RE: "University as author?"

I have had some experience in this area. Note that at least some universities actually do have faculty sign an IP agreement, and do not rely on a Faculty Handbook unsigned by either party.  

Roland J. Cole, J.D., Ph.D.

Executive Director

Software Patent Institute

5315 Washington Blvd

INDIANAPOLIS IN 46220-3062 317-727-8940; cole[_at_]spi.org; www.spi.org

From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Janet Nepkie Sent: Thursday, August 18, 2005 3:41 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] "University as author?"  

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>
<mailto:sjamar[_at_]law.howard.edu>
 

To: CNI-COPYRIGHT -- Copyright & Intellectual Property
<mailto:CNI-COPYRIGHT[_at_]cni.org> <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/



 

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