Professors Claiming Copyright Over Their Lectures
from the educational-IP dept
It's always struck me that the strongest supporters of copyright law run into a lot of problems when it comes to educational institutions. After all, the whole purpose of an educational institution is to share knowledge and information as much as possible and continue to impart those ideas to others. But, it appears that copyright maximalism is seeping into the classrooms as well. In the last couple of years, we've seen a lawsuit over a note taking service -- claiming lectures are covered by copyright -- and a professor demanding that students destroy all their notes at the end of the year since the professor claims he holds the copyright.Michael Scott points us to a similar story, involving a Harvard grad who is running a non-profit notetaking service. While there's no lawsuit or anything yet, there is a discussion on whether or not the professors' lectures are covered by copyright, with Harvard's General Counsel insisting that yes they are:
"under the federal Copyright Act of 1976, a lecture is automatically copyrighted as long as the professor prepared some tangible expression of the content--notes, an outline, a script, a video or audio recording."In response, however, the copyright experts over at Copycense destroy that claim and lay down some knowledge (free of charge) for Harvard's AG:
Under the current Copyright Act, a work qualifies for protection only once it is original and then fixed in a way that people can perceive it (i.e. the "tangible medium of expression"). This is essentially what Section 102(a) says in basic terms.
The information from Harvard's counsel is incorrect because a lecture generally would not qualify for the "fixed" part of the equation. What Harvard seems to conflate is eligibility for copyright protection under Section 102(a) and the public performance right under Section 106(4).
But a professor can't have a public performance right under 106(4) if the work in question does not even qualify for copyright protection in the first place under Section 102(a). And a lecture, in and of itself, does not qualify as a protected work under the '76 Act because it is not fixed. (There also may be an argument against copyrightability based on originality grounds, but the lack of fixation is certain and terminal.)
The only way we can determine that a professor's lecture would qualify for copyright protection, assuming it was original, in the first place is if the lecture was recorded. Then there would be two copyrighted works: the lecture, and then the notes or slides. The professor's notes or slides arguably would qualify for copyright protection, but copyrightability in the notes is a separate issue from copyrightability in the lecture.
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Copyrighability is a interesting word... Now to my comment
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Where did it all start?
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Work for Hire
Telling students to destroy their notes goes well beyond copyright law (even if it did apply which it doesn't because of the fixation issue) since they are entitled to keep any legally made copies.
I have heard a similar line being spun in relation to tour guides - i.e. that you can't record what they say because it is copyright - which is clearly nonsense as they don't read from a script.
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Re:
HA! Try telling pharma companies that....
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Notes
I would say that a notes-for-hire thing would not be infringing, but if someone wanted to, that wouldn't stop them.
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Where's the money?
I suspect that these intellectual elitists are deliberately withholding information in acts of pure prejudice. They should be investigated and stripped of tenure for putting personal and/or political ambitions ahead of teaching. Tenure is a disgraceful mockery of its original intent.
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Idiot...
If that were the case, you'd NEVER be able to do a research paper.
"Sorry professor, I wrote the whole paper but had to destroy it because I used copyrighted researched material!"
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Honestly, the argument put forth on Techdirt is spurious (i.e., copyright is being abused! Look at the absurdity!!), when the issue that MOST professors are dealing with is the destruction of teachable moments. I teach at a university, and in my class, I use activities to highlight the content. I don't have a problem with students selling/distributing/sharing notes on the class, but I am vehemently opposed to my activities being reproduced and/or summarized by note-taking services. This is not because I'm "too lazy" to create new activities (mind you, the activities I use have been honed over time because they work well), but rather than I am concerned that a naive student will see the punchline of the activity before he/she encounters it in class, and thus doesn't learn anything from it (what? A professor wants a student to learn?!? Blasphemy!)
The second issue (which isn't being discussed here at all) is that students often directly reproduce copyrighted works in the note-taking services. For example, they copy quizzes, tests, Harvard Cases, etc. word-for-word in the note-taking packet.
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Note-Taking Service??
Why do students treat classes as an obstacle on the way to a degree? They act like they don't want to LEARN, they just want to get the diploma as easily as possible.
