Ownership of Lectures Commercial Notetaking in University Courses

Introduction

Although commercial notetaking in University lectures is not new, new companies that post class notes to the Internet making them available worldwide, sometimes for free, have caught the attention of faculty members and administrators as well as their intended audience, students. It seems apparent that the grand scale on which some companies propose to operate, thus affecting large numbers of faculty members and their institutions nationwide, and worldwide distribution of faculty members' lectures without their permission, may misrepresent or even affect the content of lectures. Additionally, where faculty members do give their permission and cooperate with notetaking services, payments to the faculty members along with wide distribution of summaries of lectures may raise serious conflict of interest implications or concerns about the propriety of providing to the public for free information for which students and their families pay thousands of dollars each semester.  These matters begin to concern Universities as well as individual faculty members who are the owners of copyright in the lectures. Even if faculty have owned these materials all along, there has never been the scope of threat to their and our interests that Internet note services, among other digital innovations, seem to pose today.

Unfortunately, addressing these concerns is not a simple matter:

1. Some faculty members do not oppose commercial notetaking
2. Some criticism of large, relatively static lecture classes perhaps is deserved
3. Establishing copyright in a lecture requires that specific procedures be followed
4. Determining whether particular student notes would infringe faculty copyrights is complex
5. Establishing limited rights in the infringing product, if any, of student notetaking requires specific action
6. Regulating a noninfringing product of student notetaking is problematic
7. Enforcing any restriction or regulation is costly and time-consuming

As the owners of copyright in their lectures, faculty members have responsibility for meeting the challenges that commercial notetaking poses. The University of Texas System cannot handle these matters for faculty members, but does wish to provide some guidance that will help faculty members who may wish to take action. This experience may help faculty members better understand what it feels like to be a copyright owner trying to protect intellectual property in the digital environment and may make it easier to understand the difficulties our University publishers and other publishers face today.

Not Everyone is Worried

First, we must acknowledge that not all faculty members are concerned. Some have even actively supported commercial  notetakers' efforts. They may believe that once it is clear that attendance doesn't drop and that student notes are not a very good substitute for going to class, the notes take on a more reasonable role: filling in gaps. On the other hand, faculty who are paid by notetaking services to provide their own notes may have to address institutional concerns about conflict of interest or commitment.

Can We Really Complain?

Both students and some faculty members have pointed out that if a student can skip class (a lot) and use commercially available notes and do well in the class, what does this say about the class? Should Universities even have classes like that? Should we complain if students find better ways to spend their very precious time? There may be things faculty members can do to vary the lecture from year to year, to involve the students in discussion and to use visual teaching materials - things that make going to class an important part of the learning experience.

Is Your Lecture Copyrighted?

Federal copyright law only protects works that are fixed in a tangible medium of expression. A lecture, in and of itself, is not fixed. In order to be protected by federal law, a lecture would have to be either a performance of an underlying work that is fixed, for example, a recitation of a written speech, or a transmission that is fixed simultaneously. This latter provision may be of significance in distance learning. If a faculty member lectures from an outline or notes, or just "wings it," federal copyright law does not protect the lecture and the faculty member will not be able to assert federal rights against anyone.

This does not mean, however that the lecture can't be protected. Fortunately, most states protect works like a lecture that are not yet fixed. "Common law copyright" used to protect all works until they were published when publication was the event that brought them within the federal law. Today, however, works are protected from the moment of their fixation, rather than from the date of publication, so there's very little left for common law copyright to protect. Thus, "unfixed" works are one of the few remaining categories of works protected by state law. So long as the faculty member can clearly establish that she is the author, most states will fully protect her lecture, calling upon concepts similar to those found in federal law to determine whether the common law copyright has been infringed.

So, if a faculty member has decided to limit what students can do with the notes they take while in class, and assuming she does not recite prepared speeches, the first step should be recording the lecture at the time she delivers it. This provides excellent proof of her authorship so that she may easily claim common law copyright protection for the unfixed work, and the recording itself will be protected by federal copyright law, though its infringement is not so likely to be an issue if the faculty member maintains control over the recording.

Which Notes Really Infringe?

