Copyright Principles in Action

II. Scenarios where Copyright Ownership Issues Can Arise

A. Software Developed in the Teaching of a Course

1. Student-written software

The copyright to software written by a student (or a team of students) resides in the student(s). This is so even though the instructor may have assigned the topic (e.g. "develop room-scheduling software for a university") or provided "architectural" inspiration or helped debug a program or made suggestions for improving scope or user-friendliness or operation (short of writing the program itself). While this relatively narrow interpretation may be contrary to the traditions of academia (particularly in graduate research) where authorial credit may include the Principal Investigator or Committee Chair or Laboratory Director, it is consistent with the Copyright Act. However, as noted above in Part I. A 1, in the Oregon University System, it is conceivable that an instructor who was actively and creatively involved in the work of the students might be included as an author with the student(s)’ consent.

2. Algorithms and copyrighted subroutines

Portions of programs not written by the student authors may be routines copied from other copyrighted works, may be algorithms, or may be public domain software or shareware. To the extent they are copied from other’s works, their use may be infringing (thus requiring permission or a license to build a collective or derivative work) unless their use can qualify as fair use. Of course, it is possible that the student author independently conceived and wrote the program with no knowledge of the other’s identical version. In this case, the use would not be infringing and both authors theoretically could hold the copyright independent of each other. Another possibility is that there was no other way to achieve that programming objective, in which case the "scenes a faire" doctrine would probably apply to make neither of the versions protected by copyright. See e.g. Lotus Development Corp. v. Borland Int’l, Inc., 49 F.3d 807 (1^st Cir. 1992); Morrissey v. Proctor & Gamble Co., 379 F.2d 375 (1^st Cir. 1967). An algorithm (defined as "a step-by-step procedure for solving a mathematical problem or accomplishing some end"), cannot be copyrighted because it is essentially a law of nature or a truism. While its description or memorialization may seem like expression, it is really the essence of an unchangeable axiom or process; it can be "discovered" but not "created". Thus, to the extent the student’s program employed an algorithm, such use would not be infringing because no one could have copyrights to such a sequence of instructions.

3. Programs written by more than one student; user manuals

Typically, advanced programming classes have students working in teams to create software. In this situation, the copyright will be jointly owned by the students although they may well agree to share royalties on an unequal basis proportionate to their contributions as authors. Similarly, user manuals and/or documentation may be written/illustrated by several students who end up being joint owners of the copyright to the manual or documentation.

4. Upgraded versions with different authors

If a different student or group of students or some but not all of the original group of authors write upgraded versions of the original software, the creators of the upgraded version would have copyrights in the derivative, newly-created aspects of the upgraded program. The Copyright Act defines a "derivative work" as "a work based upon one or more preexisting works, such as a translation, musical arrangement … motion picture version, … condensation, or any other form in which a work may be recast, transformed, or adapted …[A "derivative work" consists] of … revisions … elaborations, or other modification which, as a whole, represent an original work of authorship…." The authors of the upgrade would, however, need a license (in fact or implied-in-law) from the copyright-holders of the original version to make use of the original through the upgrade.

5. Assignment for exploitation of the work

Assuming the work were to be commercially viable, student authors may voluntarily decide to assign their copyright to the University (or to some other, outside publisher) for commercialization. In doing so, they would negotiate to receive a healthy portion of the net royalties. The UO Office of Technology Transfer (OTT) would be the appropriate unit to oversee such an assignment/ publication agreement if the University were chosen by the author(s). OTT would then decide whether to produce-distribute/market the software inside the University or to contract those functions out.

Although faculty and GTFs are hired to teach and although lecture notes(for all but the most brilliant persons) are an integral and essential part of fulfilling that employment obligation, the IMDs make it clear that the author retains the copyright to his or her lecture notes if only incidental use of University resources was involved in their creation. Considerable amounts of time could be required to initially develop such notes the first time a course is taught or when the course is changed to become based on brand new reading materials, but, over a longer time period, the percentage of the individual faculty-member’s effort devoted to the development of lecture notes for any particular course should be relatively modest. Of course, if the instructor utilized a team of student workers or the extensive time of paid research clerks or a GTF to develop the notes, that could change the determination of copyright ownership.

If the instructor were to choose to post his or her relatively "raw" lecture notes on a web site available only to students in the class, that should not change the ownership issue. However, if they were cleanly organized and made comprehensive enough to constitute some form of an instructional supplement (either in hard copy or by Internet downloading), they would probably be treated more like a textbook covered in the next section.

... Continue to Part II D