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If it's legal for a student to take notes in the first place, then why would it be illegal to hire someone else to take them for you (especially if it's non-profit)? What about students who are deaf? Even if you can lip-read really well or have a signer, you'd still have to look away to actually write and would miss a lot! And if a dyslexic student makes an audio recording of a lecture to review later, is he setting himself up for a lawsuit? (Bootleg lectures!)
Good lord. If I were an educator of some kind then I, at least, would be thrilled people are trying harder to learn from any lecture I gave.
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Re: Note-Taking Service??
There are a few classes in any degree that are -designed- to fail as many people as possible. Learning has nothing to do with more than a few classes.
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Re:
But using copyright law to keep the surprise in your lesson plans is an abuse of copyright law. I'm sympathetic to your point, but instructors need to find a different way to accomplish their goal, not one that relies on the misapplied force (or threat of force) of law.
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Re:
It's probably not. The professors mentioned are simply threatening their students with law, not actually following through with the lawsuits. (The lawsuit linked to in the story above is not from an instructor, but from a textbook company and it is not yet been ruled on.)
As near as I can tell, no court has ruled on this yet, but the whole thing seems dubious to me.
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What if the lecturer is working from notes?
FYI: I am not in any way a copyright maximalist. Just taking this though experiment one step further.
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Re: Re:
Thanks for the clarification. That it's a textbook put a very slightly different spin on things, as it's a more lasting resource (versus a lecture one must be present to take in). Still, it does seem dubious, as you say. As long as the note-taking service is not producing the work verbatim (or forgetting to cite full quotes), then it's not really overstepping any bounderies, in my opinion. Unless paraphrasing is now illegal as well? It would be awfully hard to write research papers if that became the case. ;-)
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Re:
And btw, it's arrogant to assume that students will learn best by following your particular teaching style. Different people have different methods of learning. After all, this is why we have tests, to gauge the ability of students to absorb information.
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What if the student copyrights the notes?
It seems to me, if in fact the prof wants this done, he should have to send DCMA takedown notices to all of them, for each lecture.
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Re:
I can see what you are getting at that the "spoilers" might ruin the experience of the class. However, I do have to agree with other commentators that this seems to be an abuse of copyright laws.
As an obviously highly educated and learned person, do you believe that the copyright law, crafted by your forefathers, is intended to be used this way.
Disregard the argument for "teaching moments" and "what's good for the student". Simply viewing this as a "applying a correct tool to solve a problem", do you truly and honestly believe that copyright law is applicable and intended to be used this way.
Yes, you can use a saw to hammer a nail into a wood block. But really...
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Re: Work for Hire
Ownership of teaching related material differs from university to university. At the University of Texas, for example, instructors retain copyright to their teaching-related material.
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re
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Re: Idiot...
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Re: Re:
Face it. Profs think they can read minds but they're usually no better than pedophiles hanging out near the unpoliced Indian Reservation. They are hunting prey.
A better academic lesson would be for a student to belittle the prof who sets them up, RECORD that session and keep it for legal purposes. Copyright, my patootie!
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Well, well....
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Re: william
My point is that I (and numerous other professors) want our students to learn something, and we are concerned that *some* note-taking services can do things that hurt that experience. As I noted in my previous post, I don't have ANY problem with students sharing notes. To clarify beyond that, I'm not trying to make an argument that the activities should be shielded under copyright law (unless, again, it's something like a Harvard Case that already has clear copyright protection). What I wanted to post was that the concern that many professors have (and which my department has recently been dealing with, as well) is that we want to educate the students as best as we can, but we feel that *certain* practices used by note-taking services hinder that ability.
To many of the respondents that criticize the whole academic system - you have my sympathies, as you seem to have had a bad experience in college. Just like "real world" jobs, some employees at Universities get burned-out, or are not properly trained to teach (at research institutions, most of the Professor's work responsibilities are related to research and service, with only a small portion of their work-week allocated to teaching students). Please do not generalize your specific experience to the entire population of professors.
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Re: Note-Taking Service??
- "Education is what remains after one has forgotten everything he learned in school."
- "The only thing that interferes with my learning is my education."
I think I've made my point.
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Re: Re: william
Nuff said!
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Re: Note-Taking Service??
I think you've come here to bang a slightly different drum.
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Re: What if the lecturer is working from notes?
