There is something particularly galling for a scholar about having her article described as “work for hire.”  It implies a lack of academic freedom and even a “hired pen” approach to scholarship.  Most universities, which actually might have a strong case if they claimed faculty works as “works made for hire,” long since decided that the obvious ill-will and hassle that would attend such claims made them unpalatable.  OUP, on the other hand, does not seem to have learned the same lesson or, in fact, to even understand the law correctly.

I have to say first that I do not know how widespread this practice is, even within OUP.  This is the first time I have heard of this situation.  It may apply only to essays written for inclusion in collected, thematic volumes.  Or it may just be a test foray into a really bad idea.

By way of introduction, it is important to note that there are two ways for a work to be a work for hire.  First, it can be a work created by a regular employee within the scope of his or her employment.  That definition could likely fit faculty writings, but it has almost never been used to contest faculty ownership.  Alternatively, a work by an independent contractor — someone who is not a regular employee — can be a work for hire if two conditions are met.  First, the work must fall into one of nine categories enumerated in the law.  And second, there must be an express, written and signed agreement between the employer and the contractor “that the work shall be considered a work made for hire.”

OUP obviously hopes to take advantage of the second path to work for hire, since the first one would not apply.  A “contribution to a collective work” is one of the permissible categories for independently contracted  works made for hire.  But I think OUP has a big problem meeting the second requirement.

It is important to note also that the effect of work for hire is the same in either situation –  the employer is designated the “author” from the moment the work is created.  The person who actual puts pen to paper, as it were, has no rights at all in the work.  That fact probably explains some about why OUP would make this foolish move, and it is also part of the reason why their attempt to turn faculty writings into work for hire is likely to fail.

As to why OUP would do this, I think there are a couple of legal benefits for authors that OUP hopes to avoid having their contributors enjoy.  One would be the termination right, which allows an author or other creator to terminate a transfer of copyright after thirty-five years, regardless of the terms of the original contract.  This right, while it may seem obscure, has recently gotten attention as the legal window through which composers and performers of profitable music from the late 1970′s has just opened.  The one way to prevent an author from terminating a transfer of rights is to own the work as a work for hire, so that no transfer was ever required.  I suspect some legal beagle at OUP saw the controversies over music and thought this might be a good idea.  It is not.

The other thing that having these contributions classified as work for hire would prevent would be prior licenses.  As more faculties adopt open access policies, which usually take the form of a prior license to the institution for repository deposit, the possibility arises of an eventual contest between a prior license contained in such a policy and a later transfer of the copyright through a publication contract.  OUP may be test-driving an idea for avoiding that situation — if the faculty author is classified as a non-author by the work for hire doctrine, they would be unable to grant any prior licenses, since they never held any rights.

So why do I think this move is stupid, and doomed to fail?  Three reasons.

First, nothing is more surely designed to make faculty authors angry than to tell them they are not the authors of the scholarship they offer to publishers.  As a group, faculty authors have been pretty docile toward publishers for a long time, but foolish and tone-deaf moves by publishers have begun to stir faculty anger toward presses they once considered friends and colleagues.  If a claim like this, which denies the fundamental dignity of authorship to scholars, becomes widespread, that slow rebellion will speed up very quickly.

Second, in the work for hire battle, presses are likely to lose.  As I said above, universities could, if they choose, assert a convincing case that faculty are regular employees whose writings are created within the scope of their employment.  Were OUP really to assert its WFH claim to defeat a prior license, the institution could claim that, as the regular employer of the scholar, it was the author and so the agreement with OUP would be void as outside the ability of the faculty member to sign.

Finally, and most importantly, there are two cases in the U.S. courts that have held that, in an independent contractor situation, an agreement designating the work as a work made for hire must be signed, or at least formed (meaning that both parties understood), prior to the creation of the work.  There is an excellent discussion of those cases on the website of copyright attorney Ivan Hoffman.  By making the work for hire provision part of a submission agreement, OUP would be unable to show that such an agreement would even have been contemplated by the author, much less agreed to.  So this is a move which can only have negative consequences for OUP.  The cost in bad feeling is very high, and it cannot, I don’t think, succeed as a legal maneuver, even if OUP thinks it is worth that high cost.

