Re: L.Rev (C) Release

On Wed, Nov 10, 1999, Bruce Hayden <bhayden[_at_]ieee.org> wrote:
>
> On Tue, 9 Nov 1999, Harold Federow <haroldf[_at_]bsquare.com> wrote:
> >
> > On Mon, Nov 08, 1999, Bruce E. Hayden <bhayden[_at_]ieee.org> wrote:
> > >
> > > But is this really sufficient to take things out of work for hire
> > > situation? Possibly if you view these rules as defining what is
> > > within the scope of employment for faculty, but then again, there
> > > is always the argument that you make below -- that they are hired
> > > to teach, research, and write. If that is the case, then at best
> > > I would think that the school policies would work to create a
> > > limited license to the faculty to license their works.
> >
> > I think of it more as the University waiving its rights as an employer.
>
> But reading the Copyright Act, I failed to see the place there
> that stated that this would work. Rather, the Copyright Act seems
> to me to require that ownership of the copyright in a work-for-hire
> be with the statutory author (the employer) until and unless
> there is a written assignment (or the work falls into one of
> a specific small number of specific types of works).
>
> The problem to me is that the 1976 Copyright Act started the
> process, and the joining of Berne completed the process of
> making copyright in the U.S. automatic. It just happens.
> The author doesn't need to do anything at all to get it.
> No more marking. No more registration. All you have to do
> is create a work of original expression, and if you do not
> work for the U.S. government, then the work is protected by
> copyright.

I agree 201(b) seems to be a problem.

Perhaps if we think of it this way: The Copyright Act works an automatic assignment in favor of the employer. However, the employer has the right to refuse the assignment (on analogy with the way an heir can disclaim an inheritance or someone can refuse a gift) and that is what the university policy does in the process of setting out the terms of employment. The source of the right to refuse the assignment is not the Copyright Act.

Or: there is clearly a writing -- the university policy. Equally clearly both sides agree to it -- the university because it's the U's policy, the faculty/staff member because he/she continues to work there. Typically by signing up to work at a university you also sign up to their policies & procedures, one of which is the copyright policy. Maybe that's enough to comply with 201(b).

Harold Federow
<haroldf[_at_]bsquare.com> Received on Thu Nov 11 1999 - 16:53:40 GMT