Sandy,
I'm afraid you misunderstand U.S. copyright law. Universities
do not have an option to unilaterally declare faculty
scholarship as works made for hire, and it may be that faculty
can do nothing about the copyright status of their works.
There is legal uncertainty about which interpretation of the
1976 Copyright Act is correct, but it is either the case that
universities are the authors of their faculties' scholarship
for copyright purposes or the faculty members are. No options
on either side.
The copyright consequence of a work being made for hire is that
the employer is the author and copyright vests initially in the
author. The problem is that the work made for hire doctrine was
a judge-made doctrine under the 1909 Act that Congress codified
in the 1976 copyright revision. Under the prior law, the
courts had recognized a "teacher exception" to the work made
for hire by which teachers were treated as the authors of their
teaching materials and scholarship. However, the language and
the legislative history of the 1976 Act make no mention of the
teacher exception or any other exceptions. So the legal
question is whether Congress meant to preserve the teacher
exception impliedly or whether Congress changed the law by
enacting a text that makes no exceptions. There are judicial
opinions that go both ways.
Publishers should be worried about the consequences if a test
case were brought to squarely resolve the issue. If faculty
journal articles are works made for hire, then there's a real
question about whether publishers have any ownership of
copyright in their backlists. Under copyright law, to transfer
exclusive rights, there must be a writing signed by the author.
If the university is the author, publishers only get
*exclusive* publication rights if a university official with
authority to bind the university were to sign the journal
publication agreements. Most faculty do not have signature
authority to act on behalf of the university for purposes of
transferring rights in property. (For example, I'm sure I
could not sell my office furniture on eBay!) So, if faculty
scholarship were declared to be works made for hire, then
there's a very real risk that publishers would be deemed to
have only *non-exclusive* publication rights.
Best,
Michael W. Carroll
Professor of Law
Villanova University School of Law