Re: "University as author?"

Company time is just one factor, not a full determinant. People on salary are sometimes considered to be always on company time.

The question still is "scope of employment." Faculty are hired to teach, research, write, counsel, and administer and do service work. That is the scope. When and where is relevant, but not a determinant and not even the most relevant factor for most faculty.

Don't get misled by a narrow discussion about a part of a test as constituting the whole test. The test for whether one is an employee or independent contractor is a multi-factor tests, some states list 11 or so factors to consider and then say "and all the circumstances."

Scope of employment is similarly subject to a multi-factor, all-the- circumstances kind of test, including such factors as job description, actual practice, where the work is done, on whose equipment, and so on.

One reason we have juries is to decide these sorts of fact issues.

Nonetheless, in general, faculty are required to publish -- or perish. And that is a job requirement. And that puts it within the scope of employment no matter where it is done or even when.

Now, if one is on a 9 month contract and does all of the work under grants from entities other than the university and so on, then the university's case grows progressively weaker -- factually. Even if it is required that you do something, if the university does not care how or who pays for it or when it is done, you have a better shot at it not being within the scope.

Once again, we must attend carefully to several distinctions: what does the law require, what does the law allow, what is a fact- sensitive issue, and what is sensible as a matter of policy. These are not the same questions and the continuing conflation of them leads to mushy and messy (mis)understandings.

And to repeat the refrain once more -- most schools do not claim copyright in the academic or artistic or even prosaic things like class prep notes and such works of its faculty. But most do claim patent in inventions of faculty.

Steve

On Aug 16, 2005, at 5:30 PM, Richard Wiggins wrote:

> For a university professor, this "done on company time" idea is a
> chimerical concept. "Company time" for a professor is when his or
> her classes are in session, his or her scheduled office hours, and
> scheduled events such as departmental meetings. Of course, if you
> are department chair or head of an institute, your work schedule is
> much more constrained, but many professors come and go as they
> please outside their specific teaching and research obligations.
>
> If a professor prepares Powerpoint for tomorrow's class at 3:00
> a.m. or works on the next great textbook at noon, how does that
> relate to the university's interest in his or her work?
>
> I work at a major midwestern university, and have many a time
> walked down the halls of professors' offices at various times of
> the business day, and most of the offices are dark. I have not
> noticed a variation among hard science versus humanities.
>
> I just don't see how "company time" illuminates this discussion.
> Professors just don't work rigid 9 to 5 schedules. Would someone
> please defne "company time" for a university professor?
>
> /rich
>
>
> On 8/15/05, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> > ...or done on company time.
>
> "done on company time" is one of the factors to consider to determine
> whether it was within the scope of employment or whether the writer
> is an
> employee, not an independent test in and of itself.
>

-- 
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/

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