Faculty Course Materials, Strategies for Dealing with Commercial Use
COMMERCIAL USE OF COURSE MATERIALS
The Office of Legal Affairs frequently receives complaints from faculty members who have discovered their course materials, lectures and exams are being copied and distributed without their permission. The University offers this statement to help faculty understand this issue and, if they choose, develop appropriate practices to protect themselves.
Who Owns Copyright in Course Materials?
In accordance with the University of Maryland Policy on Intellectual Property, instructors of the typical face-to-face course own the copyright in all original course materials they create, including written lectures, power point presentations, study materials, and tests (Course Materials) and in the selection of readings and assignments for their course; e.g., course syllabus. Course Materials are protected by copyright because they exist in a tangible medium, e.g., written, electronic, audio-visual, and are the original works of the faculty. The fact that instructors may use learning management systems to deliver some Course Materials does not change the fact that they own the copyright in those materials. Lectures are not protected by copyright, even if they are original, unless they are recorded or delivered from written notes. In sum, while faculty members do not own copyright in the facts and ideas contained in their Course Materials, they do own copyright in the selection and their expression of those facts and ideas.
When a faculty member is assigned the task of creating an on-line program of instruction to be delivered almost exclusively on-line, whether or not as part of an on-line degree program, the University and faculty member should enter into a written agreement that addresses ownership of copyright, and who bears responsibility for teaching and updating the Course Materials.
What Rights Does Copyright Give Faculty Members in Their Course Materials?
As the owner of copyright in Course Materials, faculty members hold the exclusive right to reproduce, distribute, modify, make derivative works from, and post and display publicly their Course Materials. The creating faculty members are the only persons who can exercise those rights unless someone has a right to claim their exercise of one of those rights falls under "fair use" or another exception from infringement under copyright law.
There are several obvious examples of "fair use" of Course Materials: (1) Faculty members would not view notes students take of their lectures as an infringement of the instructors' copyright in their lectures. (2) Faculty members also would probably not object to students giving a copy of class notes to a friend who missed class. (3) And finally, faculty members must grant students with certain types of disabilities the ability to record lectures as a reasonable accommodation. Aside from these and other fair uses, persons who reproduce, distribute, post online or make derivative works based on Course Materials for any purpose other than their own personal use may be found to have infringed the copyrights of faculty in their Course Materials.
Commercial Uses of Course Materials
A number of businesses have cropped up whose livelihood depends on students submitting faculty-owned Course Materials to the company which then sells them. See "Course Hero or Course Villain," Inside HigherEd (Oct. 6, 2009) (http://www.insidehighered.com/news/2009/10/06/coursehero, last accessed May 13, 2013).
Two of the better known current online commercial suppliers of faculty-owned Course Materials are Course Hero (Course Hero.org) and Note Hall (notehall.com). Course Hero advertises that it has the "Largest Collection of Student Documents Online: Over 7 million study documents; Study guides, lecture notes and practice problems; Quality content from your peers." (http://www.coursehero.com; last visited May 13, 2013). Students have 2 options to access documents: (1) pay an annual fee or (2) upload materials from their courses for a subscription credit. The site's University of Maryland database lists hundreds of courses whose materials are posted on the site. (http://www.coursehero.com/sitemap/schools/4634-University-of-Maryland/ last visited May 13, 2013). Note Hall (http://www.notehall.com/) advertises itself as a "marketplace for study guides, lecture notes, outlines, and reading notes." The University has also received reports of other companies that pay students to supply course handouts. Those companies place their own copyright notices on the materials and sell them.
Strategies to Protect Course Materials
Because faculty members own the copyright in Course Materials they create, the University may not undertake to provide them legal representation when those copyrights are infringed. The University may provide guidance to faculty on how to protect their copyrights but it is up to each individual faculty member to decide what actions to take, if any. We offer several ideas. Because some students have uploaded or sold exams and exam answers to these companies, faculty members may want to take additional precautions surrounding access to exams such as avoiding take home exams or requiring students to place answers to an exam on a paper that is separate from the exam and only return the answer sheet. And, depending on how you feel about students recording your lectures with their smart phones, you may want to address that in your syllabus, e.g., recording for personal use is permitted with permission.
- Include a statement about copyright in your course syllabus. Faculty members should include a statement about copyright in their course syllabi. The statement should state that faculty members hold copyright in the Course Materials they create and, as a result, students are not allowed to reproduce, distribute, or publicly post their Course Materials without express faculty permission. To ensure lectures are protected by copyright, faculty members should either record them or deliver them from written notes. A suggested syllabus statement follows.
