UCD Directives

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 and http://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,).

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

99-134

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