Davis Faculty Association

Archive for January, 2001

DFA Forum on Faculty Copyrights, January 16, 2001

or, UCD Law School, Intellectual Property Expert, and member of UC systemwide standing committee on UC copyright policy.
· Historically little interest in lectures or lecture materials-negligible value.
· New technologies make these more useful (online classes) and thus possibly more valuable.
· Other than in the academic community, most work created while employed is considered work for hire, owned by employer.
· Under the 1909 copyright act, there was a teacher exemption to the work for hire doctrine. It can be argued that the exemption still exists, as it has long been the academic tradition that professors own the copyright to their scholarly work. For materials prepared for teaching, the legal situation is particularly unclear.
· Good arguments can be made to extend tradition to these new situations, but without case law or new statutes, the situation is uncertain.

Kim Mueller, Intellectual Property Lawyer from Sacramento
· Even where the law is not clear, there are measures you can take to lessen the risk of needing a lawyer to protect your work – or at least improve your chances of enforcing your rights if need be.
· You can sell some or all of the bundle of rights known as copyright, so agreements are important. Read the fine print and don’t sign what you don’t understand.
· Correspondence can establish a tacit agreement even if you don’t sign a contract, so don’t ignore messages that deal with your classes, lecture materials or other scholarly work.
· Even if you are working in collaboration with UC administration to create instructional materials, be aware of the possibility that you may retain rights of joint ownership in the resulting work.
· Monitor developing policy at UC-it will affect you!
· Notify your classes of the significance of 980 related to live lectures, and put copyright notices in your handouts. These notices can head off a lot of problems, or at least preclude claims of “innocent infringement.” (A good simple form of notice is “Copyright 2001 by UC Professor. All Rights Reserved.”)
· Look out for improper use of your material (monitor websites such as collegeclub.com) and complain quickly. If you do nothing for a long time it may be assumed you agree with the “use” of your material and any legal battle will be much more difficult to win
· Registration of copyrighted material also strengthens your legal position. In particular, timely registration – meaning within 3 months of the first public distribution of a work – preserves your ability to collect “lump sum” damages and legal fees as provided by federal law.
· Even though there are uncertainties in the law, there also are strong legal grounds for faculty to claim ownership rights in lecture material, unless rights have been signed away in a contract. These same grounds provide a basis for enforcement actions when needed.

Alan Elms, DFA Representative, Professor of Psychology
· Web services threaten copyright, but are a small risk
· The reuse of lecture materials by UC using technology to accommodate more students is a very large risk to the faculty
· Vigilance! The faculty must be aware of the situation or we could be taken by surprise
· There is no risk if we participate fully in the implementation of online or distance education material and are full partners in any agreements to the use of these materials.

Discussion Issues
· In general, it appears that the faculty own their scholarly work unless the university makes an extraordinary contribution to the final product. However, the meaning of extraordinary is not well defined.
· If you want clarity in the ownership of your work vis a vis the University, then set up a contract to spell that out.
· Be careful, as your ownership rights can be sold outright by an agreement.
· University policy requested in Education code section 66452(A) should prohibit the commercial use of all lecture material except for a short list of permitted uses, such as Classical Notes, exchange between students in the same class, and with written permission from the instructor.

We invite your comments. Simply reply to this email. The DFA might choose to forward comments to the Standing Committee on Copyright that was formed to explore the issues surrounding copyright and potentially to establish UC policy. The committee is chaired by Rory Hume, Executive Vice Chancellor at UCLA. If you do not want your comments forwarded, or wish to do so only anonymously, please let us know.

Intellectual Property Forum, January 16, 2001

Ben McCoy, DFA Chair, Moderator
Charles Nash, CUCFA Rep. (CUCFA co-sponsored AB 1773)
Leslie Kurtz , UCD Law Prof. & copyright specialist
Kim Mueller, Private Intellectual Property Attorney
Alan Elms , DFA member and Forum organizer

A new state law increases protections for the intellectual property rights of college and university faculty members. The law originated in a legislative bill co-sponsored by the systemwide Council of UC Faculty Associations. Implications of this and other laws dealing with intellectual property rights will be explored at a public forum sponsored by the Davis Faculty Association. The forum is scheduled
for January 16 from 12:10 to 1:30 p.m.in the Cabernet Room of the Silo. All UCD faculty members and other interested parties are invited.

