One of the areas where expectations might be more effectively shaped proactively is when someone in the nonprofit arena authors content. Often, the fact that the nonprofit, not the employee own the resulting copyright in the work eludes the employee’s understanding. This case from last week is such a circumstance.

Kamanou v. Executive Secretary (SDNY Jan. 19, 2012)

Kamanou sued the Executive Secretary of the Commission of the Economic Community of West African States (ECOWAS) for copyright infringement claiming that work she had done while an employee of ECOWAS was ‘unlawfully claimed’ as owned by ECOWAS and then sublicensed to the United Nations.

Kamanou, a citizen of Cameroon, with a PhD in Applied Statistics from U.C. Berkeley, is a well-known international expert on poverty statistics. Kamanou acknowledges that the work at issue was created within the time that she was an employee within her official duties, but states that her job description did not specifically call out the particular work. Moreover, Kamanou asserts that the work can not be a work made for hire as she ‘had no choice but to work on it due to her contractual obligations, and as there was no volitional choice that the work could not qualify for a work made for hire.

The court, in dismissing the action, held that the copyright is owned by ECOWAS who was authorized to license the work to the United Nations. The court explained that Kamanou does not own any copyright in the work. “The obligation to complete the work pursuant to an employment contract is precisely what makes the work a ‘work made for hire’.”

In a 6-2 majority decision written by Ruth Bader Ginsburg, the Supreme Court ruled today that Congress has the authority to restore copyrights in this country that had had lapsed. Relying heavily upon the 2003 decision of Eldred v. Ashcroft:

“Our decision in Eldred is largely dispositive of petitioners’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copyrights. 537 U. S., at 192–193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress acted within constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time prescription, once set, becomes forever ‘fixed’ or ‘inalterable.’” Id., at 199. “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Ibid. Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrain[ed],” or “circumscribed.” Ibid. (internal quotation marks omitted). The construction petitioners tender closely resembles the definition rejected in Eldred and is similarly infirm.”

By this ruling, the court extends U.S. copyright protection to books, musical compositions and other works by foreign artists that had been available without paying royalties:

“In accord with the judgment of the Tenth Circuit, we conclude that §514 does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.”

This opinion ends one of the longest, continuously pending copyright disputes in the history of the United States. First filed in 2001, this case challenged the 1994 federal law passed to implement global agreements worked out in trade negotiations called the ‘Uruguay Round Agreement’. The challenge, however, failed on all points as held in today’s opinion: the law does not violate the Constitution’s Copyright Clause, it does not violate the First Amendment rights of anyone who previously had free access to creative works, and it does not deviate from any long-standing historical practice or perception, according to the decision.