RE: NIH mandate - institutional repositories

[Sandy Thatcher <sgt3@psu.edu>]

Why not go one step farther? Current copyright law certainly 
allows universities to declare that any writing done by their 
faculty "within the scope of their employment" (which would 
include all writing of textbooks, journal articles, and 
monographs, which are all relevant to their career advancement) 
should be considered as "work made for hire," which would place 
legal ownership of copyright with the university as employer and 
put the university in a position to do anything it wished with 
academic work, including giving it all away for free. Talk about 
a mandate: this would be a super mandate! Universities themselves 
would be in a position, as large entities, to bargain with major 
commercial publishers and to insist that contracts are written in 
a way satisfactory to universities' needs. There would be no need 
for NIH legislation for the Federal Research Public Access Act.

Of course, I don't think for a second that faculty will allow 
their universities to exercise this right under copyright law, 
because the tradition of allowing faculty to claim copyright in 
their writings has been of such long standing. But it is a 
peculiarity of our current situation that universities loudly 
complain about copyright law's having lost its "balance" between 
rightsholders' and users' needs, with the result that such 
patchwork solutions as addenda to author contracts are now 
recommended, when in fact that very law as it exists now gives 
universities the power to solve all of their problems by one 
stroke of the pen, so to speak, taking advantage of the 
definition of "work made for hire" in Section 101 to stipulate 
all faculty work in their capacity as faculty as falling under 
that definition.

Who are their own worst enemies? Universities, as usual!

Sandy Thatcher
Director, Penn State Press

***

Aaron Edlin wrote:

> My own thinking, and the philosophy of bepress, is that the
> university is filled with many interests and constituencies.
> The puzzle is getting them to work well together. Faculty seek to
> promote themselves individually, and seek control and identity;
> universities seek to promote themselves and grow; librarians seek
> to create useful order from chaos. These goals can, but need not,
> conflict.
[SNIP]