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, which has received a lot of attention.  I wanted to point out, however, that this rhetoric about a “ban” did not come from Princeton itself, but from a single blogger, to whose post all the stories that use that language point.  That blogger has now changed the post, including a quote from a Princeton official saying that the faculty is not being “banned” from anything.  Even the URL has changed; the corrected version of the post is here.

The differences amongst universities regarding these policies come in implementation.  Some universities may 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.  How Princeton will actually implement its policy is still an open question, since they do not yet have a repository of their own.

Earlier today I received an inquiry about the Princeton policy from a colleague at another university.  To what degree, he asked, is this similar to the university simply claiming that scholarly articles are work made for hire?  My answer, of course, was that these policies are the very opposite of an institutional claim of work for hire.  If that were done, in fact, no such license would be necessary.  But these policies are founded on faculty ownership and express the desire of a faculty, as copyright owners, to manage their rights in a more socially and personally beneficial way.  It is important to note that the open access policies now in place at a couple of dozen U.S. institutions have all been adopted by the faculties themselves; they decided to grant a non-exclusive license to the university, which, again, they could not do except as copyright owners.

Probably the most important fact about these policies, indeed, is that they represent an assertion of authorial control.  We so often hear publishers and others in the content industry talk about protecting copyright, by which they usually mean the rights they hold by assignment from a creator, that it is salutary to remind academics that they own copyright in their scholarship from the moment their original expression is fixed in tangible form.  Transferring those rights to a publisher is one option they have, and it has become a tradition.  But it is only one option, and the tradition is beginning to be questioned, as this recent article from Times Higher Education and this one from Inside Higher Ed forcibly demonstrate.

Open access policies are not, at their root, either “land grabs” by institutions or acts of defiance aimed at publishers.  They are simply a recognition of the fact that authors are the initial owners of copyright, and they express a desire by those owners to manage their rights intentionally and in a way that most clearly benefits the goals of scholarship.

A comical element was introduced into our consideration early on, when we realized that the two different policies imposed directly opposite requirements for self-archiving.  The ACS only allows an author to self-archive their final manuscript if doing so is mandated by her institution, while Elsevier only allows it if it is not.  So on each campus the policies must be evaluated and one publisher or the other declared off limits.

In general these publishers’ statements about author rights are confusing and self-contradictory.  It seems clear that the intent of these statements, policies and contracts is not to clarify the authors’ obligations so much as it is to confuse and intimidate them.  At one point we asked ourselves why we were spending so much time poring over these badly drafted documents, and we realized that we were doing it because we are concerned not to let our faculty authors put themselves into difficult positions.  What is clear is that these publishers have no such concern; they are trying to make authors pawns in their effort to dictate campus policies.

We have to start our evaluation of the position that Duke authors would be in, vis-à-vis these publishers, by asking ourselves what exactly the Duke Open Access policy is.  From its inception we have maintained that it is not a mandate.  Although the policy grants Duke a license to archive the works written by its faculty, there is no requirement or assertion that it will be universally exercised.  The license is fully waivable and it was adopted with the commitment that its implementation would not involve Duke authors in conflicting obligations.  What the policy most clearly represents is a strong statement that Duke authors want to make their own works as accessible as possible to the largest number of people.

So if this is what we think our policy is, how does it interact with the crazy quilt of rules imposed by these two publishers?  Regarding the American Chemical Society, our conclusion was that Duke’s policy is simply incompatible with publication in an ACS journal.  ACS only allows an author to self-archive if there is an institutional or funder mandate that they do so, and Duke does not mandate such behavior.  ACS authors are treated here with little consideration; their right to make individual decision about their own best interests is simply not respected.  So we will communicate to our authors who write for ACS journals that they may not exercise the policy decision that they made 18 months ago because their scholarly society has told them not to.  We will ask them to make their unhappiness with this interference with their freedom to determine academic policy known to the ACS.