"My lectures and course materials, including power point presentations, tests, outlines, and similar materials, are protected by copyright. I am the exclusive owner of copyright in those materials I create. You may take notes and make copies of course materials for your own use. You may not and may not allow others to reproduce or distribute lecture notes and course materials publicly whether or not a fee is charged without my express written consent. Similarly, you own copyright in your original papers and exam essays. If I am interested in posting your answers or papers on the course web site, I will ask for your written permission."
- Include a copyright notice on your Course Materials. Faculty members may want to include a copyright notice on Course Materials to emphasize that they are protected. The form of the notice should contain the word copyright or then © symbol, the year the materials were created (multiple years may be listed when new material is added in different years) and the name of the faculty member. The instructor may want to add notations to the notice such as "All rights reserved" or "Authorization is given to students enrolled in the course to reproduce this material exclusively for their own personal use." Note: copyright protection is not contingent on including a copyright notice on your Course Materials. The materials are protected as soon as they are created. However, including a notice reminds students of faculty ownership and copyrights and of students' obligations to respect those rights.
- Advise students that selling or distributing your Course Materials may violate the Code of Student Conduct. The Office of Student Conduct in the Division of Student Affairs encourages faculty members to include the following additional statement on their course web site or syllabus:
"Persons who publicly distribute or display or help others publicly distribute or display copies or modified copies of an instructor's Course Materials may be considered in violation of the University Code of Student Conduct, Part 9(k)."
- Respond to solicitations for commercial note takers. Some faculty members have reported that commercial note companies have used aggressive recruiting and selling tactics in their classes. Faculty who observe a person soliciting students in or outside a class to "take notes" for a company or trying to buy notes from students may (a) ask the person for identification to determine if h/s is enrolled in the class, (b) ask the person to leave or stop soliciting and (c) if the person refuses to leave or to stop soliciting, contact University Police at 405-3555 to have them remove the person or file a report with them. Faculty members may want to include this information on their course syllabus as well.
- Post your lecture notes and other Course Materials on a course web site. Faculty who distribute hard copies of their lecture and course notes to students may want to consider posting them on a course web site on the theory that, by doing so, students will have no reason to support companies that are illegally distributing your materials.
- Send a copyright infringement notice to any company you learn is distributing your Course Materials without your authorization. U.S. copyright law contains a process whereby copyright holders can demand that online service providers disable access to or remove material that has been posted on a web site without the copyright owners' authorization and in violation of copyright law. These notices, sometimes referred to as DMCA notices (Digital Millennium Copyright Act) must contain specific information that is specified in the law. Notices must be sent to a company's "registered agent," a person the company has designated to receive notices of infringement on its behalf. These agents must be registered with the U.S. Copyright Office. You may read more about the DMCA at http://www.copyright.gov/onlinesp/.
If you find a company has posted and is distributing your Course Materials without your permission, use the Model DMCA Notice (.docx) to give them notice of that infringement. You will need to insert the required information and then send the notice to the company's registered agent. Notices to Course Hero should be addressed as follows:
Course Hero, Inc.
805 Veterans Blvd, Suite 109
Redwood City, CA 94063
Fax: (408) 716-3204
Attn: Andrew Grauer, DMCA Registered Agent
Notices to Notehall.com should be addressed to:
Santa Clara, CA 95054
Fax: (408) 521-0400
Attn: Robert Chesnut, DMCA Registered Agent
If the company is not CourseHero or Notehall, you may find its contact information and registered agent through the U.S. Copyright Office website @ https://www.copyright.gov/dmca-directory/
The Model DMCA Notice (.docx) complies with the statutory requirements. A service provider that receives a proper notice under the DMCA is legally obligated to take down or disable access to the specific material you identify in the notice and to advise the person who provided the material of your claim of infringement. Please note that any substantive changes you make to the Model DMCA Notice (.docx) may render it noncompliant under the DMCA. A service provider does not have to take action on an improper DMCA notice.
- Office of Legal Affairs for general information about copyright (5-4945)
- University Libraries Copyright Guide: http://lib.guides.umd.edu/copyright
- Project Nethics for information about copyright and online course materials (www.nethics.umd.edu)
- Office of Student Conduct for information about reporting potential copyright infringing actions (http://studentconduct.umd.edu)
- Campus Copyright: Rights and Responsibilities (2005), online publication of the Association of American Universities and others about copyright and copyright issues on university campuses (http://www.educause.edu/library/resources/campus-copyright-rights-and-re...).
This website is provided as a resource for learning basic legal competencies on a variety of topics that affect the university.
Disclaimer Notice: These materials are presented here for informational purposes only and do not constitute legal advice on a particular matter. Legal advice must be tailored to the specific facts and circumstances relating to an issue. For legal advice on a particular university matter within your official responsibilities, please consult with a member of the Office of General Counsel.