Re: Re: "University as author?"

The common law test for distinguishing between and employee and an independent contractor is relevant to the work made for hire argument only because it determines which of the two independent ways in which a work can be found to be a work for hire will apply. See CCNV v. Reid, 490 U.S. 730 (1989). Once the creator of the work is found to be an employee, the issue of wheter the work was created within the scope of employment must still be decided. The traditional "teacher exception" to work for hire seems to have been based on the conclusion that, although academics were expected to create scholarly work, no particular book or article on some specific topic was explicitly within the scope of employment. But there is no certainty that the teacher exception even survives the passage of the 1976 Act -- Judges Posner and Easterbrook of the 7th Circuit have both said, in dicta, that they think it does, but there has been no precedential holding to that effect that I am aware of. And since faculty works now take such a variety of forms, many of them, like online courses, much more clearly within the scope of employment than the traditional scholarly article, the validity of the common law teacher's exception may not really matter. If such works can not even arguably be placed outside the scope of employment, the institution's claim to be the author, should they wish to assert it, would seem very strong.

Kevin

Kevin L. Smith
Director, Pilgrim Library
Defiance College
201 College Place
Defiance, OH 43512
419-783-2482
ksmith[_at_]defiance.edu

• Original Message ----- From: Steven Jamar To: CNI-COPYRIGHT -- Copyright & Intellectual Property Sent: Thursday, August 11, 2005 3:20 PM Subject: [CNI-(C)] Re: "University as author?"

  Another problem with this analysis is that it confuses the test for determining whether someone is an employee or is an independent contractor with the consequences of being an employee. The relevant question is the scope of my employment, not direction or control of my work. What comes within the ambit of what I am hired to do? I'm not a specialist in employment law, but I am not familiar with direction and control being used to define the scope of one's employment. But it has been a long time since I've delved that far into master and servant and agency law to work that out, and things may have changed or my memory may be inaccurate.

  Steve

  On Aug 10, 2005, at 5:50 PM, Albert Henderson wrote:

    The problem with 'university as author' claims is where     academics do not write at the direction and under the     control of the employer. Their works may start before     they began employment at a given institution and be taken     with them if and when they go. As they are generally on     their own, their works cannot be easily grabbed by the     bureaucracy.

    Best wishes,

    Albert Henderson
    Former Editor, PUBLISHING RESEARCH QUARTERLY 1994-2000     Contributor HIGHER EDUCATION IN THE UNITED STATES. AN ENCYCLOPEDIA (ABC-CLIO 2002)     <70244.1532[_at_]compuserve.com>

  --

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