Elsevier presents a more difficult case.  There are multiple policy statements out there, and they are not particularly consistent.  It is also not clear which statements will actually end up incorporated in author contracts.  What is clear is that Elsevier wants to dictate what policies our faculty can and cannot adopt for itself, which certainly raises the issue of how willing authors will be to surrender the idea of academic freedom.

But our bottom line is that these statements are ineffective in changing our approach at Duke.  In a statement sent to the lib-license email list, Alicia Wise of Elsevier tried to explain the new policy by emphasizing that authors would still be able to voluntarily post their final author manuscripts. Only a “mandate” triggers the restriction on author self-posting, according to Ms. Wise.  Although there is language in some of the Elsevier documents that suggests otherwise, we are inclined to take Ms. Wise at her word.  Our policy is not a mandate, and author participation is entirely voluntary, especially since a final author’s manuscripts can only be obtain from authors on an individual “opt-in” basis.  So we do not see a conflict here with the policy our faculty has put in place.

If Elsevier disagrees with our interpretation and thinks that Duke’s policy triggers their denial of authors’ rights to our faculty, they ask us to discuss the matter with them.  This we would be happy to do, but we will do it as part of our negotiations to subscribe to their journal packages.  In her email message Ms. Wise states, somewhat out of the blue, that “author rights agreements and subscription agreements should be kept separate.”  On the contrary, we believe that subscription negotiations are the perfect time for a campus or consortium to take steps to protect its faculty and defend their right to make policy decisions for themselves.  If Elsevier wants to interfere with that right, we will address that desire at the point when we are considering investing some of the Universities’ money with them, if only to get their attention.

I bring this up because of the coincidence with the forum on the Georgia State copyright case that was published in the Chronicle of Higher Education, also while we were in Turkey.  A number of the participants, myself included, suggest that the open access movement is the way to respond to aggressive copyright enforcement in the scholarly publishing industry.  It is worth considering the various ways in which open access is a Trojan horse solution for scholarly communications — the movement that launched a thousand journals and burnt the topless towers of Elsevier, so to speak.

Last week the Duke University Libraries announced the launch of its first library-sponsored open access journals on the Open Journal System platform.  Both of these small journals — one a long-standing publication and the other a new, international collaboration — are edited by Duke faculty members and are fully peer-reviewed.  The OJS system automates many of the administrative tasks of the journals, adding greater efficiency to the volunteer editorial labor that has always been the core of scholarly journal production.  For authors who publish in these journals, the two great difficulties in scholarly communication — copyright management and access to the greatest number of readers — are solved; authors retain their copyrights and are free to do with their articles whatever they believe serves their needs and interests best, while potential readers have unfettered access.  The Libraries bear the small cost of administering the technology as a service to Duke and to the wider community of scholars.

These journals add to a series of efforts toward open access made by the Duke Libraries and the Duke faculty.  In 2010 the faculty adopted an Open Access policy to facilitate greater “reach for their research” and to provide access to those who cannot, for various reasons, rely on the traditional model of restricted, subscription-based access.  The Libraries have been developing the DukeSpace repository in order to make the vision expressed by the faculty in that policy into a reality.  Last fall, Duke also implemented a COPE Fund (Compact for Open access Publishing Equity) designed to help authors pay article processing fees if they decide that publishing in an “author-pays” open access journal is the best choice for them.  The COPE fund is a joint project underwritten by the Libraries and the Provost’s Office; it has seen steady, but not overwhelming, requests for assistance from faculty authors.

