Re: Princeton bans academics from handing all copyright..

[Kevin Smith <kevin.l.smith@duke.edu>]

I am sorry if my post was not clear, but no hyperbole, or even 
controversy, was intended.

It is, of course, perfectly possible for a university to claim 
faculty works as work made for hire.  Indeed, many schools do 
make this claim over certain types of works, but it is fairly 
rare to assert work for hire over traditional works of faculty 
scholarship like journal articles.  Staff work is often treated 
differently. But in any case, my point was that a work for hire 
claim by the employing institution is very different from a 
self-imposed non-exclusive license granted to the university by 
the faculty authors themselves, who must be the copyright holders 
in order to do so.

As a member of my university's intellectual property board, I can 
assure you that I perceive no desire at all to assert work for 
hire over faculty scholarship.

As for the comment about publishers wishing to thwart open access 
policies, I can simply refer you to the new "author rights" 
policies adopted by Elsevier and the American Chemical Society. 
Elsevier especially is very clearly trying to discourage faculty 
open access policies, attempting to grant more generous rights to 
authors at schools without such policies. Such new rules from 
publishers, of course, would not be needed if faculty work was 
all work for hire, but these publishers clearly understand that 
this is not the case.  There may be exceptions, but making those 
exceptions into an argument against the general point is not 
helpful.

Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
P.O. Box 90193
kevin.l.smith@duke.edu


On Sep 30, 2011, at 9:17 PM, "Anthony Watkinson" 
<anthony.watkinson@btinternet.com> wrote:

> Dear Kevin
>
> You are a great one for hyperbole.
>
> At least some universities in the UK claim copyright in any work
> done on machines either owned or maintained by the university and
> acceptance of this is now enshrined in staff contracts. I cannot
> see how publishers in this context are thwarting expressions of
> authorial rights. It looks rather to me that it is what
> university employers would like to do. I write as someone in a
> university which does not have any claims of this sort in the
> contract of employment but which has (I am told) got a mandate
>
> Anthony Watkinson
> University College London
>
> -----Original Message-----
> From: owner-liblicense-l@lists.yale.edu
> [mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Kevin Smith
> Sent: 29 September 2011 23:47
> To: "liblicense-l@lists.yale.edu"@lists.yale.edu
> Subject: RE: Princeton bans academics from handing all copyright to journal
> publishers
>
> Having looked at the actual language, I think the operative terms
> are essentially the same as Harvard's (and Duke's), although the
> way it is being discussed seems quite different.
>
> In all such policies the university is given a license in the
> works that is prior to any copyright transfer to a publisher.
> Technically, therefore, the rights that are transferred are
> subject to that license; hence the language of "banning" the
> wholesale transfer of copyright used by Princeton. The
> differences amongst universities come in implementation.  Will
> some universities elect to act in a way that is contrary to the
> terms of the publication agreements the authors enter into (by
> posting articles or versions of articles where the publication
> agreement purports not to permit the specific posting)?  Doing so
> would seem to be legally permissible under the claim of a prior
> license, but it could also put the faculty members in a difficult
> position unless they are very careful about what they sign (as
> they should be but seldom are).
>
> An alternative is for the university to exercise the license in a
> more nuanced way, taking into account the various publisher
> policies as much as possible.  That, of course, makes open access
> repositories much more labor-intensive and difficult, especially
> as publishers change their policies to try a thwart these
> expressions of authorial rights.
>
> Kevin L. Smith, M.L.S., J.D.
> Director of Scholarly Communications
> Duke University, Perkins Library
> Durham, NC 27708
> kevin.l.smith@duke.edu