The 1999-2000 academic year saw the explosive growth of commercial web sites posting what were alleged to be contemporaneous class notes for college courses given all over the United States. During the Spring quarter of 2000, one such site posted notes for more than 200 courses offered on six UC campuses, along with many others from campuses of the California State University system and private institutions in the state, including Stanford and the University of Santa Clara. Most of these notes were initially posted without the knowledge or consent of the course instructors. Faculty members who eventually learned of and reviewed “their” notes often characterized them as incomplete and inaccurate descriptions of what was actually presented in the classroom.

On January 20, 2000, Assemblymember Gloria Romero (who is on leave from her appointment as a Professor of Psychology at CSU-Los Angeles while she serves as a legislator) introduced AB 1773, legislation intended to curb unauthorized commercial note taking in California. This was the bill cosponsored by the Council of UC Faculty Associations, along with the California Faculty Association (the CSU Faculty Union). As amended, the bill passed the Legislature, was signed by the Governor, and entered state law as Sec. 66450 et seq. of the California State Education Code.

According to the new law, effective on January 1, 2001, any business, agency, or person will be prohibited from preparing, causing to be prepared, giving, selling, transferring or otherwise distributing or publishing for any commercial purpose, any contemporaneous recording of an academic presentation in any California higher educational institution, public or private. (Contemporaneous recordings include written transcriptions as well as sound recordings, films,and videotapes.) Actions alleging violations of the statute may be brought by the Attorney General of California, by a District Attorney, or by other specified public agencies “in the name of the people of the State of California upon their own complaint, or upon the complaint of any board, officer, corporation or association or by any person…” Courts are empowered to grant injunctive relief, and persons injured by violations of the statute may recover damages, court costs, etc. from “any person who is not a student enrolled at the institution at which the instructor makes his/her academic presentation…” The statutory damages begin at $1,000 for the first offense and can go as high as $25,000 for a third one.

AB 1773 builds upon California Civil Code Section 980, which was amended in 1982 to recognize an important 1976 change in the federal copyright act. The operant part of Section 980 reads: “The author of any original work of authorship that is not fixed in any tangible medium of expression has an exclusive ownership in the representation or expression thereof as against all persons except one who originally and independently creates the same or similar work.” Prior to passage of the new law AB 1773, according to the Legislative Counsel, existing California case law already provided “that in the absence of evidence to the contrary, a teacher, rather than the institutions for which he or she teaches, owns the common law copyright to his or her lectures.” AB 1773 states explicitly, “Nothing in this chapter is intended to change existing law as it pertains to the ownership of academic presentations.”

As a practical matter, the previous body of case law meant that a faculty member whose unauthorized course notes showed up on a web site or in print would have to initiate costly personal legal action against every transgressor who surfaced. Events last May, while AB 1773 was still a work in progress, showed that taking such a step could be highly effective, though at significant expense in money and time. With the financial support of the Davis Faculty Association and the intervention of a private practice attorney specializing in intellectual property matters, a Davis faculty member whose notes were posted on a web site threatened the site operator with a lawsuit based on Civil Code Section 980. The offending notes were almost immediately removed from the web site, and in addition, no new notes were posted for any UC Davis course for the rest of the quarter. The new law should make even more clear to potential commercial note-takers that legal remedies against such theft of intellectual property are readily available, and should make it easier for faculty members to initiate such legal action.

AB 1773 does recognize that campuses may want to allow noncommercial student note-taking services to operate. It calls upon the administrations of the various higher-educational sectors, in consultation with their faculties, to adopt regulations governing the conduct of students in this context, and to inform the students of such regulations. It also calls upon the institutions to specify penalties for student violations, and otherwise to “develop policies to prohibit the unauthorized recording, dissemination and publication of academic presentations for commercial purposes.”

The January 16 forum scheduled by the DFA will discuss in more detail the background of the new law and the steps faculty may take under AB 1773 to protect their original course material from unauthorized commercial use. Other points for discussion will include ambiguities in federal copyright laws applicable to faculty, and the extent to which universities may use faculty-generated course materials for distance learning without authorization by individual faculty members. The forum will begin at 12:10 p.m. in the Cabernet Room of the Silo. We would appreciate your letting us know whether you plan to attend, by sending an email reply to this message. Brown-baggers are welcome.

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