Over the past several years, issues surrounding copyright ownership and classroom lectures have generated heated debate within UC. A 1994 incident in which a non-UC guest lecturer proposed to record and sell to the public his lectures in a UC course provoked such widespread public controversy that The Regents sought explanations, and Committee on the Commercialization of Lecture Materials was formed to explore related questions. Its report was issued in 1995 and is included in the Appendices to this report. More recently, many comments on the first Discussion Draft of the Task Force report focussed on this issue.

In the interest of promoting informed and thoughtful discussion, the following attempts to clarify the complex interaction of law and University policy in this area.

Copyrightable work. Copyright law protects "original works of authorship fixed in any tangible medium of expression...from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." [Section 102(a)] Written lectures, lecture notes, handouts, musical compositions, graphic images, sculptures, software, videotapes and other recorded works may be copyrighted. A video or sound recording of a classroom lecture or performance may also be copyrighted. However, the live presentation of a lecture or performance of a musical or dramatic work is not, itself, copyrightable.

Exclusive rights. The law grants to the owner of a copyright the exclusive right to "perform" or "display" or to authorize the performance or display of the work to the "public." The law also grants to the owner of a copyright the exclusive right to create or authorize the creation of a derivative work, such as a recording of a lecture or performance based on an underlying copyrighted work. However, there may be circumstances in which a recording is not the derivative of a copyrighted work and might belong to someone other than the person whose lecture or performance is recorded.

Educational exemptions. Copyright law allows the performance or display of copyrighted works in face-to-face classroom teaching without permission from the copyright owner. [Section 110(1)] Traditionally, this privilege has facilitated the display of images, playing of videotapes, and the performance of plays and musical works in classroom settings. A more limited exemption allows the transmission of single images and non-dramatic audio to students in a remote classroom. [Section 110(2)] The same exemption could permit playing legally acquired videotapes of lectures or performances that occurred in one classroom for the benefit of students in another.

Interactive software. In classrooms where live lectures and discussions are partially replaced by collaborative work with interactive software, it is possible that larger portions of what takes place during live classroom sessions may be copyrightable. For example, if students and faculty collaborate in composing works from text, images, sound, or data, these works are copyrightable, and all participants in the collaborative work are co-authors. Powerpoint slides and other presentation materials are also copyrightable.

Authorship. In addition to the human creators of original works, copyright law recognizes the employer as "author" of "a work prepared by an employee within the scope of his or her employment." Tradition and existing University policy grant faculty the right to own copyrights in their individual scholarly and aesthetic works. However, the University is the "author" or works prepared by staff as part of their jobs. Thus, when staff are coauthors of work, as, for example, in the case of multimedia works to which staff have contributed software or graphic elements, the University thus becomes coauthor.

University and faculty interests. It is in the University’s interest to promote and foster the scholarly creativity of faculty, including by allocating to faculty copyright in their individual works, as existing policy does. Both the University and individual faculty share an interest in ensuring that classroom lectures and performances are not recorded or distributed to the public without permission from both the University administration and the faculty member. In addition, students have rights of privacy that require that they also grant permission before their classroom participation is recorded. It is inappropriate for either: (1) the University or a third party to record or distribute a faculty member’s classroom lecture or performance without the faculty member’s permission; and (2) a faculty member to record or distribute (e.g., to a for-profit educational institution) classroom lectures or performances without permission from cognizant academic administrators.

Unresolved issues. The complex interaction between the law, new technologies, and University policy requires that the issues surrounding the recording and distribution of classroom lectures and performances be considered thoughtfully over time.

University policy may eventually provide a comprehensive framework for addressing such questions as:

• Should the University intervene when an outside third party records a classroom lecture or performance without permission and sells the recording to the public?
• Should the University retain recordings of classroom lectures or performances when a faculty member leaves the University?
• How should the University protect its investment when it commits substantial staff or technical resources in the creation of classroom works?
• Under what conditions should permission be granted for recording classroom lectures or performances?
• How should the interests of student and staff contributors to collaborative classroom works be protected?

However, policy-driven answers to such questions require institutional consensus beyond what now exists and beyond the ability of this Task Force to achieve. In the meanwhile, a considered, voluntary approach based on mutual agreement and contracts for specific initiatives may be the most effective way to accumulate the experience needed to understand how to promote the intertwined institutional and individual interests involved in the management of classroom lectures and performances.

the act of performance or display is not itself copyrightable. Thus, for a live lecture or performance, copyright applies to the underlying work but not to oral or other presentation in the classroom. Copyright also applies to a video or sound recording of a classroom lecture or performance. As it does for public performance or display, Such a recording is likely to be a derivative of any original copyrighted work underlying the lecture or performance. Since copyright law also grants copyright owners the