Re: NIH Public Access Mandate Passes Senate

[Sandy Thatcher <sgt3@psu.edu>]

It has always been my understanding that the law allows for 
universities to define all faculty writing that is done in 
relation to the work for which they are paid (e.g., scholarly 
monographs and journal articles tied to their career advancement, 
or textbooks tied to their role as teachers, in contrast, say, 
with a novel they might write for fun and profit on the side) as 
"work made for hire," and indeed that there have been a few 
attempts by universities to so define faculty writing. Generally, 
however, academic "tradition" has led universities not to make 
this kind of claim, and when it has been attempted, it is met 
with stiff resistance from faculty. The one area where 
universities have tried more vigorously to assert ownership 
rights is courseware, though this is not always done via the 
"work made for hire" definition.

Sandy Thatcher
Penn State University Press

> I can't speak to the bill's expectations regarding a veto, but I 
> am troubled that none of the questions that are at the center of 
> this discussion (center as defined by yours truly) have come up 
> anywhere that I have seen.  So, my list of questions:
>
> 1.  Do you believe an author should have the right to ownership 
> of his or her own work?  That right would include the ability to 
> charge for access if anyone is interested in participating in a 
> market.  Or should an author (at least of scholarly materials) 
> have no presumption that he or she owns his written work?
>
> 2.  If you are comfortable with #1 (that is, you support an 
> author's choice to assert traditional copyright), do you believe 
> an author should be able to transfer that right to another 
> entity, whether a publisher or any other institution?  Does an 
> author have the right to enter into a contract concerning his 
> copyrights?
>
> 3.  Most academic authors do their work while being compensated 
> by others--a university, for example, or a grant-giving body. 
> Should that fact alone (being paid to write up research) be 
> sufficient reason to assert that the copyrights belong to the 
> funding body?  In effect, is an academic author's writing a work 
> for hire under the copyright law?  (A corporate employee who 
> writes materials or software or whatever does so as work for 
> hire.)
>
> 4.  If you take the position in #3, should the work-for-hire 
> status extend to other intellectual property created while in 
> the employ of a university? Patents?  Textbooks?  If textbooks 
> (which in some instances literally provide hundreds of thousands 
> of dollars in royalties to authors who teach at universities) 
> are to be covered by work-for-hire, how will this policy be 
> introduced to faculty?  Also, how would you handle related 
> activity such as consulting?  Is this all work for hire?
>
> The principle that sits behind all these questions is that of 
> authors' rights.  The open access movement is all about readers' 
> rights, but should an author have the right to own the fruits of 
> his own labor and the right to contract for the sale of that 
> work?
>
> Incidentally, while I personally lean toward points ##1 and 2, 
> the case for #3 is not unreasonable.  I simply can't square it 
> with #4. Someone else may have the privilege of telling the 
> faculty of the Stanford Business School that they have to turn 
> over their consulting income (including stock options) to the 
> university.
>
> Best,
>
> Joe Esposito