1. Ownership of Intellectual Property: Textbooks and Inventions Frank Lancaster UT Office of the General Counsel Presented at The University of Tennessee Martin March 12, 2015 1

2. Basic Introduction to Copyright Law 2

3. What is a Copyright? A copyright is the legal right to control original expression – to exclude others from making copies (it is literally the “right” to make “copies”). A copyright owner has the exclusive rights (subject to specific exceptions) to: o Reproduction (Making Copies) o Performance and Display o Distribution (Publication) o Creation of Derivative works (Adaptation)  Example – turning a book into a movie 3

4. Constitutional Basis of Copyright Law Article I, Section 8, Clause 8: “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors … the exclusive Right to their … Writings.” 4

5. Copyright Policy Purpose of copyright law: Benefit the public Method of achieving the purpose of copyright law: Incentivize creators to create by giving them a period of exclusive right to profit from their creations Copyright law is an ever-changing compromise/optimization between these competing interests 5

6. Copyright Protection 6

7. What Does Copyright Law Protect? Copyright protects expression – not facts or ideas What is protected is how you say it, not the substance of what you say (Ideas can be protected by patent law if novel, useful, and non-obvious) 7

8. Protectability Requires Originality Key to Protection: Originality Lenient standard  Independent Creation = Non-Copied  A Modicum of Creativity – “[T]he requisite level of creativity is extremely low.” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991). 8

9. When Does Copyright Protection Start? A protectable expression is protected from the instant it is fixed in a tangible medium of expression = Recorded in some concrete way Registration with Copyright Office and Notice (© – the “C in a Circle”) are not required for protection 9

10. Copyright Ownership 10

11. Who Owns the Copyright – Generally The copyright is the property of the author(s) who created the work “Joint Authors” are co-owners of the copyright in “Joint Works” o Being a “joint author” requires (1) a mutual intention to create a jointly-owned work and (2) contribution of something independently copyrightable 11

12. Key Exception to Author Ownership – Works Made for Hire The employer is the author of and owner of the copyright in a “work made for hire” “Work Made for Hire” = o Created by employee in the scope of employment o Created by a non-employee pursuant to a written agreement making it work for hire  Has to fit in statutory categories (examples – translation, instructional text, test, answer material for a test) 12

13. Who Owns the Copyright – At UT Statement of Policy on Patents, Copyrights, and Other Intellectual Property (“PCIP”) o Changes the general legal rule on “works made for hire” in favor of faculty members o Available at http://utrf.tennessee.edu/PDF/IP_Policy.PDF http://utrf.tennessee.edu/PDF/IP_Policy.PDF 13

14. General Concept of Copyright Ownership under PCIP Faculty member created on his or her own, without special funding, assistance, or assignment: Faculty member generally owns. Faculty member created with help of funding or assistance from others, or under a special assignment: University or third-party generally owns, or owns jointly with faculty member. Textbooks/Teaching Materials – Special Rule 14

15. Key PCIP Copyright Provisions Sections II.E.1 and II.E.2 say a faculty member does not own the copyright in a creation if o It is sponsored work and agreement says so o It is created with substantial use of University funds or facilities  Section II.C says this does not include payment of salary from unrestricted funds, provision of office or library facilities  Section II.E.3 says “The University does not assert any rights to copyrightable materials … prepared without substantial use of University funds or facilities.” 15

16. PCIP Copyright Provisions Continued Teaching Materials/Textbooks – Faculty Member Generally Owns Section II.E.2 says: “The rights to textbooks and monographs; other teaching materials, including software developed to support instruction; scholarly and literary publications; and arts and crafts remain with the creator unless such works have been commissioned by the University or have been developed under a sponsored agreement.” 16

17. PCIP Copyright Provisions Continued Mediated Course Materials – Defined o “Mediated Creations” = “Technology-based academic materials developed for live or delayed communication via video, audio, CD-ROM, computer, Internet, or other electronic means now known or hereafter developed, including the software developed to support electronic instructional content for both credit and non- credit courses.” (PCIP Section I.B.4) 17

18. PCIP Copyright Provisions Continued Mediated Creations – Faculty Member Generally Owns (PCIP Section II.F) o “When a University employee develops mediated course materials without substantial use of University funds, facilities, and/or other employees, ownership of the materials belongs to the creator.”  “Ordinary access to libraries, computers, networks, and course management systems does not constitute substantial use.” 18

19. PCIP Copyright Provisions Continued Specially Commissioned Work – Subject to Agreement (PCIP Section II.F) o “[W]hen any University employee is given specific direction from the University as a special assignment, contractual arrangement, and/or within the scope of their employment to create or enhance specified mediated course materials, a contract signed by an authorized University official and the employee(s) shall define in writing the rights of the parties.” 19

20. UT Ownership Summary Owned by Faculty MemberOwned by University or Third Party Sponsored Work√ Created With Substantial Use of University Funds/Facilities √ Created Without Substantial Use of University Funds/Facilities √ Textbooks/Teaching Materials √ (unless specially commissioned) Mediated Creations√ (unless specially commissioned) 20

21. Questions/Comments? 21