The Professor Exception and Work Made for Hire
A minor puzzle in copyright, but one of interest to faculty, is the continuing vitality of the so-called “professor exception” to the work made for hire rule. In a nutshell, the 1976 Copyright Act gives copyright to the employer for any work prepared by an employee within the scope of his or her employment. Traditionally, professors have retained copyright to their works – particularly their scholarly books and articles. But, if professors are employees of universities and they are expected to write, how does this traditional retention of copyright survive?
I am wondering if the answer lies in a nuanced understanding of the agency test promulgated by the Supreme Court in CCNV v. Reid. In particular, no one considers a professor the agent of her university when writing scholarship. If I say something outrageous in one my articles, people do not think that I speak on behalf of Boston College, nor would anyone expect to hold the university responsible for what I say. Thus, while a professor is an employee of the university in a payroll sense, he is not the university’s agent for purposes of the work made for hire doctrine because he does not write as the university’s agent.
Contrast this with how people would understand things if I were to say something outrageous in an exam I give to my students, or if I were to act inappropriately in class. In those situations, I think people would correctly understand that I am acting on Boston College’s behalf. If I committed a tort against students in those contexts (intentional infliction of emotional distress?), students would reasonably expect recourse against the university. However, to make the point again, people do not expect recourse against the university if I libel someone in my articles.
It occurs to me that this distinction may help sort out some of the tricky issues surrounding materials authored by professors for distance learning or other web-related content. In those cases (perhaps material for a branded distance learning course) where the professor is truly creating material on behalf of the university, copyright goes to the university under the agency test. In other cases where the professor writes for himself, copyright stays with the professor. Of course, contracts or other employment policies could alter this outcome. Thoughts?