Catherine Fisk’s Working Knowledge:Employee Knowledge and the Rise of Corporate Intellectual Property, 1800 – 1930 (University of North Carolina Press, 2009) has been around for a few years, but I only became aware of it recently, after a colleague mentioned it in conversation. So my recommendation — it is a fascinating read — is belated, but I hope these reflections based on the book are still useful.
Fisk’s book makes two overarching points that particularly interested me.
First, for over a century in the U.S., there really was no concept of “work made for hire” in regard to the creative and useful works of employees; it was generally assumed that ideas, expressions, and inventions created by workers belonged to those individuals. When a worker changed jobs, they could take those ideas and know-how with them, unless there was some kind of explicit “non-compete” contract between employee and employer.
Fisk’s other point that struck me as especially significant is that the idea of copyright protection as a property right itself developed over time; copyright has not always been thought of this way. And even as thinking about copyright evolved into the idea of a property right — i.e., a right to exclude others (even employers) from using a work — the notion that an employee’s work naturally belonged to the creator, rather than the employer, still survived for a while. So even when our perception of copyright as a monopoly developed, it was still not taken for granted that that right to exclude must always belong to the corporate entity for whom the creator worked.
To take just one of the many 19th century cases that Fisk discusses, consider Pierpoint v. Fowle, from 1846, a case in the federal district court in Massachusetts the involved the renewal right in a work after the copyright had been assigned to the author’s employer. The case is interesting because it involved a commissioned textbook, the copyright in which was assigned to the party that commissioned it by contract; there was no assumption then, or now, that merely commissioning a work made it work made for hire. When it came time to renew the initial copyright for its second term — the law at that time provided for an initial 28 year term that could be renewed for 14 more years — the author and the assignee disagreed about who had the right to renew and hold the copyright for those 14 additional years. The court held that the renewal right belong to the author and that the assignment applied only to the initial term. The second part of the term was held to be a “new interest, which that court believed to be “made to benefit authors.” Indeed, the court felt that renewal was intended to reward “the genius which conceived and the toil which compiled the book.”
This emphasis on authors and creators, even to the exclusion of employers and others who pay for works of the intellect, seems very different from our experience of copyright today. Expansive work made for hire rules are just one example of how our copyright law has changed, in both substance and through practice, from a strong focus on the author and encouragement of individual creativity to an emphasis on maximizing profitability. With the ever-increasing emphasis in the mid to late 20th century on the goal of squeezing all possible profits out of a work came the corporatization of copyright. Companies now own monopoly rights in most creative works, work for hire is the rule rather than the exception, and often contracts are written in ways that diminish the role and the rights of creators in favor of long-term corporate exploitation of their works.
Scholarly publishing is both an example of this corporate focus and an object lesson in how poorly such a trajectory serves the original, author-focused purpose of copyright. Consider the debate going on in many quarters over Sci-Hub and Elsevier, which has sued and won a default judgment (in the shape of a pretty much unenforceable injunction) against the article sharing site. In many ways these two entities are opposite extremes in the academic world, one focused on making a profit by excluding readers from academic work unless a fee is paid, the other seeking maximum distribution without charge. But each is serving a single-focus vision of what it deems is best for scholars and scholarship; neither actually takes into account what individual authors need and want for their academic works.
Needless to say, academic authors often have very different ideas about how their works should be disseminated and used than are the norm for the commercial markets in which Elsevier, Wiley, et al. operate. Even the language used often indicates a particular attitude towards an author; Wiley consistently uses the language of “contributor” in its publication contracts, which shows, I think, an attitude that the author is just a worker bee, striving to fill the pages of a Wiley publication. And, of course, a few publishers are beginning to require a stipulation, in some contracts, that the article or essay is a work made for hire. In such agreements a direct contradiction of both the facts of scholarly production and its ethos is attempted, by making the author nothing more than a contractor for the press. Whereas authors write to express themselves and share their unique scholarly perspectives in a fairly free environment, these contracts usurp that labor and deny the academic freedom that is so central to it. They fundamentally devalue the academic author.
Open access is an important part of the solution to this corporatization of copyright, and the commodification of faculty authors. Gold open access allows authors to retain their copyrights, and the financing of such openness comes in a variety of forms. Despite corporate efforts to capture Gold open access and portray it as always requiring the payment of ever-increasing article processing fees, a variety of business models support this type of openness. And Green open access relies entirely on author choice, whether that is an individual choice to self-archive a work or a decision by an entire faculty to make openness the norm for that campus’ scholarly work. In all cases, open access is at least somewhat more responsive to the actual needs and wishes of the creators. It hearkens back to the days before copyright was captured by corporate entities, when a court could still assert that copyright was intended to benefit authors.