With classes back in session at most American universities and colleges, students may be looking for note taking or studying shortcuts to ease them through the semester. The sharing of course notes, lecture recordings, and exam copies has become more than a friendly gesture by former students; it has become a growing commercial enterprise by brick and mortar and online entities. A couple years ago the web site Course Hero began to attract scrutiny from teachers and administrators when it offered to students a monthly subscription to access its vast repository of uploaded course materials (or earn credits for access in exchange for uploading their own materials). Secondary to the concerns of academic integrity was the concern that the intellectual property rights of professors had been violated. Many educators are concerned that their original and creative work product, such as stylized lecture slides, detailed course handouts, and well-prepared syllabi, are being made available without their knowledge or permission. Course Hero, by its own admission, does not police content uploaded to its site. Rather it relies, much like You Tube, upon the vigilance of copyright holders to file with the company a take-down request pursuant to the Digital Millennium Copyright Act. To help counter the problem, universities have adopted policies prohibiting students from sharing course materials or have devised informational sites for faculty to assist them in locating infringing downloads and requesting take-down.
To date, no litigation has arose as a result of Course Hero or sites like it. However, a copyright infringement action is pending in a Florida district court concerning the sharing of course information and may answer the question of whether sharing of course materials actually qualifies as fair use. The lawsuit was filed after the lecture outlines and film study questions prepared by a University of Florida professor were copied and packeted for resale by a local copy shop. The professor had transferred his copyrights in the materials to a publisher, who filed the infringement action. This past June, the district court ruled on the cross motions for summary judgment. Recognizing that the text materials were protected by copyright, the district court denied the plaintiff’s motion for summary judgment on the infringement claims on the ground that questions of fact for a jury existed as to whether the copying constituted fair use. The court wrote:
Works that are original, fictional, and unpublished enjoy more protection than works that are derivative, factual, and published. [The] works as a whole are derivative, factual, and published. Furthermore, his film study questions and practice questions are factual compilations. Copyright protection extends only to the selection and arrangement, not to the underlying facts themselves, and “[t]his inevitably means that the copyright in a factual compilation is thin.” Feist. 499 U.S. at 349…Other factors in determining fair use include the purpose and character of the use, the amount and substantiality of the portion used, and the effect of the use on the market or value of the copyrighted work. 17 U.S.C. § 107. The parties have presented various arguments for and against a finding of fair use. Genuine issues of material fact remain for a jury to determine regarding fair use.
The outcome of this case, much like the outcome in the Georgia State e-reserves lawsuit, has the potential to greatly impact our understanding and application of fair use. It will also impact the validity of sites like Course Hero and any other entity profiting from the sharing of course materials. (Note – the work for hire doctrine is not at issue in this case, even though a university as employer could claim copyright ownership in course materials because the university in the case had already disclaimed any interest in these materials.)