Textbooks Part II: Whose Property, Who Benefits, and Why?

Many of the productive comments to last week’s post  advanced the conversation in the way that is the big benefit of “discursive ethics,” so thank you all. Before moving on to “part two” of the question of faculty-authored textbooks, I’ll briefly mention a few things that the comments made me think about further, and comment on a further question that was raised.

Most of the people who are actively avoiding conflict are doing some variant of the basic methods I offered: discounting/selling at a reduced price or otherwise not accepting royalties, or selling at cost. One alternative offered was to accept the royalties, but then to use them in their entirety to support students in some way in an explicit and specific manner that is procedurally transparent. From a purely ethics-management perspective, the option of foregoing royalties altogether through reduced price or deduction is cleanest, but this latter suggestion has intuitive appeal.  It is, however, still income. No one here said they treated it this way (and probably do not),  but I want to point out, in the interests of the overall goal of thinking things through, that as a gift/charitable contribution it could be deducted for tax purposes, and could create another kind of appearance of conflict: that of an implicit exchange relationship with students. On balance, though, it’s a forthright and thoughtful way of dealing with a process—the royalty process—that is already in place, and explicitly recognizes that a conflict or appearance of a conflict exists, and addresses it.  Multiplying the amount of royalty donated, as one commenter does, is unnecessary (for the purpose of nullifying the conflict) but generous.

Two things raised are really separate issues from whether a conflict exists or not: the amount of money involved, and the amount of effort expended.  A conflict of interest describes a “condition” or “state,” regardless of whether, as several people mentioned, the amount of money is pitiably small or, in the case of a mega book for an introductory course that is widely adopted over long periods, quite large. And there’s quite a bit of research showing that marginal amounts of money or very small gifts do influence decisions and behavior toward self-interest. If the amounts are so small, all the more reason to let them go to avoid a real or perceived conflict.

Similarly, the amount of effort or time expended is not relevant to the question of whether a conflict exists, but in raising the question of rewards it does lead us to the intellectual property question and who can claim a share of royalties. Most would agree that effort doesn’t guarantee reward: would that it did! Whether in the sciences or the humanities, in either of which decades may have been spent to reach the point of having written the book, the reward is not for the effort, but rather for the market’s (not the author’s) assessment of the value of the output. Intellectual property rights are exclusionary rights, not promises of returns. So from the conflict standpoint, I still think it best to accept royalties on the outside sales—and congratulations if you have a book that has been judged by others to be the best—and to forego them when using one’s own book in one’s own course.

But effort, or let’s call it investment, is certainly an important consideration in whether a college can claim rights in your book—your intellectual property (IP). Because of the complex and, I think, controversial aspects of the topic, I thought that asking for people’s initial views and positions would be a good way to start, and then we can try to arrive at some sort of catalog of the issues and their synthesis, if not agreement.  I hope some contract and labor lawyers will chime in here, because this is outside my area except for what I know as a former employer and someone who has worked in book publishing.  And while I know a reasonable amount about IP law, I’m not a lawyer and welcome all help there too.

Here are a few starting questions (or ask your own), to comment on below or anonymously through the post box link. First, a highly simplified note:  you own the copyright on original work the minute you put pen to paper, unless or until you convey the rights in writing. So, you can convey the rights through a “work for hire” agreement saying that you are paid to write x (ghost and contract writers do this, even for textbooks). Or you can negotiate and/or assign various rights for various terms to a work that originates with you and that you own. The former is usually, but not always, done in advance of the work, the latter usually, but not always, after the work. With this in mind:

1. Under what circumstance, if any, is it acceptable for an academic institution to claim a share of royalties in a book a faculty member has written?   For example, is it acceptable if the institution funds all work on the book (evenings/weekends/summers working on book; research assistance, including for fact checking and citation accuracy; gaining permissions; graphics/illustrations; indexing; document production, etc.)?  If it pays your regular compensation only?  Never? Why or why  not?

2. What is the legal mechanism by which an academic institution could claim a share of royalties?  An employment contract that explicitly states that all work is a work for hire?  Would the contract have to spell out the specific things that constitute the “work” that would be covered by the contract? Would it need to include an obligation to write a book in return for a share of the royalties? If so, does this latter constitute an effective reduction in salary?

If not spelled out as an obligation or even a possibility, would it be judged as overbroad or overreaching to claim interest in a book if and when a book is produced? Would all contracts, for all faculty of comparable position, have to be the same to avoid inequitable treatment?  Could inclusion of such terms in contracts be considered coercive, or outside accepted definitions of the role of professor?  Would you accept such a contract if it did? Could you be fired/not hired if you did not? The question here is, in part, whether, like a contract writer, you are being hired to write a book, which would be a work for hire, or not.

3. How would any agreement you had with a college on your books intersect with, e.g., the book publisher, to whom most rights are assigned and through whom royalties are paid? Even though publishing contracts cannot be assigned without permission, could the college, legally, somehow become a party to the contract? Could it claim a piece of an advance? For example, suppose you failed in your contract to deliver a book: could the college be held accountable for your advance if it claimed a piece of the royalties and that it had hired you for all purposes, including the writing of books? Could it fire you for not submitting? If the college could not be a legal assignee or party, does this mean there would need to be a separate contract (if all employees were not explicitly required to produce a book for their salary) governing the sharing of royalties for each book?  In exchange for what?  As a charitable institution, how would such income be treated by the college for accounting purposes? Could it be argued that, if the college claims a share and requires such under contract, your royalties could now be treated as salary rather than other personal income? If the college claims it’s a work for hire, would it effectively have to be the publisher? Or the one with whom a publisher contracts?

4. From the standpoint of intellectual property, if copyright protects expression, can such expression be part of an employment contract?  If, as most academics would claim, their work is the product of a lifetime of training and experience, could an employer claim all the benefit? For example, could the argument be made that you were hired for that lifetime of knowledge and any product it produces? Or, conversely, what portion of the knowledge could the college claim an interest in if, for example, you had only been at the institution two years, but had spent 15 elsewhere?  What about the other, prior institution(s)? Can they claim an interest, especially if you began your book at one and moved to another? What about other works that draw on your knowledge that you wrote while at the institution? For example, David Lodge’s works of fiction, which draw heavily on his disciplinary knowledge and academic career as a scholar and critic?  An artist’s paintings sold at auction while working as a painting professor?  Could a college claim an interest in this work?  If not, how are these different from a textbook; what is its special classification? (Patentable research is a special case, not considered here.)

These are not rhetorical questions; they are practical considerations in the question of whether, and when, it is or is not permissible, or ethical, for an institution to claim rights in the work of individuals who may work at the institution but that may not in and of itself have been produced for the institution.  They further raise questions about the consequences of such claims—for individuals, for institutions, for the higher education and publishing sectors, for society.

 I’ve tried to give some sense of the messiness of this question as it intersects with law and institutional process. Law, ethics, and organizational policy may overlap, but they are not equivalent. It is brain-frying to pick them apart, but necessary. In this case, I believe, the issues are much more about fairness (ethics) and contracts (what the employment relation is and the rights and obligations associated with it) than IP law per se.  What do you think should govern a college’s interactions with faculty on their writings and other expressions of intellect and creativity?

 Yikes. I can’t wait to hear.