We are proud of these initiatives at Duke, but we recognize that none of them are unique.  Many institutions are adopting some or all of the same strategies.  The point is that these efforts really do remove the conflicts about which so much has been written in the past few days (much of it by me).  Insofar as I have have suggested nightmare scenarios, open access avoids them all.  If scholarly authors insist on retaining their copyrights, even when they publish in traditional journals, the problem of having that copyright enforced against the scholars’ own interests simply does not arise.  If they retain rights to post in an open access repository, the access problems, whether they involve electronic reserves, faculty posting in a course management system, or inter-library loan, simply do not arise.  And if more scholarly articles are just published directly as open access works, either in free open access journals like the ones the Duke Libraries have just launched, or in an author-pays journal with the support of a COPE fund, these problems once again simply do not arise.

Is open access a Trojan horse?  Not really.  The Trojan horse was meant to deceive, while the open access movement has always been honest and up-front about its goals.  But it is still true that traditional publishers have proved, through a series of actions designed to increase their own revenues at the expense of higher education, to be poor stewards of the copyrights and the scholarship that we have long entrusted to them.  The metaphor of a war has, unfortunately, begun to surface in the debate.  But there are also articles like this one, in which a researcher points in a more irenic direction, suggesting that open access is the future of scholarly publishing. The variety of open access mechanisms that are being initiated now, and the yet-unknown ones that will be tried in the future, offer an opportunity to cut short the war and put the management of scholarship into the hands that can best serve the overall interests of research and teaching, those of the scholarly authors themselves.

Obviously these efforts have struck a nerve, because yesterday the International Association of Scientific, Technical and Medical Publishers issued a statement opposing these efforts.  The statement is a model of misdirection — affirming, in the best tradition of political double speak, exactly the values they think their opponents hold while trying to claim that it is merely the means, not the goal, that they oppose.  It is worth taking a close look at this statement.

The STM statement makes four basic points, as follows:

1. “Conflating” authors rights with institutional content licenses would add complexity and uncertainty to the process.
2. Publishers are already doing well in terms of responsiveness to authors and in disseminating the results of research.
3. Scholars “value fora that provide comprehensive coverage of a discipline,” while institutions are pushing repositories in order to enhance their own reputations.
4. The impact of institutional repositories should be the subject of objective research and assessment.

The first of these arguments is really interesting, since it is publishers own policies that have driven institutions to adopt this strategy.  Publishers often tell individual authors that they cannot accept authors’ rights addenda to individual publishing contracts because they need consistent agreements.  Yet they have never been concerned that libraries must negotiate different agreements with each publisher when they are in their vendor roles.  Now suddenly they want to avoid complexity, but only if it will serve to shut the other avenue toward authors’ rights.  Can we expect a new willingness to accommodate individual authors who seek to self-archive?  I don’t think so, especially after working with an author this week whose request to shorten the 18 month embargo imposed on self-archiving by his publisher was turned down flat.

This experience, and countless ones like it, convince me that the second point is simply not true.  Responsiveness to author needs tend to stop at precisely the point where the author wants to take advantage of the new opportunities offer by the digital environment to increase his or her impact on her field.  Impact on the field is a collective goal for publishers, but it comes right behind maximizing profit, and it does not including helping individual authors in any way that is perceived to threaten those profits.

The third point is a rather disingenuous attempt to drive a wedge between authors and the repositories on their campus, by characterizing the motives of each side so that they seem divergent.  The use of the term “institution-centric repositories,” which seemed to have been coined specially for this statement, is indicative of the desire to put authors and their institutions at odds.  In fact, authors really do want maximum impact for their work, and institutions are not just seeking a “showcase” with their repositories.  When my institution adopted an open access policy, in fact, the most compelling argument for both the faculty council and the administration turned out to be “knowledge in the service of society,” which is one of Duke’s overarching strategic emphases.  Both groups recognized that traditional toll-access publication was not serving this shared goal very well.