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U.S. Lectures are Catagorically Challenged
A lecture is no public performance of the preparation notes (if any) the professor made, at least not any lecture worth attending. The orations, gesticulations, reactions to questions and the like inherent in a professor's teaching are transformative enough to be able to establish its own copyright separate and distinct from its source works, if there is any potential for copyright of it.
Even if there were a copyrightablility of the lecture, the personal interpretation, boiling down and particularization done in order to make note taking make sense to the student would easily put the activity within the realm of commentary and editorializing which would prepare the student for a fight to qualify for a fair use exception to the infringement.
I don't know about you, but, I've never been able to take notes fast enough to get enough things down verbatim to have a need to worry about infringing. More I have a need to worry about being accurate and not missing important stuff. And now that I'm on the other side, I do not consider myself to be the "author" of the notes being taken in the lectures I give. I'm just glad some students are taking notes at all.
And there can be no enforceable requirement for destruction of the notes until there is a proven, established case that 1) a copyright exists, and 2) it was infringed without a legitimate exception. And you can't take the case to court without first registering the copyright with the Copyright Office.
And just what would you send? Pack up the professor in a box and ship him/her off to Washington? I think some students might find that enough incentive to keep taking notes.
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Re: Re: william
I am glad we agree that the legal threat as inappropriate.
As a long time educator, I think you would have to agree with me that student do engage in many academic offenses such as plagiarism, cheating, etc. Note taking is really not that big of a problem compare to those. Heck, note-taking services aren't even an offense of any sort (yet).
In my school life I have attended MANY classes which are basically a note taking session. All you do for the entire time is to take notes, endless notes. Some teacher uses slides. Some teacher hand write the notes each semester on projector sheets. The exams are basically a rehash of the notes to see how much you understand or remember from the notes. Not all educators are like that, but most are (from my experience). However, I do have to point out some subjects are more prone to this, because, well, you can’t really do “activities” for some of the more memorization heavy course.
In light of this, and in the risk of saying, “Hey the educators are the problem!” I propose to you that
1. If a class is passable by a student who just read notes and never attended one single class, is the instructor really necessary anymore?
2. If #1 stands, is it the students who should be punished for using note-taking services, or is it the instructor who should be punished for making him/herself obsolete?
3. If #1 stands, should we try to either legally (through copyright) or academically (through academic offense) try to limit the behavior, or should we embrace the change and consider perhaps there is another way?
More then once in my life I have thought about if instructors are really necessary in a lot of classes. Many times I find that I learn much more in “labs”, which gives the hand-on exercise, than the “lectures” that I have to attend to listen to a Prof talk for 1 hours from their notes, and duplicate the notes on my paper. And if I have the notes, I really could just read about it, skip the lecture and complete my learning in labs, saving me 1 hour from my limited life.
Please don’t take this as an attack to the profession of teaching as it’s not. In my opinion, it’s just that many lectures and notes are “forced” on because “that’s always been the way to do it.” Well, maybe there are better ways.
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Shouldn't Teachers Just Do Their Job ?
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Re:
But it is being abused. And, I do think it's absurd. :)
when the issue that MOST professors are dealing with is the destruction of teachable moments.
Right, but as others have pointed out, the point of copyright law is most certainly not to preserve teachable moments.
I teach at a university, and in my class, I use activities to highlight the content. I don't have a problem with students selling/distributing/sharing notes on the class, but I am vehemently opposed to my activities being reproduced and/or summarized by note-taking services. This is not because I'm "too lazy" to create new activities (mind you, the activities I use have been honed over time because they work well), but rather than I am concerned that a naive student will see the punchline of the activity before he/she encounters it in class, and thus doesn't learn anything from it (what? A professor wants a student to learn?!? Blasphemy!)
No, not blasphemy. Definitely a good thing. But no excuse for abusing copyright laws to achieve that purpose.
To be honest, isn't the real responsibility on the student? A student at a university should be there to learn. If they choose to skip ahead to the punchline, and miss out on the learning experience, isn't that their own responsibility (and loss)? I don't see it as an excuse to abuse copyright law.
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Re: copyright to prevent critic reviews
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Re: What if the lecturer is working from notes?
If I go to see a play, concert, movie, sporting event, or other public performance, I can certainly take notes of what I observed and distribute them in whatever manner, for pay or not, that I wish without violating copyright.
