Copyright Principles in Action

G. Scholarly Web Pages and Articles in Electronic Journal

While scholarly research and the publication of the findings and conclusions therefrom are quintessentially educational activities, the resulting articles may not be directly "educational" in the sense of textbooks or class exercises which must be read and understood in the course of taking a particular class or learning a particular skill. Nor may they be precisely "professional" materials since they would not normally be used by practitioners of any particular profession as every-day references or deskbooks or forms. Even with a broader reading of "educational", the Board will allow the author to license or give permission to journal publishers when no royalties are involved. See Part II. D supra for a discussion of hard-copy scholarly articles, the IMD, and the potential of assigning the copyright. The fact that the article is to be published "electronically" (i.e. through an e-mail list-serve or downloaded from a world wide web site) should not make any difference, provided appropriate credit to the author(s) is conferred and notice of copyright ownership (and a priori permissions, if any) is displayed.

If a University faculty member were to establish a web site to display his or her research data or findings, the textual portion at least (i.e. the written findings and conclusions and explanations) would be copyrightable material. The same "educational material" analysis as discussed above for electronic articles should apply. If the web site were accessible from the Internet without password restriction, this should still be acceptable to the Board. However, if user or access or subscription fees were charged to view or download material from the site, the Chancellor’s Office might decide to assert copyrights and require that such commercialization should be handled through the UO Office of Technology Transfer with appropriate net royalty sharing with the faculty creator. In any case, UO students in the professors’s class could not be required to pay any such fees (beyond the generic Technology Fee paid by all students).

If the site was capable of incrementation by third parties, those persons would be authors (and potential copyright owners) of the added text. If the University scholar had added material copyrighted by others directly to the site (as opposed to out-linking to some other legitimate-source URL), fair use/licensing/permission issues would arise. These are discussed in Part VI infra.

H. Multimedia Products

Multimedia products (typically in CD-ROM or video formats) often have multiple "authors". If material copyrighted by persons or entities other than the Board is included in the product, see Part IX for fair use/permission/licensing issues. Even when the product is created completely by University employees, "authors" can include graphic artists, animators, software programmers, composers, photographers, and videographers as well as the faculty person or administrator who wrote the text. As in written works, there may be supporting persons e.g. editors, layout supervisors, quality control specialists, color consultants, composition technicians, etc) who are not "authors" under federal copyright law. However, as discussed above, [link to I. A 1] there may be a possibility under the Internal Management Directives for certain of such persons (those who made substantial contributions) to also share net royalties with the authors.

If the product is originally produced in the New Media Center, there will certainly have been the use of substantial University resources. Some of the creative effort will have been provided by salaried or part-time staff of the Center and the equipment and studio facilities of the Center will have been utilized. In such case, the University will almost certainly hold the copyright. A written production agreement between the Center and the (non-Center-staff ) authors will be required to establish the parameters of editorial control, timelines, grant-back licenses, net royalty determination, and – preliminarily – some formula or concept for royalty sharing among authors and University units. See Appendix E ("Guidance for Determining Royalty Sharing…") for more details on the equities of net royalty sharing among multiple authors/developers.

If the multimedia product was produced by a non-University entity, the faculty author’s University-funded time might be the only connection to the University and the copyright might be jointly owned by the other authors and the University. It is also possible that the product was authored entirely on the University faculty member’s own time (e.g. weekends or summer) and developed on non-University equipment with non-University co-authors/supporting technicians. In such a case, the Board would have no interest in the copyrighted product.

When University support/resources/funding are involved (whether or not from the New Media Center) and the Board has (or will be assigned) all the copyright interests, the UO Office of Technology Transfer will handle production and marketing. Marketing will typically take the form of licensing (possibly in "shrink-wrap" form) of the CD-ROM or selling the videotape. Delivery of the digitized material by direct downloading from a customer-accessed web site is also a possibility (with a "click here" license agreement). Production may be in-house at the University or by a contract producer or by a licensee (who would typically also market). Net royalties (i.e. the royalty stream after recoupment of University development/production costs) will be shared among author/developers and the institution.

If an outside contractor has provided a component of the multimedia product (e.g. the navigational software or composition of a special musical theme), that has no other purpose but to be integrated in the collective work (i.e. the multimedia product) it is arguable that the contractor has granted the University an implied, paid-up, non-exclusive license to use, copy, display, perform, and distribute the contractor’s work as part of the multimedia product. Of course, the parties could negotiate differently including the payment of royalties to the contractor. It is also very possible that the contractor’s work could be deemed a work for hire with copyright going to the University (this assumes the University funded payment of the contractor).

I. Video of a Class

Assuming the video camera was only focusing on the instructor, the instructor would be the author and his expression (the lecture) would be "fixed" by the video recording (technically an "audio visual work"). The video cameras (and possibly the studio in which the class was filmed) would most likely be University-owned and the camera operator would most likely be a University employee thus making the use of costly institutional resources (at least in the fixation aspect) obvious. On the other hand, the Internal Management Directives state that "lecture notes… normally shall be viewed as flowing from individual effort" providing there has been "only incidental use of institutional" resources. A video of the real-time, total lecture is not the same as the informal (and possibly sketchy) lecture notes that supported that lecture so the video is likely to either be deemed a work for hire by an employee in the scope of employment or to fall under the IMDs requiring assignment of the faculty person’s interest to the Board.

Even if the Board has or receives the copyright, the professor will certainly have a royalty-free license to use a copy of the video tape for her resume or evaluations, for students who missed her class to "make up" the lecture, for students who wish to review the content, and for her to study for improvement of her classroom presentation.

If the video is transmitted "live" to a remote site for distance learning by the University’s students, the tuition received from the remote students could conceivably be considered commercialization revenue. However, it is much more probable that the professor would be deemed to have given an implied license for such "distribution" and would not be entitled to a royalty. Of course, the additional students would be credited to the instructor’s productivity (larger class, more credit-hours). If the class were interactive as to the remote students, the instructor might have a more difficult preparation and this could be noted to her credit in terms of workload.

If the instructor were to hold the copyright (or if the Board waived its interest in the copyright of the video lecture) the University would likely insist on the option to retain an archival copy and an evaluation copy.

If the class were interactive and the video camera (or its microphone) recorded student contributions, it is possible that each student would hold the copyright to his or her recital. This could be handled by a written permission from each student to record, copy, perform, and distribute the class contribution of that student. Another solution might be to have the camera/microphone only record the instructor who would then paraphrase the questions/responses/comments of the students (e.g. "it has been asked how …."). Another solution might be implied permission (if the video-taped/interactive nature of the class was disclosed to students before they registered); still another might be the doctrine of "fair use" discussed in Part III. B 1 infra.

If the video was to be marketed for use by non-University students (e.g. to other universities, to large employers for in-house training, to broadcasters, or to individuals wishing to self-learn), the instructor should be able to share in the net proceeds or net royalties.

... Continue to Part III