Copyright Principles in Action

Textbooks, class workbooks, mini-treatises (e.g. "Introduction to Sociology in a Nutshell") all constitute "educational materials". While it is conceivable that all the author’s effort in writing such a work could have occurred during non-University-compensated summers, or at times which added up to the equivalent of one day a week, and that all the supporting research and verification and proofreading could have been done solely by the author or by others not compensated by the University, that would seem rather unusual. Thus, in some cases, these works will have been developed with the use of significant University time or funds suggesting that the copyright should be assigned to the Board (with net royalties to be shared with the author) under the employment relationship even though not required by federal copyright law. Even where assignment to the Board is called for, a Publication Rights Agreement may contain negotiated provisions leaving some aspects of control with (or shared with) the faculty author (e.g. revisions, royalty-free licenses for derivative works, author’s copies, etc.)

Textbooks are often co-authored. If one or more of the co-authors are not UOS employees, the copyright will be jointly held. If federal copyright law or funding grant terms do not require otherwise, copyright ownership for each of the joint owners will be determined by their respective employing institutions.

Research reports are often related to University contracts with government agencies or private-sector entities or research sponsors. In such cases, whoever owns the copyright under federal law may have a contractual obligation to assign it to someone else. Authors of such reports must consult their grant administrators or the Office of Research Services & Administration for guidance on such questions. Absent a specific commitment to a funding agency or contractor, the Board will probably own the copyright under the Work for Hire doctrine.

Scholarly articles typically do not generate royalties for their authors (although they sometimes do for journal publishers through intermediaries such as the Copyright Clearing Center or Uncover). A few, perhaps, can be written quickly and easily, but many require extensive research either in the field, the library or the laboratory. Thus staff time and use of University equipment may well be involved in preparing to write the article. The IMDs provide that the Board’s copyrights do "not preclude an institution employee from granting copyright privileges to the publisher of a scholarly or professional journal when no compensation or royalty is involved." This is consistent with the University’s mission to disseminate knowledge and is in a context of little or no realistic commercialization possibilities. In this situation, the Board essentially authorizes the author(s) to act as its agent to license the journal publisher. Where the publisher seeks a formal assignment of the copyright (as opposed to permission to publish or a limited license) the UO’s Office of General Counsel should be consulted to have the OUS Vice Chancellor for Finance & Administration approve the assignment or to execute a waiver of Board interests.

E. Music

If the University commissioned a musical composition, it would not own the copyright (absent a contractual commitment from the composer to assign it to the Board) unless the music was commissioned to be a part of and was synchronized into an audio-visual work produced by the University. If a University employee composed the music (note it is not having or even mentally refining the idea or concept of the melody/ harmony /voicing which is copyrightable, but rather the creation of the musical notation (or the recording of the performed concept) which confers the copyright) while at work at the University – but not as a specific task assigned by the Dean – the first question under the Internal Management Directives would be whether the work constituted "instructional or professional material". Unless the "music" was purely for practicing an instrument (e.g. piano exercises) or for demonstrating a technique of composing or for demonstrating a manifestation of music theory, it would not seem to fit that criteria and the University would likely waive its interest in the copyright. Of course, if the composer worked at home or off-campus on weekends using his or her own synthesizer or other instrument and did his or her own notation, there would be no question of Board rights regardless of the nature and purpose of the work. The same principles would apply to a lyricist.

If a University employee, in the course of his or her work, performed a musical work and recorded it, the performer(s) would putatively have the copyright for the recording (a "fixed expression of a creative work") on the theory that their particular rendition/interpretation of the composition is, itself, creative. In the music recording industry, performers typically agree to surrender their recording rights to the record or CD-producing entity or to their orchestra or opera company employer in return for royalties or service fees. Most performances by University faculty are likely to be on the faculty member’s own time ("one day in seven" doctrine) and at an off-campus, non-University-controlled location and thus not sufficiently connected to the University to raise the issue of assigning the copyright to the Board. Performances by University employees in the Bach Festival would be a hybrid situation: for most performers it is unlikely they would be performing in the course of their employment (in an extreme case, a gifted Bach Festival musician might only coincidentally be an English professor) yet, by employment contract with the Festival, he or she would likely assign performance copyright interests to the Festival producer (the Board).

In addition to the above composer/lyricist/choreographer situations, "derivative" copyrights can be held by arrangers and by composers who do "variations on a theme by ______". These persons usually must obtain a license from the copyright holder (assuming the piece is not in the public domain) but then can create their own transformative work based on the original composition. The foregoing analysis of ownership (or right to assignment) of the copyright would apply to these copyrights as well.

Even composers or performers who are not obliged to assign copyrights to the Board (e.g. students) might decide to make such an assignment if they believe the University could successfully publish/distribute or license the music. Such individuals should work through the UO Office of Technology Transfer.

F. Instructional Web Pages

For the sake of discussion, it will be assumed that all original, copyrightable content in the web page was created by University employees, faculty or otherwise. For a treatment of fair use and the copyright interests of third parties when this is not the case, see Section VI, infra. It is somewhat more likely that significant University resources will have been utilized in the creation of web pages. Unless the content author is adept at JAVA (or some equivalent) programming and development software, he or she may have utilized University staff to create the site. This is not to say the technical staff employing site-producing software would have acted as authors. The textual content of the site will have been created by the faculty author, not the site-builder. Nevertheless, under the Internal Management Directives, such assistance will quite possibly constitute the use of significant University resources. Of course, if the University employee wrote the content on her own time, without uncompensated use of University equipment and either did the JAVA work herself or hired (at her own expense) some third person to do it for her, no University resources would be implicated and the copyright should be hers.

If a University administrator were to be tasked with developing the content, the work-for-hire doctrine would give ownership of the copyright to the Board.

If the Board ended up with the copyright, the employee-author would almost certainly be granted a royalty-free license to use and revise the web site in his or her course at the UO (with access restricted to matriculated UO students) and would share in net royalties if the right to copy, display, and distribute the website content/format/links could be licensed to other non-OUS institutions (with adaptation rights). A faculty author might also negotiate for the exclusive right to use the substantive content of the site in any scholarly or creative works that did not compete with the University’s actual or planned use of that content (subject to other policies e.g. writing of textbooks). Another subject of negotiation (as in the case of books or multimedia works as to which the University holds copyright) would be judgments about revisions/updates and who would do them.

... Continue to Part II G