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Re:
Oh for frak's sake. Copyright is supposed to encourage innovation, not preserve the punchline of your old jokes.
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Re: Re: copyright to prevent critic reviews
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stoopid profs claiming copyright
Aside from assertions of copyright in the lectures being a crock of $hit, how the heck do profs expect to enforce these "rights"? Do they think that students don't share notes by email? How naive.
Finally, I don't think there can be a stronger case made for implied license and/or fair use than students taking notes in a university setting. Taking, sharing and comparing notes is what millions of students have done and will continue to do. That's part of the university's educational mission. The university (and the prof, who's getting paid to teach) knows that, and the students know that. Taxpayers, in many cases, have subsidized the classes in the name of public good. And the students (or their parents) have paid big bucks for the opportunity to learn, which includes note taking and sharing. Furthermore, students are expected to take knowledge with them after they graduate. So at the very least, the lecturer and the university gave the students a license to take notes and to keep those notes in perpetuity. If profs want to make money off their lectures, they should go private and do it outside the university setting.
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Re: Work for Hire
This is done either in the employment contract (i.e. affirming that the professor retains his or her rights), University policy, or both. There is no legal doctrine that would support this position: instead, it is something for which the American Association of University Professors lobbied vigorously a long time ago, and the schools never challenged this.
Note, however, that for-profit colleges and universities increasingly are taking an opposite stance: those institutions tend to claim copyright ownership in the intellectual work under the work made for hire doctrine.
As always, educators must read the fine print, as positions and mileage may vary.
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Professors Claiming Copyright Over Their Lectures
I've frequently wondered about the copyright implications of this type of use (the UK doesn't quite have the same generous 'fair-use' defense that the US has). Funding for most UK university courses comes from the tax-payer (HEFCE), not the student fees that make up about one third of the total cost
To help students get their heads around this complex issue I often release Creative Commons-licensed versions of this material, unsure still if that license actually means anything...
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Re: Note-Taking Service??
Why don't the students get off their asses and get to class and take their own notes?
"""
Well, a simple scenario is scheduling hassles. Some classes only have a very few scheduling 'slots', so if you really want to take two classes that have an overlap, I can see a note-taking service being very valuable.
Anyway, the concept of a teacher or professor having a copyright on their teaching material is assinine. It is unfortunate that they are unhappy with what some are doing with their materials, but you know what? Too damn bad. That doesn't mean you pull out a stupid law and try to shoehorn it into a situation to wrest back control that you never really had or needed in the first place.
Just as an aside, I've never heard of a professor flipping out about students bringing in tape recorders, wouldn't that be infringing too?
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Re:
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Re: Re: Re: william
Many schools have been trying to embrace "new media" through the use of blogs, podcasts, message boards, etc. Over the next decade, there will be a major transformation in how knowledge is transferred from educator to student - and I think that's a great thing. Again, as I noted in my last post, just as there are people in "traditional" jobs that resist change, there are people in education that resist change. Yet, many professors want to change the system.
My frank opinion is that most of the problems I encounter in the classroom stem from students' resistance to "different" ways of being taught -- and this resistance most likely stems to their comfort with the lecture-based, multiple-choice test, memorization and recitation system given that this is primarily what they have encountered since they were in 3rd grade. The US government has made all of this worse due to systems like the "No Child Left Behind" program that incentivize teachers to teach to a test, rather than foster creativity.
But to get back to your comments (and to try to wrap this all the way back to the topic at hand), I just hope that people understand that the reactions from professors (such as the one that spurred the original article), although wrong, often stem from a belief that the practice at hand is detrimental to the student. The solution is not to sue anyone and everyone (that's more a cultural issue than anything) or require students to burn their notes, but to figure out how to get what they want (students learning something) in a creative way.
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Class Notes
1. The student paid to be in the class, even if the student is there under scholorship, the student paid to be able to take notes
2. Unless the student was able to write down every word and express the meaning the way the professor or lecturer spoke this copyrighted lecture, it appears to me to be a derivative work, so it belongs to the student under fair use.
There are many other problems I have but the one marked as number 1 seems to be like the professor selling me a book for the class and then being able to take my property away from me.
Totally rediculous.
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Re: Where did it all start?
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