Intellectual Property

There was an article in Sunday's Boston Globe that caught my attention having to do with intellectual property.  Briefly it seems that there are some litigations over web sites that provide copies of student notes for various college courses.  The colleges or professers assert that such sites violate their copyright in the material.

These cases are interesting on several grounds and present some interesting legal and common sense issues.

Consider first, does a professor have a copyright interest in the course taught?  Here I note that a college professor is an employee of the college.  Thus arguably any course materials that the professor creates is a work for hire and it would be the college not the professor that would have a copyright interest if one existed just as any work for hire belongs to the employer not the employee unless otherwise stipulated by contract.

Beyond the question of who, if anyone, holds the copyright interest in the course (not the student's notes) for any copyright to exist the course must be reduced to durable materials; that is course notes, presentations, recordings, and the like.  In todays colleges that is often the case so arguably a copyright can in fact exist.

Now comes the issue of the student's notes.  The student bought the course by paying the college to attend it.  Thus the student has a fair use interest in the course copyright just as a student has a fair use interest in any textbook the student buys.  Student notes are a work of the student not the professor or college and within the domain of fair use the student is entirely free to use those notes.  That's fairly settled law.

Finally we get to the issue of the use of the student notes.  Here's where things get interesting and a bit muddy. 

Suppose that a student takes notes and shares them with a study group.  Is that a copyright violation?  Is it within fair use?  The practice is common and often encouraged by professors.  Common sense says this is not actionable.  So in principal a student CAN share class notes with others without violation of copyright even if one exist.

But what if the student shares outside a study group?  Say a club such as a soriety.  Again the practice is common although generally not sanctioned and has not been a cause of action to my knowledge.  So in principal a student CAN share with an arbitrary outsider without violation of copyright.

Now suppose our student places the notes on a web page, say a personal web page?  Is this any different than placing the same notes in a group's file cabinet?  Does the fact that the scope of access is not NOT RESTRICTED to a group change things? 

Here things get a bit more complex.  Consider that if a newspaper wishes to publish a copyrighted picture or article, the newspaper must obey the copyright.  Even if the publication itself is free the publisher must get permission of the copyright holder before publishing.  So the issue of charging for the student's notes is not in and of itself a factor.

But the student's notes on the web are NOT the original copyrighted material, they are the student's interpretation of that material.  Rather like a sketch of a famous person in a cartoon, say a satirical cartoon.  Even though the famous person has a property and copyright interest in their image they can not enforce that interest on either the author of a cartoon or the publisher.  Here as well common sense argues against a copyright issue.

Consider, however, that the college has a business interest in selling access to courses to provide the student familiarity with the course's intellectual property.  Does publication by a student of notes taken by the student who paid for the course violate the colleges business interest or intellectual property interest?  Intellectual property law is a murky area.  Even so, common sense suggests that since the college and the professor (who is after all an employee and presumed to be party to the college's business proposition) engage in teaching, that is conveying intellectual property to students for the student's future use, that any claim based on intellectual property fails.  That is common sense says that any claim that the use of intellectual property violates an intellectual property right when the underlying purpose of the college's business is the CONVEYANCE of intellectual property fails.

All things considered then, it seems to me that common sense sides with placing student notes on the web without copyright violation.