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
Basic Introduction to
Copyright Law
2
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
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
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
Copyright Protection
6
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
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
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
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Copyright Ownership
10
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
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
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
13
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
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
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
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 noncredit courses.” (PCIP Section I.B.4)
17
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.”
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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.”
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UT Ownership Summary
Owned by Faculty Member
Owned 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)
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Questions/Comments?
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