US copyright ownership issue

[SleepyBob]

I wasn't sure if I should post in News, or General, but since it relates to a news article, here we are.

"Actuarial leaders disband task force, object to paper on public plan liabilities"

When the academy and SOA leadership made their objections to the paper known, the authors offered to remove the task force label and have the society publish the paper under co-authors’ names only, while having side-by-side critiques written by actuaries opposed to its conclusions, members of the former task force said. But the academy and society refused to agree, the members said.

So, the course of events as I understand them from the article are:
1. Nonprofit professional organization creates a taskforce, made of volunteer members of its organization.
2. Task force produces an issue paper.
3. Organization doesn't like conclusions of paper, disbands taskforce, does not publish paper.
4. Organization refuses permission to allow individuals to publish paper under their own name.
5. Organization may or may not have supplied some data/resources to allow the taskforce to produce the issue paper (unknown).

Where does copyright reside in a situation like this? With the organization, who organized the taskforce? The individuals, who were volunteers, not paid employees/contractors? What don't we know that would push it one way or another?

[pdurrant]

If it was a 'work for hire' then the society owns the copyright. There would need to be a contract for it to be a 'work for hire'

"A “work made for hire” is—

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities."

[SleepyBob]

Thanks! I wonder if it is even possible to make a work for hire contract with volunteers, since they aren't paid for their work.

[HarryT]

Originally Posted by SleepyBob

Thanks! I wonder if it is even possible to make a work for hire contract with volunteers, since they aren't paid for their work.

Certainly it is. "Work for hire" simply means that you're creating the work for your employer. There's no requirement that it be paid employment. Volunteers can be employees.

[fjtorres]

From the horse's mouth, the US dept of Labor:

http://webapps.dol.gov/elaws/whd/fls...volunteers.asp

Volunteers

The Fair Labor Standards Act (FLSA) defines employment very broadly, i.e., "to suffer or permit to work." However, the Supreme Court has made it clear that the FLSA was not intended "to stamp all persons as employees who without any express or implied compensation agreement might work for their own advantage on the premises of another."

In administering the FLSA, the Department of Labor follows this judicial guidance in the case of individuals serving as unpaid volunteers in various community services. Individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.

For example, members of civic organizations may help out in a sheltered workshop; men's or women's organizations may send members or students into hospitals or nursing homes to provide certain personal services for the sick or elderly; parents may assist in a school library or cafeteria as a public duty to maintain effective services for their children or they may volunteer to drive a school bus to carry a football team or school band on a trip.

Similarly, an individual may volunteer to perform such tasks as driving vehicles or folding bandages for the Red Cross, working with disabled children or disadvantaged youth, helping in youth programs as camp counselors, scoutmasters, den mothers, providing child care assistance for needy working mothers, soliciting contributions or participating in benefit programs for such organizations and volunteering other services needed to carry out their charitable, educational, or religious programs.

Under the FLSA, employees may not volunteer services to for-profit private sector employers. On the other hand, in the vast majority of circumstances, individuals can volunteer services to public sector employers. When Congress amended the FLSA in 1985, it made clear that people are allowed to volunteer their services to public agencies and their community with but one exception - public sector employers may not allow their employees to volunteer, without compensation, additional time to do the same work for which they are employed. There is no prohibition on anyone employed in the private sector from volunteering in any capacity or line of work in the public sector.

I suspect the question is whether the Society did more than assemble the task force.
Did they provide facilities for meetings? Data? Support services? If yes, those can be considered contributions "in kind" and would provide an interest in the output and at least partial ownership in the copyright.

If the task force is determined to release their report they might choose to re-create it in a "white room" scenario. Or, they can always sue to determine who controls the copyright.

[frahse]

A good question is whether there was a "contract" or other agreement that was signed by the participants.

If not there is usually no question that an individual can publish their own work.

[fjtorres]

Originally Posted by frahse

A good question is whether there was a "contract" or other agreement that was signed by the participants.

If not there is usually no question that an individual can publish their own work.

There probably is enough documentation that a verbal contract can be inferred.
It really comes down to who owns the actual report. If the members of the task force *don't* own their work, they may have to recreate it.

The problem for the Society is that by suppressing the report they give added credibility to the TaskForce's argument that politics are in play.

[HarryT]

If the members of the taskforce were specifically engaged for the purpose of writing a report, or if such a report constituted an expected part of their work, that sounds awfully like "work for hire" to me. There's no obligation on the copyright holder to publish if they choose not to.

[fjtorres]

Originally Posted by HarryT

If the members of the taskforce were specifically engaged for the purpose of writing a report, or if such a report constituted an expected part of their work, that sounds awfully like "work for hire" to me. There's no obligation on the copyright holder to publish if they choose not to.

Work for hire requires employees.
Volunteers aren't employees.

It sounds like there is a debatable issue at play. More information needed.

[HarryT]

Originally Posted by fjtorres

Work for hire requires employees.

Not necessarily. See item number 2 in pdurrant's post#2 above. But I do agree that it's open to question.

[SleepyBob]

Originally Posted by HarryT

Not necessarily. See item number 2 in pdurrant's post#2 above. But I do agree that it's open to question.

Could be. I have no idea about the specifics of what may have been agreed to, but this is good information about the relevant issues. Thanks.

[fjtorres]

Originally Posted by HarryT

Not necessarily. See item number 2 in pdurrant's post#2 above. But I do agree that it's open to question.

And the first paragraph of the Dept of Labor's definition says it's not necessarily so. As I said, more information is needed.

[HarryT]

Originally Posted by fjtorres

And the first paragraph of the Dept of Labor's definition says it's not necessarily so. As I said, more information is needed.

We are in agreement.

[theducks]

Another issue that was part of my former employment agreement:

Use of Employers resources,
even if the work was fully done on the Employees time off.

[DuckieTigger]

Originally Posted by theducks

Another issue that was part of my former employment agreement:

Use of Employers resources,
even if the work was fully done on the Employees time off.

But wouldn't you agree that it is a kind of stealing if you use your employers resources for personal gain? Even if you don't gain financially you could theoretically as copyright holder release your work into the public domain.