Re: Copyright and Distance Education

From: Michael Carroll <carroll[_at_]law.villanova.edu>
Date: Fri, 01 Aug 2003 12:10:03 -0400

   First, I did not take a position on how the courts should interpret the work for hire provision. I simply said there's an argument that two appellate panels have appeared sympathetic to that would interpret the 1976 Act as containing a teacher exception notwithstanding the statute's plain language.

    Second, it is of course possible that a court called upon to decide the status of teaching materials and scholarship would hold that the plain language governs and they're both works for hire. Or the court could split the baby and say that scholarship is not within the scope of employment but teaching materials are. Such interpretations would run counter to the understanding of most teachers.

     You want to draw the inference that Congress knew about the teacher exception and did not codify it and therefore we should infer that Congress made a policy choice to end the exception. The counter-argument is that Congress was attempting to codify the work for hire doctrine as developed by the courts and it chose the language it thought would do that. The intent to codify existing law -- including the teacher exception -- should guide interpretation of the 1976, particularly in light of settled expectations within the academic community. Notice too that publishers seek copyright assignments and licenses from the teachers not the institutions, indicating that they do not consider the materials prepared as works for hire.

     I'm not taking a position in favor of either interpretation, I simply point out that predicting which one would prevail is less certain than has been assumed.

Best,
MC

Michael W. Carroll
Assistant Professor of Law
Villanova University School of Law
299 N. Spring Mill Road
Villanova, PA 19085
(610) 519-7088
(610) 519 5672 (fax)

See also www.creativecommons.org

>>> brock[_at_]frenzellaw.com 07/31/03 01:45PM >>> How do you reconcile your belief that the courts should continue to interpret the copyright law as containing a teaching exception, despite the fact that congress has since revised the Copyright Act (after the teacher exception gained wide recognition), and chose not to include it?

On 7/30/03 2:10 PM, "Michael Carroll" <carroll[_at_]law.villanova.edu> wrote:

> The shorthand of the reasoning is that the work for hire doctrine was created
> by judicial interpretation of the Copyright Act of 1909 and judges created a
> "teacher exception" under that interpretation. Congress enacted the
> work-for-hire doctrine in the Copyright Act of 1976 and the legislative
> history does not address the teacher exception. The judges in the cases I
> mention (two of whom were former law professors!) suggest that academia had
> come to rely on the teacher exception and in the absence of some indication
> that Congress meant to change the treatment of classroom materials and
> scholarship, modern judges should interpret the 1976 Act as still containing a
> teacher exception.

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