Davis Faculty Association

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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