It’s always struck me that the strongest supporters of copyright law run into a lot of problems when it comes to educational institutions. After all, the whole purpose of an educational institution is to share knowledge and information as much as possible and continue to impart those ideas to others. But, it appears that copyright maximalism is seeping into the classrooms as well. In the last couple of years, we’ve seen a lawsuit over a note taking service — claiming lectures are covered by copyright — and a professor demanding that students destroy all their notes at the end of the year since the professor claims he holds the copyright.

Michael Scott points us to a similar story, involving a Harvard grad who is running a non-profit notetaking service. While there’s no lawsuit or anything yet, there is a discussion on whether or not the professors’ lectures are covered by copyright, with Harvard’s General Counsel insisting that yes they are:

“under the federal Copyright Act of 1976, a lecture is automatically copyrighted as long as the professor prepared some tangible expression of the content–notes, an outline, a script, a video or audio recording.”

In response, however, the copyright experts over at Copycense destroy that claim and lay down some knowledge (free of charge) for Harvard’s AG:

Under the current Copyright Act, a work qualifies for protection only once it is original and then fixed in a way that people can perceive it (i.e. the “tangible medium of expression”). This is essentially what Section 102(a) says in basic terms.

The information from Harvard’s counsel is incorrect because a lecture generally would not qualify for the “fixed” part of the equation. What Harvard seems to conflate is eligibility for copyright protection under Section 102(a) and the public performance right under Section 106(4).

But a professor can’t have a public performance right under 106(4) if the work in question does not even qualify for copyright protection in the first place under Section 102(a). And a lecture, in and of itself, does not qualify as a protected work under the ’76 Act because it is not fixed. (There also may be an argument against copyrightability based on originality grounds, but the lack of fixation is certain and terminal.)

The only way we can determine that a professor’s lecture would qualify for copyright protection, assuming it was original, in the first place is if the lecture was recorded. Then there would be two copyrighted works: the lecture, and then the notes or slides. The professor’s notes or slides arguably would qualify for copyright protection, but copyrightability in the notes is a separate issue from copyrightability in the lecture.

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