Kevin Smith, an attorney and academic librarian who is Duke's Scholarly Communications Officer, offers three reasons why OUP's insertion of "work for hire" language, which vests authorship with OUP rather than with the real author (previously discussed here and here at New APPS, following up on the initiative of Steven Shaviro) is likely to backfire.
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.
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