Re: L.Rev (C) Release

On Thu, 11 Nov 1999, Harold Federow <haroldf[_at_]bsquare.com> wrote:
>
> 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.

But that is not how I read the Act. Rather, the employer is the "Author" and the faculty member is not. The faculty member (IMHO) has no legal initial claim to the copyright, even if the "license" is disclaimed. Rather, if the copyright by the employer is disclaimed, then I would think that it would go into the PD, and not to the faculty.

Sure, Congress could have written that provision as in essence granting the employer a license - something on the order maybe of a shop right. But it didn't. Rather, it made the employer the statutory "Author" and the employee not.

> 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).

I think that a stretch, but clearly better than your first theory. But then you get into all of the notice provisions and the like. For example, will the Copyright Office accept a university policy for assignment purposes? Maybe, but I doubt it. So, what happens when the school goes off and assigns it elsewhere (exclusively) and that person properly records the assignment with the Copyright Office? Who is going to win? If the "Policy" is not registered as an assignment (which it invariably is not), then I would think that a court would have to bend the law to give the faculty the win.

Of course, you are assuming that there is a signed offer of employment, and that the policy has not changed since then.

-- 
--------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 1999 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
--------------------------------------------------------------------
Bruce E. Hayden                      bhayden[_at_]acm.org
Phoenix, Arizona                     bhayden[_at_]ieee.org
                                     bhayden[_at_]copatlaw.com