Monday, November 14, 2005

There is Collective Bargaining in Kansas, Dorothy

Last week I had a posting on academic ownership of copyrighted works. Right afterwards, on November 10th, the Kansas Supreme Court issued an interesting opinion on the intersection of state public employee collective bargaining obligations and ownership of faculty created copyrighted works, Pittsburgh State University/Kansas National Educational Association v. Kansas Board of Regents.

Ownership of copyright in faculty-produced works is fast becoming a hot topic, and has moved into the collective bargaining arena, at least in the public sector. Public sector collective bargaining can be a rather pale imitation of its private sector counterpart, especially without the right to strike, and sometimes even concepts like mandatory subjects of bargaining can be toothless. One side may have to talk about something, but then what? (In the private sector failure to bargain over such a subject can authorize a strike).

In the case at issue, the dispute involved the question of whether ownership of intellectual property was a mandatory subject of bargaining. The state said no, but for an odd reason: ownership of copyright was supposedly governed by federal law, and therefore, state law (including labor law) had no say in the matter, and would in fact be preempted. The intermediate appellate court agreed, but the Supreme Court reversed, finding no preemption.

This decision seems quite correct and indeed the application of preemption when it comes to ownership of state copyrights is uncertain at best: states don't have to provide any copyright protection at all, and if they do decide to permit it, it is up to the state to determine whether works created within the scope of employment are owned by the state, owned by the faculty member, or are in the public domain. In this respect, and this applies to works by private parties too, when operating under the first, employment prong of work for hire, parties cannot contractually agree that something that isn't a work for hire is, or vice versa: ownership can be transferred, but authorship can't (and that part of it decidedly is federal). In short, while federal law governs the abstract principles of ownership of state law, states have very broad discretion in applying those principles.

Postscript: On October 20, 2005, the Appellate Division of the New Jersey Superior Court affirmed a decision by the Public Employment Relations Commission that aspects of Rutgers' University patent policy and faculty ownership are mandatory subjects of bargaining, Rutgers Council of AAUP Chapters v. Rutgers, The State University, 2005 N.J. Super. LEXIS 306 (N.J. Superior Court, App. Div.).

2 comments:

joshua wattles said...

…when operating under the first, employment prong of work for hire, parties cannot contractually agree that something that isn't a work for hire is, or vice versa: ownership can be transferred, but authorship can't (and that part of it decidedly is federal). But the parties can contractually agree about the scope of the employment relationship and thus affect authorship since the applicable definition of a “work made for hire” in Section 101 is: “(1) a work prepared by an employee within the scope of his or her employment.” The Kansas Supreme Court discussed this as have other courts.

Defining the scope of the employment relationship seems particularly relevant in academic circles. The University could have a standard of review requiring the publication of scholarly works by teachers but the actual employment contract could exclude the writing of those works. Similarly, the compensation paid to a teacher could include as compensation for teaching the provision of support in the production of academic writings without the writings themselves being in the scope of the employment. Imagine an artist in residence at a University. The employment, the scope of it, could be the artist’s interaction with students and faculty - - not the artwork the artist might produce while present as an artist-in-residence.

William Patry said...

Joshua's point about defining the scope of employment is quite excellent, thanks.