RE: Re: "University as author?"

Also keep in mind that some (many?) states may have legislation (based on public policy ideas) that prevent an employer from over-reaching and trying to grab everything that its employees create or invent. The North Carolina statute (§ 66‑57.1) is shown below and is worded almost identical to the California statute (I don't have the section number handy) dealing with the same issue.    

§ 66‑57.1. Employee's right to certain inventions. Any provision in an employment agreement which provides that the employee shall assign or offer to assign any of his rights in an invention to his employer shall not apply to an invention that the employee developed entirely on his own time without using the employer's equipment, supplies, facility or trade secret information except for those inventions that (i) relate to the employer's business or actual or demonstrably anticipated research or development, or (ii) result from any work performed by the employee for the employer. To the extent a provision in an employment agreement purports to apply to the type of invention described, it is against the public policy of this State and is unenforceable. The employee shall bear the burden of proof in establishing that his invention qualifies under this section.

From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Christine L. Sundt Sent: Friday, August 12, 2005 4:55 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: "University as author?"

In some fields (in the sciences, for example), work done for the university (research, writing) takes place on campus, during ‘normal working hours’, and using facilities and equipment provided by the university or grants gotten in the name of the university. In many others (humanities and arts for starters), work that ultimately leads to promotion and tenure takes place after teaching and committee work is finished, usually at home, in the middle of the night, using personal equipment. So can the university claim to own this work, too?  

Christine L. Sundt
Visual Resources Curator
University of Oregon
Architecture & Allied Arts Library
Lawrence Hall - Room 300
1190 Franklin Boulevard
Eugene, OR 97403-5239 - U.S.A.  

v: 541/346-2209
f: 541/346-2205
email: csundt[_at_]uoregon.edu (or csundt[_at_]mindspring.com) Copyright & Art Issues - http://uoregon.edu/~csundt/copyweb/  

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org]On Behalf Of Steven Jamar Sent: Friday, August 12, 2005 8:21 AM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] 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  

-- 
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Howard University School of Law fax: 202-806-8428
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