The policy linked in the original post does not recommend that all professors take the steps described; after a discussion of commercial class-note services and some potential problems with them, it introduces the recommendations the phrase ‚Äúif a faculty member has decided to limit what students can do with the notes they take while in class …‚Äù

This appears (to me) to be not a draconian crackdown on free exchange of ideas but a way to support professors who don’t want their lectures commerically appropriated. In fact the policy states that faculty own the rights to their lectures (and thus that preserving their IP is their responsibility).

I’m not saying that all is actually well in academia; the AEJMC recently published an article (http://www.aejmc.org/_scholarship/teaching/articles/three.php) by a professor at Kennesaw State describing in loving detail how she came down hard on a student who had recorded a class session without her knowledge. She called it “unethical” and asserted that lectures are automatically protected by copyright. She also advised other professors to take stern measures such as putting copyright notices on all their lecture slides. I wonder if she also assigns seats and makes students spit out their gum.

And yes, we too note the irony that we should engage in this discussion when the purpose of copyright in the U.S. (per Art. I, sec. 8, cl. 8 of the U.S. Constitution) is to encourage learning.

And then there is the irony that the original copyright act in the US was called “An Act for the Encouragement of Learning,” and if I am not mistaken, the Statute of Anne, the British ancestor of US copyright law, was described in the same terms.

Harry Lewis said:

“But what if the professor just uses detailed notes ‚Äî imagine powerpoint slides without the display. Would the student‚Äôs notes, identical neither to the professor‚Äôs notes nor to the professor‚Äôs never-fixed-in-a-tangible-medium lecture, constitute a derivative work from the professor‚Äôs notes? And would it make any difference if the professor brought a recording device with him (or the university provided one) so his lecture was recorded, though never made public?”

The quick and likely answer to the first question would be “no” because the student is taking notes (i.e. a fixation) independently. If the student’s notes are original (including not a verbatim copy of the professor’s notes or slides), then they could qualify for copyright protection separate and apart from the PPT slides.

As to your second question, the recording of the lecture may make a difference in that it remedies the lack of fixation in the prior examples. In this situation (again assuming originality), the question would then become whether the professor owns the recording, or the University owns the recording. Without an agreement between the professor & University that says otherwise (including an employment agreement), or without a University policy that says otherwise, the University would own the recording because it would be the recording’s creator (or author, in copyright parlance).

Again, though, recall that we did mention previously (albeit briefly) that University policy is important here: often a University will not hold the copyright in a professor’s work because of AAUP principles and a longstanding agreement that professors will retain ownership in their scholarly work, which would include lecture slides, notes, and recordings thereof.

We have been presuming throughout, though, that the lecture and the professor’s notes both are original. Those notes (and the lecture that comes from them) both may fail the originality requirement of Section 102(a) if they are mere notes or copies of select quotes from textbooks authored by someone other than the professor.

In a way, though, a lot of this thread suggests something has gone terribly wrong with our copyright & educational systems. We believe in copyright law and a properly calibrated copyright system, but the mere fact that you posted this (and there are comments, and Tweets, and lots of coverage elsewhere), suggests a rather unhealthy preoccupation with rights and who can make money from those rights.

Further, a really great lecture –like a concerto — cannot be reduced to notes on a page; only really rote ones can. If a student can turn a buck selling notes to our lectures (and we do lecture), then vaya con Dios. In our education role, we see our responsibility as being compelling enough to force students to think and engage, rather than just transcribe. We would gather that professors who really challenge students to think likely don’t have this problem in their classes.