Re: INFO/NYT: Universities Note and Protest Student Publication of Class Notes

On Fri, 22 Oct 1999, David P. Dillard <jwne[_at_]astro.ocis.temple.edu> posted:
>
> By CARL S. KAPLAN
>
> Universities Warn Sites Posting Class Notes some university
> professors and administrators have watched with alarm over the past
> year or so as Internet ventures have hired students on campuses across
> the country to take class notes and post them on free Web sites.
>
> Now the simmering controversy may reach a boil. In the last
> two weeks at least two universities have sent warning letters to
> representatives of the online companies, claiming that note-takers
> are violating campus policy and infringing upon the intellectual
> property rights of the faculty.
>
> Looming behind the dispute is a puzzling legal question: Is the
> commercial distribution of a student's class notes a violation of the
> professor's copyright?

First put to the side ownership of the copyright. First, there is the situation where the professor essentially reads his notes to the class (I know we don't have any of those here, but we have all had them). The notes would seem to be either a direct recording, or at most a derivative work. In either case, I would think that their would be infringement (absent license).

Then you have the situation where the notes are really just an outline of what is taught. Then you may be far enough from the original to go beyond a derivative work, but you still have essentially almost simultaneous fixation. Who is the author then? Well, I would think that the primary original expression is coming from the professor, and not the student.

Now as to ownership though. I would suggest here that the ownership is actually usually vested in the university, and not the professors, regardless of what everyone thinks in academia. We have all lived through the work-for-hire discussions here concerning academic papers. However, I think that it is fairly evident that teaching is the primary job of most professors, and of course, they are paid for it. This is their job. I really cannot see at this point how these works would not be works-made-for-hire, and thus the copyrights actually belong to the universities, instead of the professors.

Of course, this is really irrelevant here, since it is the universities that are asserting the copyrights anyway here.

Finally, for those profs who switch schools (Mark Lemley comes to mind right now in his imminent move to Berkeley), doesn't this open up potential problems with using the same class notes for different schools? Presumably, there is some sort of policy or implied license that allows this, but still...

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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 1999 Bruce E. Hayden,all rights reserved
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Bruce E. Hayden                      bhayden[_at_]acm.org
Phoenix, Arizona                     bhayden[_at_]ieee.org
                                     bhayden[_at_]copatlaw.com