
How to get every academic paper ever published into an open-access repository - p4bl0
http://justpaste.it/f2i-doctorow-openaccess
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dalke
(tl;dr. There may be a 'teacher exception' in this case ... or there might
not. The law is unsettled for post-1976 copyrights. A university would face
outcry from academe and the publishing industry should it try to assert
copyright ownership as Doctorow proposes.)

"Until a couple decades ago, virtually every university in America had work-
for-hire arrangements with their faculty. These faculty, therefore, didn't
hold the copyright they nominally assigned to the academic publishers over the
past century."

Even if true, did the contract allow them, as agents of the university, to
sign those copyrights over to another party?

It's not like people 40 years ago were ignorant of copyright law, so I find it
hard to believe this thesis is true.

EDIT: I did some background research and found this nice piece by Joy
Blanchard in Innov High Educ (2010) 35:61-69, DOI 10.1007/s10755-009-9124-1,
[http://www.academia.edu/7812029/The_Teacher_Exception_Under_...](http://www.academia.edu/7812029/The_Teacher_Exception_Under_the_Work_for_Hire_Doctrine_Safeguard_of_Academic_Freedom_or_Vehicle_for_Academic_Free_Enterprise)
. I quote from it:

> Before the 1976 amendments to the Copyright Act, courts were more reluctant
> to recognize any sort of claims universities or colleges would have as the
> employer. Such an example is provided by the case of Williams v. Weisser
> (1969), the most noted teacher exception case of the pre-1976 era. In this
> case a professor at UCLA sought and won an injunction against a note-taking
> company that reproduced and sold course packets, despite his objection.
> According to University policy at the time, which drew from California
> common law copyright, professors retained a property right to their lectures
> and class notes.(However, during trial a university administrator testified
> that it was customary that, if a manuscript was forecast to be profitable,
> the university and professor would enter into a publisher’s-type agreement
> in which the university would pay the professor commercial royalty rates.)
> In its ruling, the court could not find reason as to why a university would
> want to maintain ownership of professorial copyrights: “[s]uch retention
> would be useless except possibly for making a little profit from a
> publication and for making it difficult for the teacher to give the same
> lectures, should he change jobs” (Williams v. Weisser 1969, p. 734) ...

> However, after the Copyright Act was amended in 1976, the legal theory of a
> “teacher exception” and the question of who owns course materials have
> become increasingly muddled. ...

> In Weinstein’s instance, the court distinguished between the requirement of
> academics to publish and any copyright claim the University had per the
> “requirement or duty” clause in its copyright policy. According to
> Easterbrook, the University “told Weinstein to publish the article, not to
> ask the University for permission to publish — permission that would have
> been essential if the University owned the copyright” (Weinstein v.
> University of Illinois 1987, p. 1095). The ruling also stated that faculty
> members have the authority, not the institution, to grant copyright to
> academic journals when submitting materials for publication. Easterbrook
> stated that faculty ownership of creative works had “been the academic
> tradition since copyright law began” (Weinstein v. University of Illinois
> 1987, p. 1094) and likened the dispute among co-authors to a contractual
> claim, to which the University had no legal standing ...

> As previously outlined, courts have yet to definitively recognize any
> teacher exception to copyright law. Though faculty members would decry its
> abolition or amendments to venerated academic tradition, there is a case
> from outside the realm of academe that, should it be applied literally to
> academic cases, strongly suggests that institutions could potentially
> prevail today in exerting copyright ownership over faculty writing and
> creations ...

> Thus, the teacher exception remains vulnerable and unsettled law.

My guess is that if a university should try this, the outcry would be huge,
from multiple sides. The most likely response would be a push for a copyright
tweak such that the current dictum concerning the teacher exception would be
made law.

Thus, I see no real up-side to a university taking up Doctorow's proposal.

Plus, Doctorow's "How to get every academic paper ever published into an open-
access repository" seems to be wrong. It would only apply to papers from 1976
and beyond, as the teacher exception was more clear before that copyright
change.

