Curt Acredolo (cracredolo@ucdavis.edu)
Tue, 30 Nov 1999 16:02:15 -0800
UC DAVIS: ACADEMIC SENATE
November 19, 1999
DEANS, DIRECTORS, DEPARTMENT CHAIRS
ACADEMIC SENATE MEMBERS
ACADEMIC FEDERATION MEMBERS
RE: Course Lecture Notes on the Internet
Dear Colleagues:
By now, most of you are aware that several commercial ventures are posting
course lecture notes on the Internet. Regularly enrolled students at each
university take these notes under contract with the companies, which then post
the notes for national distribution. Instructors are not asked for permission
nor are they given the option of reviewing the notes prior to posting. The
October 1, 1999 issue of The Chronicle of Higher Education describes this
practice in an article entitled "Putting Class Notes on the Web: Are Companies
Stealing Lectures?" Additional articles in local newspapers have noted that UC
Davis courses are represented on several web sites including
<http://www.versity.com/>www.versity.com and
<http://www.studentu.com/>www.studentu.com. The presence of these services has
raised a number of questions among teaching faculty regarding intellectual
property, copyright, the pedagogical value of such notes in promoting learning
and the impact of poorly composed notes on a faculty member's academic
reputation. Discussion of these issues will continue throughout the UC system
this year.
The issue of making individual student notes available to others is not new to
the University of California, of course. Some faculty already offer their
course notes for sale through the campus bookstore or other outlets. ASUCD has
provided the "Classical Notes" service on our campus for some time, but
note-takers are required to obtain the written permission of the instructor.
California courts have previously held that hiring a student to take notes for
publication without the instructor's permission constituted a violation of the
California common law copyright (California Civil Code 980 et. seq.).
Federal law differs in creating a copyright interest in the instructor's
written/printed lecture notes to the extent they are original work. If an
instructor is reading or reciting from his/her lecture notes, he/she is
exercising his/her performance rights under copyright law, and a duplication of
that performance by taking notes so accurate as to allow a repeat performance
would be a copyright violation. If the words being said in a lecture are not
otherwise "fixed" the "public performance ... does not of itself constitute
publication", hence does not trigger federal copyright protection. Even if it
did, in a federal court case that looked at the applicability of copyright to
course lectures, the court held that most statements made in a lecture can be
categorized as facts or ideas that do not belong to anyone, neither of which is
copyrightable. (University of Florida v. KPB, Inc (d.b.a. "A Notes")).
The web-based services argue, however, that each note-taker is merely writing
down his/her perceptions of the instructor's lecture. Rather than violating
any existing copyright, the note-taker is creating a new original work of
authorship fixed in a tangible medium, and, as the author, can exercise any of
the rights provided by federal copyright law, including transferring ownership
to a note-distribution service. The services have been very careful not to
duplicate class handouts or syllabi, which would clearly be a copyright
violation. The merit of this argument has not been tested in court. One
response to this might be that the note-taker is creating a derivative work
rather than a new work. However, if so, every college student who takes notes
is creating a derivative work without express authorization of the instructor.
One solution is to authorize students to make notes for personal use to
differentiate them from notes for sale.
For the present, faculty can assume that California common law copyright
continues to be applicable as long as it is not preempted by federal law to the
contrary. Unfortunately, UC copyright policy is somewhat ambiguous regarding
ownership of the copyright on lecture notes (see the UC Policy on Copyright
Ownership, August 19, 1992, http://www.ucop.edu/ucophome/uwnews/copyr.html).
However, individual faculty who are concerned about notes being distributed on
the web can take action to stop it. An appropriate first step to prevent
unauthorized distribution is to announce at the first class and put on the
syllabus, course web-sites, and in/on any other communication, a statement to
the effect:
"Copyright (author's name) and The Regents of the University of California
(year). All federal and state copyrights reserved for all original material
presented in this course through any medium, including lecture or print.
Individuals are prohibited from being paid for taking, selling, or otherwise
transferring for value, personal class notes made during this course to any
entity without the express written permission of (author's name)."
Please note that the above statement differs materially from one recently
recommended by the Davis Faculty Association. If an instructor becomes aware
that student notes of his/her lecture(s) are being published without his/her
permission, the Business Contracts office will send a "cease and desist" letter
to the publisher. (Such letters were already sent to both StudentU.com and
Versity.com on October 21.) All that is needed is a "snapshot" printout that
includes the URL address, sent to Business Contracts. Besides serving to make
the University's interests known, as repeatedly as necessary, this will
document these violations so that if and when these sites are challenged
through legal channels, the Davis campus will be ready with supporting
evidence. In addition to legal sanctions, students found in violation of these
prohibitions may be subject to University disciplinary action.
We hope this explanation will enable you to make informed decisions about how
you wish to handle this situation. If you have additional copyright-related
questions, please contact the Business Contracts office.
Sincerely,
Jeffery C. Gibeling, Chair
Davis Division of the Academic Senate
Janet C. Hamilton
Vice Chancellor - Administration
Directive #: 99-134
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