In two recent blog posts, one describing the original dilemma and one his decision about it, Professor Steven Shaviro discusses his experiences trying to publish an essay in a collection that was being prepared by Oxford University Press. He balked at the contract he was offered, and ultimately decided not to publish in the collection, over the contractual term that would have defined his essay as “a work made for hire.” This seems like a new development in the ongoing conflict between publishers seeking ever more control over the works they are given by academics and professors who want to get proper respect and impact from their works.
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.