On Mon, 28 Feb 2000, Pat Sloane <patsloane[_at_]aol.com> wrote:
>
> On 02/28/2000, Jim Porter <jep21[_at_]po.cwru.edu> wrote:
> >
> > On Fri, 25 Feb 2000, Lyda Peters <lydap[_at_]aol.com> wrote:
> > >
> > > The college, on the other hand, asked for advice from their
> > > lawyers and were told that this work does belong to the college
> > > under "work-for-hire" copyright law.
> >
> > University lawyers typically answer the faculty copyright question
> > in this manner --
>
> The dual function of college professors as both "teachers" and also
> professionals in some field other than teaching leaves endless room
> for cleverly exploitive argumentation. My late husband, the American
> sculptor Kenneth Campbell (1913-1986) lived, worked, and exhibited in
> New York City but taught several days a week at a college in Maryland.
> In the 1970s, the Maryland Department of Taxation declined to return
> refunds he was due on his Maryland income tax return. When he
> appeared in court on the matter, the state's argument was that he
> was an artist in New York, and they therefore did not question that
> he was entitled to take his art supplies as a deduction on his
> federal return. However, they argued, in Maryland he was not a
> sculptor but "only a teacher" (he taught sculpture), and therefore
> these expenses should be disallowed on his Maryland return.
>
> As often happens, this stupid "technicality" was resolved by another
> technicality. The three-judge panel, on learning that Campbell's
> state tax returns had never been audited by the state, remanded the
> question to the Maryland department of taxation and told them to
> audit the return. Turned out (the judges must have know this) that
> the Maryland department of taxation had no facilities for auditing
> returns, and therefore no way of complying with the judges' order.
> We were able to negotiate a "settlement" in which they returned most
> of the money, but we offered to let them keep $100, the cost of a
> trip to Maryland for another hearing in the tax court.
>
> On the issue of a college's right to books written by faculty, this
> has come up many times, as has the question of whether a college is
> entitled to the proceeds if an artist on the faculty sells works of
> art. It mostly seems to be bluff on the part of colleges, lots of
> talk with no substance. I don't see how a college could prevail, or
> that it would be in the public interest. Would a college be entitled
> to the proceeds if a physician, engineer, or attorney on its faculty
> had a private clientele on the side? Is a police department entitled
> to the proceeds if an officer has a second job? None of these claims
> are made in good faith, because they all depend on the assumption that
> one buys a person rather than just a set amount of his or her time for
> a specific purpose. The "work for hire" at a college is the teaching,
> and it's none of the university's business if a faculty member writes
> books or wins golf tournaments or wins the lottery on his or her own
> time.
>
> Granted, a university could set up a policy where it owned any books
> or creative works developed by its faculty, and this could be a
> definite contractual arrangement. But it would severely limit the
> number of people who wanted to teach at such a college. Also, for
> those who did teach at such a college, it would be a strong
> disincentive to write anything.
The analysis that starts from textbooks and lecture materials and moves to digital versions generally assumes that digital works are prepared in the same manner as textbooks and lectures, at private initiative and under personal control. When these circumstances indeed do extend to the digital environment, then the disposition of rights ought to follow the usual course.
If the circumstances do not follow personal initiative, however -- such as works commissioned by institutions for institutional use, or developed under external grant funding in which a sponsor requires institutional ownership, or work prepared by faculty members and other collaborators (such as instructional designers, research scientists, and students) intending for their work to be merged into an interdependent whole, then whether the work is conventional or digital, rights will not follow the private model.
The point is, it is not the *form* of work (textbook, lecture, etc.) but the circumstances and understandings under which particular versions of such materials are developed, and the circumstances under which these versions are deployed for the institution and outside the institution. If an institution makes it a condition of access to specialized resources that the institution also has an ownership or financial interest in the resulting version of the work, and the authors agree to these conditions, then I don't see that there's much to debate.
Problems arise when an institution fails to make clear the conditions of access to and use of its resources; when academic authors seek a special private benefit in using resources provided for institutional activities; and, as Albert Henderson points out, when the institution does not provide incentives and appropriate management of control and attribution in the relationship with its authors.
My thoughts.
Gerald Barnett
Gerald Barnett, Ph.D. Phone: (206) 616-3451 University of Washington Email: barnett[_at_]u.washington.eduSeattle, WA 98195-4810 Received on Tue Feb 29 2000 - 17:57:38 GMT
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