corp. of America (847 F.2d 412, 416 (7th Cir. 1988)):

“Although college and university teachers do academic writing as part of their employment responsibilities and use their employer’s paper, copier, secretarial staff, and (often) computer facilities in that writing, the universal assumption and practice was that (in the absence of an explicit agreement as to who had the right to copyright) the right to copyright such writing belonged to the teacher rather than to the college or university.

“Nevertheless it is widely believed that the 1976 Act abolished the teacher exception [citations omitted] – though, if so, probably inadvertently . . . .  To a literalist of statutory interpretation, the conclusion that the Act abolished the exception may seem inescapable . . . .  But considering the havoc that such a conclusion would wreak in the settled practices of academic institutions, the lack of fit between the policy of the work-for-hire doctrine and the conditions of academic production, and the absence of any indication that Congress meant to abolish the teacher exception, we might, if forced to decide the issue, conclude that the exception has survived.”

In any event, a university’s hard-line position on this might only be ‘theoretical’ because, as noted by the Sloan Consortium, “[m]any institutions have created policies that formally recognize the academic exception and have voluntarily given faculty ownership of scholarly and teaching works.”

Any actual kerfuffle over this issue was one of recent making, illustrated by a dispute about ten years ago between Harvard Law School and Harvard law professor member Arthur Miller.  Without permission from Harvard, Miller had contracted with Concord University School of Law to videotape law lectures for use by Concord’s students.  This despite Harvard’s policy prohibiting faculty from outside teaching without permission.  (Miller evidently argued that, since the sessions were videotapes only and not live lectures, he was not technically “teaching” and not thereby violating the Harvard policy.)

As already noted, this issue hardly mattered until the relatively recent rise of the internet and the accompanying explosive commercial growth of online education.  In 2000, for example, the New York Times described this venture involving Williams College:

“Global Education Network, a company founded partly by Herb Allen, the president of the venture-capital firm Allen & Co., has approached Williams and Brown University, among others, with an invitation to contribute course material to a proposed for-profit Web site providing on line liberal arts education for adults.  Officials at Williams have said that the venture could earn the institution upwards of $250,000 per year, per course, for up to 10 courses.”

The looming academic food fight was noted only in parenthetical, discussing a different venture involving the University of Chicago where “Payment to participating professors has not yet been set.”

So, then, there is academic research and publishing tradition, there is copyright “work for hire” doctrine, there is caselaw including from one of the foremost conservative federal judges (and, not incidentally, academic heavy-weight).  There is analogy from patent law and university technology transfer practices, where inventions and discoveries are almost always owned by the institution for which a researcher works.  But there is no “academic exception” to “work for hire” doctrine, leaving faculty and non-faculty researchers and teachers potentially subject to the uncertainties of a fast-changing academic and commercial marketplace.  Academic copyright and research policies have attempted to allay faculty concerns, as have teacher participation in commercial ventures like those described above for Williams and Chicago.

I will write more on this subject shortly.

Significance of “Work Made for Hire”: The significance of a work being deemed “work made for hire” is that the beneficiary of that designation owns full copyright in the work outright and exclusively.  Thus, as between an employee an employer, the employer owns the copyright to any works created by that employee within the scope of his or her employment.  Likewise for a party contracting for the creation of a work from a non-employee.

“Work Made For Hire” and Non-Employees: For a work created by a non-employee to qualify as “work made for hire”, all three of the following criteria must be satisfied:

1. The work must be specially ordered or commissioned. In other words, the thing being contracted for must be something newly created for purposes of the particular transaction at issue, as opposed to sale or license of something already existing.

2. The work must be the subject of a written agreement or other written material, created and signed by both parties prior to beginning the work, stating their mutual intent that the work is to be considered “work made for hire”.

3. The work must fall into one or more of the nine categories enumerated in the Copyright Act, 17 USC §101.  These categories are:

a. A translation;

b. A motion picture contribution or other audiovisual work;

c. A collective work contribution (example: a magazine article, or contribution to an anthology or encyclopedia:

d. An atlas;

e. A compilation;

f.  An instructional text;

g. A test;

h. Answer material for a test; or

i. A supplemental work such as a preface to a book, a foreword, illustration, or musical arrangement.

Disputes as to “work made for hire” arise under several common areas, in particular these:

1. The distinction between an employee and a non-employee or independent contractor.  This issue was addressed in 1989 by the US Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).  A common scenario involves a party who commissioned a work in the absence of a written agreement as to “work made for hire”, arguing that the author or artist was in fact a statutory employee.  An employee might also argue that, while conceding the employee-employer relationship, nonetheless the work was created outside of the scope of the employment relationship.

2. Nonqualification of the relevant work under one or more of the nine categories enumerated in the Copyright Act.  Addressing this point, contracts often have an “belt and suspenders” kind of clause involving language providing that in the event a work is deemed not a “work made for hire” that, nonetheless, the author has agreed to an assignment of the full copyright to the commissioning party.  This is common particularly with software development agreements, since software is clearly not an included category in Section 101 of the Copyright Act.

Copyright Act of 1976:

http://www.copyright.gov/title17/

Other resources:

http://www.developerdotstar.com/mag/articles/daniels_softwarecopyright.html

http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=July&artYear=2009&EntryNo=8329

http://www.theiplawblog.com/archives/-copyright-law-ownership-issues-underlying-the-work-made-for-hire-doctrine.html