Re: Re: "University as author?"

Yes. The question under the code as written is what is the scope of your employment? That is, what are you hired to do? It is not where you do it or on whose computer. We are hired to teach, do service (administrative work), and scholarship (research, create, write, publish). That is the scope of our employment in general, unless you have a contract that excluded one of the three legs or more.

But, every school I know of by contract makes the owner of the copyright the faculty member rather than the university (I've not done a formal survey of this, though). The opposite rule applies for patents.

Steve

On Aug 12, 2005, at 4:55 PM, Christine L. Sundt wrote:

> 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
>
>
>
> --
>
> Prof. Steven D. Jamar vox: 202-806-8017
>
> Howard University School of Law fax: 202-806-8428
>
> 2900 Van Ness Street NW mailto:sjamar[_at_]law.howard.edu
>
> Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
>
>
>
> "The only things truly worth doing cannot be accomplished in a
> single lifetime."
>
>
>
> Prof. Goler Teal Butcher, after Reinhold Neibuhr
>
>
>
>
>

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:sjamar[_at_]law.howard.edu
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/

"The modern trouble is in a low capacity to believe in precepts which  
restrict and restrain private interests and desires."

Walter Lippmann