Re: "University as author?"

Jurisdictions vary on the status of an employee handbook. The status also depends on how it is treated by the university itself and whether it is a private school or a state school affects matters -- state employers have different rules governing them oftentimes than do private employers.

Steve

On Aug 18, 2005, at 4:40 PM, Janet Nepkie wrote:

> I know of at least one large state university in which the
> employees’ union is relying upon the fact that the Board of
> Trustees Policies grant, in general, copyright ownership to the
> employee authors. It seems to me that Foraste v. Brown does not
> support that idea.
>
> I am not, however, a lawyer, so I would be glad to hear from some
> one whose professional practice would live insight to this question.
>
> In Foraste v. Brown, the court said that university policies (in
> this case, a Faculty Handbook) do not rise to the level of a
> contract or an express agreement signed by both (or all) parties
> required by the work for hire language of Title 17.
>
> The judge said “It is a bedrock principle that ‘when the
> [statutory] text's meaning is plain, courts are obligated to
> enforce the provision as written. [**26] " Desilets v. Wal-Mart
> Stores, Inc., 171 F.3d 711, 714 (1st Cir. 1999) (citing United
> States v. Rivera, 131 F.3d 222, 224 (1st Cir. 1997)). The language
> of the work made for hire doctrine could not be clearer: it
> requires the parties to make an express agreement, memorialized "in
> a written instrument signed by them.’ 17 U.S.C. § 201(b)”
>
> JOHN FORASTE, Plaintiff, v. BROWN UNIVERSITY and LAURA FREID,
> Defendants.
>
> C.A. No. 01-434S
>
> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
>
> 248 F. Supp. 2d 71; 2003 U.S. Dist. LEXIS 3715; 74 U.S.P.Q.2D (BNA)
> 1914
>
>
> March 7, 2003, Decided
>
> ---------------
>
> Thanks,
>
> Janet Nepkie
>
>
>
> Dr. Janet Nepkie
> Professor of Music and Music Industry
> Music Department
> State University of New York
> College at Oneonta
> Oneonta, N.Y. 13820-4015
> Phone (607) 436 3425
> Fax 607 436 2718
>
>
>
> From: Kevin Smith <ksmith[_at_]defiance.edu>
> Reply-To: CNI-COPYRIGHT -- Copyright & Intellectual Property <CNI-
> COPYRIGHT[_at_]cni.org>
> Date: Thu, 18 Aug 2005 15:29:15 -0400
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property <CNI-
> COPYRIGHT[_at_]cni.org>
> Subject: [CNI-(C)] Re: [CNI-(C)] "University as author?"
>
> Given the language in section 201(b) that makes the employer the
> author of a WFH "unless the parties have expressly agreed otherwise
> in a written instrument signed by them," does any one else worry
> that many university policies would not be effective, even if they
> purport to give the rights to the faculty member? If the
> university later decided to claim ownership anyway, would the
> policy be effective if it were simply a statement contained in a
> faculty handbook, for instance, not an instrument signed by both
> parties? I am not saying that would be good policy for a
> university, just wondering what weight a court might actually give
> the policy in those circumstances.
>
> Kevin L. Smith, M.A., M.L.S., J.D.
> Director, Pilgrim Library
> Defiance College
> 201 College Place
> Defiance, OH 43512
> 419-783-2482
> ksmith[_at_]defiance.edu
>
> ----- Original Message -----
>
> From: Steven Jamar <mailto:sjamar[_at_]law.howard.edu>
>
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property <mailto:CNI-
> COPYRIGHT[_at_]cni.org>
>
> Sent: Wednesday, August 17, 2005 6:25 PM
>
> Subject: [CNI-(C)] Re: [CNI-(C)] "University as author?"
>
>
>
>
>
> On Aug 17, 2005, at 5:25 PM, Agenbroad, James ((Civ,ARL/CISD)) wrote:
>
>
>
>
>
>
>
> 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
>
>
>
> --But unless they explicitly have a policy granting copyrights to
> the faculty, what difference do their claims make? Of course the
> fact that they generally have ZERO editorial input to academic
> works published by their faculty would IMHO argue against a WMFH
> situation. -Jim.
>
>
> But editorial input by an employer is not directly relevant to the
> WMFH category relating to employees. All that matters in such a
> situation is the scope of the employment. In deciding the scope
> of employment, a court might look at the amount of editorial input
> by the employer, but that is a weak factor as compared to the
> requirements of the job. If I work for a newspaper and my job is
> to write articles for the newspaper, then even if there is no one
> who has any editorial input in what I write, it is still a wmfh
> under the employee category. Editorial input is not the test.
> The test is scope of employment.
>
>
>
> All schools with which I am familiar have a written policy now
> concerning faculty copyright and IP in general.
>
>
>
> Steve
>
>
>
>
>
>
> --
>
>
> 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 aim of education must be the training of independently acting
> and thinking individuals who, however, see in the service to the
> community their highest life achievement."
>
>
>
>
>
> Albert Einstein
>
>

-- 
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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