Work-for-Hire and Open Access

Rights and access are a major issue in “ethical” linguistics. That is, within the European Union (but also elsewhere) there has been a major push to make research outputs Open Access. Often in this context the presupposition is that the research is being conducted as part of federal/national government organizations such as institutes or universities. However, other organizational structures exist both within Europe and elsewhere. For instance, research may be conducted at a private corporation, by a non-profit organization, or by a private university, or by an unaffiliated individual. The push for Open Access has often been positioned within a narrative, that access to and reuse of government funded research outputs should not become encumbered by legal constraints. The ensuing argument then for linguistic research, which is often grant funded by governments is that the “ethical approach to research” is that the research outputs are costlessly accessible and unencumbered in their re-use.

There are several frameworks which establish rights within the EU context. However, the primary one which has been addressed in the literature and is presented as an encumberment to “research” is the copyright framework. To address encumberments by the copyright framework and other ethical considerations, the FAIR guidelines were developed. FAIR addresses the copyright consideraction through the suggestion of using creative commons licenses. This essentially releases copyright liability which is automatically applied via the copyright framework. This is usually done through a Creative Commons license, applied by the work’s creator. However, two major issues with this strategy seem to not be addressed by the larger publishing (and equally applicable to all research outputs) and distribution networks.

1. Addressing the Work-for-Hire doctrine where the research was conducted as part of the work a researcher was hired to do for an organization. That is, an author (researcher at a university) does not have the right to apply a creative commons license to their authored works, rather, it is their employer who holds this right. What is vastly under-expressed in the academic creative commons licensed literature is how the rights of the employing organizations are being curtailed.

2. The second issue with some creative commons licensed works is the use of the “non-commercial” clause. This clause has no discrete definition. As such it is not clear how it should or should not be applied. But applied especially in the context of academic business activities.

This set of references tracts some of the issues which are raised under the first point above. The application of the employer–employee contract in the context of academic institutions.

References