Even if a lecture is fully protected by either state common law or federal copyright law, the author can only prevent certain uses of her expression. Copyright law does not protect facts and ideas. If the faculty member says,

"We call our approach "Rules of Thumb" for the Fair Use of Copyrighted Materials. Like the Guidelines from which they are in some cases derived, the Rules of Thumb are tailored to different uses of others' works. But unlike the Guidelines, they are short, concise, and easy to read. And they are part of a larger strategy to meet our needs for permission when fair use is not enough; to reduce our need for permission in the future by licensing comprehensive access to works; and to take a more active role in the management of the copyrighted works created on our campuses for the benefit of our university community."

and a student jots down,

"Rules of Thumb: shorter version of guidelines -- one part of larger strategy (find these online and check them out)"

it is not clear at all that what the student has created would infringe the faculty member's copyright. The student didn't really try to capture her expression. If all he has taken is a fact or two and maybe an idea, there's probably no infringement. If there's no infringement, there's nothing for the faculty member to control - at least not by using copyright law (either state common law or federal law) to control it.

Licensing Students to Create a Derivative Work

Many students probably create a work that would infringe a faculty member's copyright, that is, they base their notes on and incorporate her particular expression rather than just state facts and ideas she articulates in more detail. Faculty members have always permitted this kind of activity without actually talking about it. They "implicitly" license students to create a "derivative work" from the lecture. The license is implied through academic tradition -- students are expected to take notes. Now faculty may wish to make the implied license explicit and add some restrictions. Written and verbal instructions at the beginning of class could look something like this:

"My lectures are protected by state common law and federal copyright law. They are my own original expression and I record them at the same time that I deliver them in order to secure protection. Whereas you are authorized to take notes in class thereby creating a derivative work from my lecture, the authorization extends only to making one set of notes for your own personal use and no other use. You are not authorized to record my lectures, to provide your notes to anyone else or to make any commercial use of them without express prior permission from me."

A limited license to take notes could be very important to protecting the intellectual content of lecture materials that embody the faculty member's unfixed lecture and unpublished research, among other things.

University Regulations Restricting the Use of Notes

It is possible for Universities to regulate behavior beyond the bare minimum of what is required by law. For example, it is legal to run screaming down the hall during final exams, but it would not be permitted. Similarly, cheating on an exam is not a crime, but it is a conduct code violation and subjects the cheater to disciplinary procedures. Universities may wish to consider discouraging commercial uses of students' notes, even if those notes do not infringe federal copyright in the faculty member's lecture, by including restrictions on the use of notes in student conduct codes.

The Costs of Enforcement

All costs associated with enforcing faculty owned copyright rights are the responsibility of the faculty member where the University does not share copyright ownership because the University does not otherwise provide legal services to faculty members for their personal benefit. While copyright law provides stiff penalties for infringement, it is not always easy to prove infringement. As noted above, student notes may present difficult cases. One set of notes may include detailed verbatim transcripts of a lecture (clearly infringing), while another set may be nothing but a collection of cryptic fact and idea statements (clearly not an infringement). Most notes will be something in between and probably not a slam dunk for either side. There may be additional issues if the faculty member's lecture includes materials that are not her own original authorship or if she has failed to record the lecture to eliminate evidentiary issues or bring it within the purview of the federal law. All of this will cost time and money to resolve. Further, once notes have been posted on the Internet, it is all but impossible to call them back making injunctive relief rather meaningless. Whereas it may be possible to successfully sue a commercial entity that reproduces and distributes infringing student notes, money damages may be difficult to collect from a student. Indeed, it may be impossible to get an attorney to represent a faculty member in a case against a student defendant with few if any assets.

As the owner of copyright in a lecture, a faculty member's best friend in the fight to protect her intellectual property may be education. Most people violate others' copyrights because it is easy to do, they do not fear getting caught and they do not understand how important copyright protection is to the owner of the rights or how frustrating it is to create something and have others use it as if it were their own. Helping students understand this a bit better may be the best faculty members can do to protect their rights.

Please refer to, and refer your students to, the Copyright Crash Course for more information about all our rights and responsibilities.

Top | Search
Crash Course in Copyright | Intellectual Property Section | Office of General Counsel