An unattractive battle

Sometimes there are cases where both sides make good arguments. Sometimes, though, it’s hard to have much time for either side. And Faulkner Press v Class Notes is one of them. On one hand, you have the rather ambitious claim that notes taken by students in lectures are derivative works of the (protected-by-(c)) lecture given by the lecturer. On the other hand, you have the defendants, a fairly unappealing business that buys lecture notes off students and sells them to those who stayed in bed. Hardly the value of higher education shining through on either side. More from Wired’s Threat Level blog here. Both of tonight’s topics link to that wonderful blog, although I came to them through totally different routes. I’ve been a subscriber for a while and it’s great…

One of the interesting conceptual questions, though, is fixation; if the lecturer writes the lecture (thus creating a fixation which is generally necessary for copyright law) and delivers it it’s one thing, if they just talk in the normal way it’s another, if it’s taperecorded that’s another, and the level of detail in the notetaking can create a further permutation. Another is originality – which, in one of those historical links that make me smile, is the connection between this suit and the classic (and wrong) English case on originality, University of London Press v University Tutorial Press (copyright in exam papers). As it happens, I mentioned this case in a book review last year and, for some reason (lost in the Google universe), the review is a high result when you search for the case name. That scares me, as I only mentioned it in passing. If you want to read a proper article about originality, read the piece by my former copyright law lecturer, Prof. Carys Craig, in the University of Ottawa Law & Tech Journal here (PDF).

Update 1 : this is a case filed in the US federal district court; just at the writ stage, nothing more.
Update 2 : very perceptive comments from Mathias Klang here

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5 thoughts on “An unattractive battle

  1. An unattractive case to be sure, but nevertheless an important question I think. And becoming even more important to lecturers at least as the trend towards making MP3 recordings of lectures and making them available to students online grows. I know nothing about this case – jurisdiction and court level? Will be interesting to see what they say, even for someone like me with no interest in IP law!

  2. There is ancient authority in favour of the lecturer. In Abernethy v. Hutchinson (1824) 3 L.J. Ch. 209; 47 E.R. 1313, the plaintiff delivered his lectures ex tempore, but succeeded in restraining a diligently transcribing student and his publisher from publishing the lectures, in an action not in copyright but in breach of confidence (approved in Caird v. Sime (1887) 12 App. Cas. 326 (H.L.)).

  3. I have to say, I’d feel a little more comfortable about a confidence case than a copyright case. It seems to be a closer fit for the ill that the lecturer seeks to cure. Though, given the power of modern copyright law (especially as compared with that of the 19th century), I can see the attraction of the claim based on copyright.

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