Pat has a better memory than I do. I don't remember the details of the case
to which he was referring, but I thought the section on creation of distance
learning materials in our new collective bargaining agreement might be of
interest. It's attached.
----- Original Message -----
From: "Pat Cihon" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Tuesday, January 16, 2007 5:31 PM
Subject: Re: training materials ownership
Regarding John's comments, here are the words of Judge Posner in
Hays v. Sony Corp. of America, 847 F.2d 412 (C.A.7 1988):
. . . Section 201(b) of the Copyright Act provides that "in the case of a
work made for hire, the employer or other person for whom the work was
prepared is considered the author ... and, unless the parties have expressly
agreed otherwise in a written instrument signed by them, owns all of the
rights comprised in the copyright." Since one of the definitions of "work
made for hire" is "a work prepared by an employee within the scope of his or
her employment," 17 U.S.C. § 101; since the plaintiffs were employees of the
school district; and since there is no signed (or other) writing that
purports to entitle them to copyright a work for hire, the conclusion may
seem inescapable that their manual was a work for hire and the copyright was
therefore owned by the school district.
Until 1976, the statutory term "work made for hire" was not defined, and
some courts had adopted a "teacher exception" whereby academic writing was
presumed not to be work made for hire. See Dreyfuss, The Creative Employee
and the Copyright Act of 1976, 54 U.Chi.L.Rev. 590, 597-98 (1987). The
authority for this conclusion was in fact scanty, as explained in Simon,
Faculty Writings: Are They "Works for Hire" Under the 1976 Copyright Act?, 9
J. College & University L. 485, 495-99 (1982)--but it was scanty not because
the merit of the exception was doubted, but because, on the contrary,
virtually no one questioned that the academic author was entitled to
copyright his writings. Although college and university teachers do academic
writing as a part of their employment responsibilities and use their
employer's paper, copier, secretarial staff, and (often) computer facilities
in that writing, the universal assumption and practice was that (in the
absence of an explicit agreement as to who had the right to copyright) the
right to copyright such writing belonged to the teacher rather than to the
college or university. There were good reasons for the assumption. A college
or university does not supervise its faculty in the preparation of academic
books and articles, and is poorly equipped to exploit their writings,
whether through publication or otherwise; we may set to one side cases where
a school directs a teacher to prepare teaching materials and then directs
its other teachers to use the materials too.
The reasons for a presumption against finding academic writings to be work
made for hire are as forceful today as they ever were. Nevertheless it is
widely believed that the 1976 Act abolished the teacher exception, see
Dreyfuss, supra, at 598-600; Simon, supra, at 502-09; Weinstein v.
University of Illinois, 811 F.2d 1091, 1093-94 (7th Cir.1987)--though, if
so, probably inadvertently, for there is no discussion of the issue in the
legislative history, and no political or other reasons come to mind as to
why Congress might have wanted to abolish the exception. To a literalist of
statutory interpretation, the conclusion that the Act abolished the
exception may seem inescapable. The argument would be that academic writing,
being within the scope of academic employment, is work made for hire, per
se; so, in the absence of an express written and signed waiver of the
academic employer's rights, the copyright in such writing must belong to the
employer. But considering the havoc that such a conclusion would wreak in
the settled practices of academic institutions, the lack of fit between the
policy of the work-for-hire doctrine and the conditions of academic
production, and the absence of any indication that Congress meant to abolish
the teacher exception, we might, if forced to decide the issue, conclude
that the exception had survived the enactment of the 1976 Act. A possible
textual handle may be found in the words of section 201(b), quoted earlier,
which appear to require not only that the work be a work for hire but that
it have been prepared for the employer--which the Hays-McDonald manual may
or may not have been.
We need not try to decide the issue in the present case, for even if the
statute abolished the teacher exception this would not necessarily spell
victory for Sony. . . . The plaintiffs' employment contracts with the
school district contain no reference to copyright, but the district judge
was wrong to infer from this omission that anything the plaintiffs wrote on
school time for school purposes was necessarily a work made for hire. .
. . The work-for-hire doctrine, which assigns copyright to the employer in
the absence of a contractual specification, does not come into play until it
is determined that the work was one made for hire--a determination which
cannot be based on the silence of the employment contract concerning who has
the right to copyright the employee's writings. . . . [End of quote]
* * * * * *
It could be argued that the training materials here are not in the
same nature to normal class notes and the the usual academic writings --
books and articles -- that faculty are expected to create in the course of
their employment. Posner's rationale for the teacher exception to the work
for hire is more appropriate to the usual academic writings and class
notes -- and not to materials that are the subject of a separate arrangement
for pay (as the training materials here).
I recall Susan L. Martin from Hofstra mentioning (at an ALSB meeting
a few years back) that a similar issue had arisen there -- and that
ultimately the unversity recognized that the faculty had the property rights
in materials prepared for distance learning or on-line courses.
If you're out there, Susan -- what were the arguments that
persuaded the university to drop their copyright claims?
Pat Cihon
>>> [log in to unmask] 1/16/2007 4:42 PM >>>
Unless the judicially created "teacher's exception" for university
faculty to the WFH doctrine survived the 1976 Copyright Act, as two 7th
Cir. decisions have held.
John
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk
[mailto:[log in to unmask]] On Behalf Of Pat Cihon
Sent: Tuesday, January 16, 2007 3:28 PM
To: [log in to unmask]
Subject: Re: training materials ownership
It seems to me, that because the university paid a fee for the
development of the materials, they could claim that it was a "work for
hire" and thus the property of the employer.
Pat Cihon
>>> [log in to unmask] 1/16/2007 2:09 PM >>>
Linda:
This link, surely, contains out of date material, but its
preference for the faculty claim is strong.
http://cba.unomaha.edu/faculty/mohara/web/yellow.htm
Subsequently, this morphed into the following publication.
"A Quandary for Information Technology: Who Controls the Content of
Distance Education." Journal of Information Systems Education. Winter
2000. Refereed. Jointly authored with Dr. D. Peak (then) of UNO ISQA
(now
of University of North Texas).
In short, if there was a prior, written, and signed contract
allocating ownership rights in the copyrights, then the answer is
clear.
If not, then not.
You may predict, with little fear of contradiction, that the
university lawyers will claim ownership rights that are sufficiently
broad
(let's be gracious in our phraseology) as to be defensible claims, if
not
claims based upon colorable title. Unless some deep pockets are
seeking
to fund enforcement of "principles", try to keep an eye on the relative
magnitudes of the monetary values involved. If the fair market value
of
these faculty works is, let us be generous, $100,000; then try not to
expend more than $200,000 in good will protecting that claim. All
future
creations are quite likely to be initiated with a prior, written, and
signed contract allocating ownership rights in the copyrights.
Michael
Professor Michael J. O'Hara, J.D., Ph.D.
Finance, Banking, & Law Department Editor, Journal of
Legal
Economics
College of Business Administration (402) 554 - 2014 voice
fax
(402) 554 - 3825
Roskens Hall 502 www.AAEFE.org
University of Nebraska at Omaha www.JournalOfLegalEconomics.com
Omaha NE 68182 http://nbdc.unomaha.edu/aaefe
[log in to unmask]
(402) 554 - 2823 voice fax (402) 554 - 2680
http://cba.unomaha.edu/faculty/mohara/web/ohara.htm
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