Re: Re: "University as author?"

On Aug 11, 2005, at 6:20 PM, Albert Henderson wrote:

> on 11 Aug 2005 "Kevin Smith" <ksmith[_at_]defiance.edu> wrote:
>
>
>> 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.
>>
> [snip]
>
> The reference to 'independent subcontractor,'
> which might be an issue in taxation or
> insurance, etc., has little bearing here.
>
> So much learned writing stems from research
> clearly based in graduate and post-graduate
> work, such as PhD theses, it would be ridiculous
> to claim it as within the scope of later
> employment.

That is not what "scope of employment" means in its gross sense. Is it part of your job to research and write? If so, then researching and writing is within the scope of your employment.

If you created the work before you were en employee of the particular employer at issue, then, it is not within the scope because of when it was created, not because of what it is.

Works must be fixed to be copyrighted. Fixation does not happen when you do the research or when you come up with ideas. It happens when it is fixed in a tangible medium of expression -- typed, or what- have-you.

I am not talking here about what the rule should be or what the result ought to be as a matter of sense and fairness, but what the copyright act seems to provide.

>
> Learned publishing is about the research,
> the process, and the skill, not so much
> the writing itself.

But copyright is about the work, not about the ideas or the process of getting them.
>
> Moreover, while the publication of research
> qualifies one for employment and tenure, it
> also must demonstrate originality and
> independence.

Well, I think this is a suspect description -- at least in legal scholarship, but in any event, this is not germane to the scope of employment issue.

> Publishing in academe is of primary value. The
> well-published academic can presumably find
> employment, which is of secondary value,
> without too much trouble, taking with him the
> talent for attracting grants and students.

I don't see the connection of this, even if true.
>
> Best wishes,
>
> Albert Henderson

-- 
Prof. Steven D. Jamar                                 vox:  202-806-8017
Howard University School of Law                       fax:  202-806-8428
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