Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause (the Copyright and Patent Clause, the Intellectual Property Clause, and the Progress Clause), empowers the United States Congress:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The clause actually confers two distinct powers: the power to secure for limited times to authors the exclusive right to their writings, and the power to secure for limited times to inventors the exclusive rights to their discoveries.
A number of United States Supreme Court cases interprets the text. The Court has determined that because the purpose of the clause is to stimulate development of the works it protects, its purpose is not to inhibit such progress.
After an author creates, they retain the rights, though not exclusively of course, fair use doctrine, while related, is primarily a First Amendment doctrine. It permits certain unauthorized uses of copyrighted material in the name of greater freedoms. In teaching for example, obtaining authorized use from every author would be ludicrous. No practical teaching could be done.
In instances of disagreement, who should prevail?
Here is one such example: "I understand that before I started volunteering with [insert academic JOURNAL here], there were some tensions between your editorial team and the [insert academic JOURNAL here] board."
So who owns the work? The guiding principle here seems to be the stimulation of works, not to prohibit "progress" however ill-defined and unwieldy. Especially in a democracy it seems one would want to err on the side of controversy and expression, unless one's intent was to inhibit such progress.
If the author of an unpublished work specifically objected to inclusion in an archive, I would argue that they retain that right.
However, the work of editors, redactors, and others have a creative aspect as well. That is their original contribution to the progress of the useful arts and sciences.
Therefore, I would strenuously object to the statement that "many of the items [archived materials] fall in to the category of [insert academic JOURNAL here] papers, as opposed to personal correspondence or work."
In this instance the editor did of course, "work," their creative contribution; in addition, the editor in question also has academic credentials, a Masters of Library Science, or their promotion of scientific endeavor. Thus, on two grounds I would argue that the editor is on sound constitutional ground.
The premise of the succeeding editor or board reveals the weakness of their position; they have to ask permission.
With the above in mind, we'd like to ask you to advise [insert University Archivist here] at the
[insert University's Library here] that items in the {insert original Editor's name here] Papers other than your personal correspondence be removed from the archive.
So who owns the work?
The original editor of course.
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