Finally, the impact of open access repositories has been subject to a great deal of research already.  Most of it has supported the values that are behind the effort, and these publishers don’t like such conclusions.  Thus the implication that they are the only ones capable of carrying out “objective” research and the reference to a project which is being lead by the STM Association itself.

All in all, this statement provides a model of partisan double speak, but it does little to forward the conversation.  Licensing negotiations are one of the few places where institutions wield real power, the power of the purse, in their relationship with publishers.  It is, therefore, a very appropriate venue to pursue the goals that are shared between faculty authors and their institutions.  Such negotiations may be complex, but they always have been.  What is new is that institutions are beginning to stand up for their own shared values.

Recently there has been a lot of interest in the scope of free speech rights for professors at public universities.  In 2006 the Supreme Court handed down a decision called Garcetti v. Cabellos which held that a public employee (a District Attorney) was not entitled to First Amendment protection for his speech related to his position.  In short, he could be fired because of things he said publicly that were related to his job.  This caused a great deal of anxiety for academics at public university, since it seemed to provide a loophole to avoid the academic freedom that is so cherished, but fuzzily defined, on our campuses.

Garcetti was followed by a number of decisions that did apply its ruling to employees of public universities, which increased the concern and brought the American Association of University Professors into the discussion.  One oddity of those decisions is that the opinion in Garcetti is itself skeptical about whether the ruling should be applied to academics.

Today comes news of a decision in the Fourth Circuit Court of Appeals, reported here and here, that reverses this trend and asserts that Garcetti should not be applied to professors.  In a dispute where a tenured associate professor claims to have been denied promotion over blog posts and newspaper columns he wrote expressing conservative, Christian-oriented viewpoints, the 4^th Circuit held that such speech was protected by the First Amendment and that Garcetti did not mean that an academic could be punished for unpopular speech.

It is important to realize that this case was not decided by the ruling this week; it was remanded to District Court.  The Appeals Court held that it was improper to dismiss the case because of Garcetti and the presumption that a public university professor’s speech was not protected, but the university may still be able to prove that promotion was denied for a different, acceptable reason.  Only if the professor shows that he was actually denied promotion because of what he wrote will there be a First Amendment problem.  But I want to consider a couple of interesting (I hope) questions raised by the Appeals Court’s decision.

First, if a public university professor’s speech is protected, as we always thought before Garcetti, how about his or her right NOT to speak?  The flap going on in Wisconsin over a public records request to see the e-mails of a professor who has apparently taken a political stance unpopular with the current state government raises the issue of how far free speech should go to protect the decision to not speak, or not have one’s speech disseminate beyond those for whom it was intended.

There is a fairly long history of the Supreme Court recognizing and upholding the right not to speak based on the First Amendment.  Some of these are “ventriloquism” cases, where courts have held that the state cannot put words in someone’s mouth by requiring them to say specific words, like the Pledge of Allegiance or a motto on a license plate.  But there is also jurisprudence upholding a right to decide how to distribute one’s own speech.  In fact, in Harper & Row v. Nation Enterprises the Supreme Court argued that copyright was congruent with free speech partly because it supports the right to not speak publicly until one decided to do so.  Given the strong First Amendment rights for state-employed academics affirmed by the Fourth Circuit, finding a more complete negative right to determine if, when, and where protected personal communications are published is entirely plausible.  We shall see if that reasoning has an impact in Wisconsin.

Another point that is raised by this decision on academic free speech is who it applies to.  Does it apply only to faculty, including, presumably, librarians with faculty status?  Or could it apply to librarians and other staff as well?  One of the effects of the technological revolutions we have seen lately is that many more of us – include yours truly – are able to communicate widely and advocate for policies and legal interpretations that may be controversial.  It is interesting that the professor’s scholarship that was at issue in the 4^th Circuit was in non-traditional forms like blogs and newspaper columns.  The shift in scholarly communications, and libraries’ more deep involvement in scholarly communications issues, raises the question of academic freedom protections for non-faculty and the scope of free speech rights in this newly developing dialog.