Even as a law student, the very idea of who owned the copyright in the written notes I took in class was not something that ever occurred to me, let alone whether I was actually committing an infringing act by lending the notes to one of my friends.
Admittedly, this was way before copyright permeated into nearly everyone’s lives via the internet.
Now, a student’s class notes are just as likely to be uploaded to blogs, websites and forums, or even distributed as e-books.
They can be shared, not just between a few friends in class, but with an infinite number of people on the World Wide Web.
This has led some US states and universities to take steps limiting just what students can do with their class notes, which raises the question of whether students, or lecturers own the copyrights?
Universities and Publishers Clamp Down On Class Notes
This clampdown seems to be partially in response to the widespread and lucrative business of students selling their class notes to website publishers who make this material available to others for a price.
It is now such a problem that universities have been updating their policies on intellectual property and student codes of conducts, with some establishments even going so far as to sending cease-and-desist orders to offending websites.
This prompted at least one website to stop accepting notes from students attending these establishments.
While lecturers can rightly claim copyright over notes, articles, and books they write or publish, to extend this to what students write in class would seem to be tenuous at the very least.
What students write down are their notes. They have written them, used their own skill and knowledge to interpret what has been said, and they can claim ownership of them.
If infringement of copyright law extended to summaries or interpretations then journalists and reviewers would be out of work.
Knowledge not copyrightable. Knowledge expression in tangible form is.
This also raises the issue of ‘knowledge’ in relation to copyright. Students come to university to learn and to acquire knowledge…from their lecturers. The lecturers cannot then prevent them from using that knowledge.
Furthermore, where did the lecturers receive their knowledge from? Knowledge is not copyrightable. It is the expression of knowledge in an original, tangible format that is copyrightable.
For copyright to even exist at all the work must be fixed in a tangible medium. While the notes that a professor uses to deliver his lecture may be fixed, the oral delivery of the notes are not.
For an oral lecture to receive copyright protection, it would have to be delivered verbatim from the previously written script (the written script being the tangible medium), or it would need to be recorded or fixed in some other way.
Although I do not doubt that teaching methods have changed since my university days, I am sure that lecturers pressing the play button on their iTunes folder, while settling down to do The Times Crossword, or reading parrot-style from a full script, without any interaction with students is still not the way things are done.
So, to claim copyright exists in a lecture would seem to fall at the very first hurdle.
So, if a lecture is not fixed in any tangible medium, can it be considered a performance for the purposes of copyright?
Well, perhaps, but in order for a lecturer to claim copyright, the lecture would have to be recorded in some way…and so we are back to the tangible medium problem again.
Pre-Printed Notes are an Exception
Just to clarify here, we are talking about the notes a student makes in class and lectures.
We are not talking about any notes or pre-printed or pre-recorded materials that a lecturer may distribute to students, which are protected by either the lecturer’s or others’ copyrights because they have been fixed.
In 1996 the University of Florida embarked on a lawsuit against A-Plus Notes – a note-taking company which allowed students to upload their class notes – claiming this infringed upon professors’ copyrights. The US Court of Appeals disagreed, ruling against the University of Florida.
University of California at Berkeley Tried to Prevent Students from Profiting from Notes
While one can understand the need for universities to protect their professors’ intellectual property rights, it is wide of the mark to suggest that their students’ notes infringe their copyrights.
Still, even with the 1996 case setting a precedent, universities are still doing their utmost to prevent students from profiting from their class notes.
The University of California, Berkeley in its policy on course note taking updated earlier this year maintains that:
Instructors’ Copyrights. Individual instructors retain copyrights to lectures and class presentations, class materials they create, and related material pursuant to U.S. copyright law, California Civil Code § 980 (a)(1), and the University of California’s Policy on Copyright Ownership.
Omitting to mention, of course, that it is already established there is no copyright in lectures per se.
It also forbids students not to reproduce, share or distribute notes for commercial purposes or compensation, or to share notes with students currently not enrolled in the same class.
Berkeley’s Own Law Professor at Odds with University Stance
Not only do these measures seem rather Draconian, but in the University of California Guardian it was reported that the policy infringed student rights and detracted from an ‘open’ learning atmosphere.
It also pointed out the irony of UC Berkeley hosting the 2008 Students for Free Culture convention, a conference focusing on public access to knowledge, civil liberties and freedom of expression.
Furthermore, one of Berkeley’s own professors of law maintains that federal copyright laws and the rights to free speech in the First Amendment would take precedence over the California Education Code.
Last year, there was another case regarding copyright of class notes. Dr. Michael Moulton, who teaches wildlife ecology and conservation at the University of Florida and his publisher Faulkner Press have been involved in a lawsuit with Class Notes dba Einstein’s Notes.
Tangible Expression is the Key to Copyright Infringement
Dr. Moulton had compiled his lecture notes into an electronic textbook, which was published by Faulkner Press.
Students enrolled in Dr. Moulton’s class were required to purchase the $90 CD, which included study guides, practice exam questions and other audiovisual material.
Class Notes was in the business of collecting material and class notes from students, and the lawsuit alleged that they were infringing Dr. Moulton’s copyrights.
The copyrights in question were Dr. Moulton’s lecture notes, including lecture outlines, exams and film study questions and the sound recordings of Dr. Moulton’s lectures.
The court decided in Dr. Moulton’s favor, but the difference between this and the earlier case is that Dr. Moulton’s copyrights had been fixed in a tangible medium.
Perhaps the most salient point from the judgment, and the one that university lecturers should take note of, was with regard to the content of Dr. Moulton’s copyrights:
‘…his film study questions and practice questions are factual compilations. Copyright protection extends only to the selection and arrangement, not to the underlying facts themselves’
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About the Author: Amanda Duffy has a degree in law from the University of Westminster, London. She has had a successful career in music copyright and publishing at the Mechanical Copyright Protection Society, the BBC and FremantleMedia. She is now a freelance writer.