12 Alb. L.J. Sci. & Tech. 231 (2001-2002)

     This article looks at the principle of the academic copyright and explores its relevancy to today.  The part that I focused on was section on academic freedom: how much liberty can a professor or teacher take with their actions or research before the employer intervenes.  It has generally been argued that professors should have more freedom to explore controversial topics than other professions since their primary goal is advancing the general good; particularly through interactions with their students.  This cannot be done with the threat of censorship hanging over them constantly.  However there must be a balance.  Professors must also know that they represent their employers and that because they can have a much more public image than other comparable employees at other places of employment they must present an appropriate image.

     This issue is emerging again because the definition of a professor is undergoing change.  Before it was understood that professors had lots of interaction with their students and that this interaction was one of the primary reasons that academic freedom was essential.  However now that distance learning is emerging, there is the question of whether professors are becoming less interactive.  Generally it is understood that while the professor-student interaction is no longer immediate the professor can still interact with them as much if not more than previously and therefore the maintenance of academic freedom is essential.  

     This academic freedom is one of the prime factors behind the teacher exception, if a professor is taking more responsibility over their own statements and the university is backing off and allowing professors to exercise their own will without oversight, then it can fairly reasonably be argued that these statements by the professor are their own and not copyrighted by the university.

    The concept of academic freedom in and of itself does not impact the case Mauro v Allentown directly.  But by understanding the background of the teacher exception we can look more critically at the case and understand some of the nuances better

15 Yale J.L. & Human. 1 (2003)

     This article delves into the origins of the work for hire doctrine.  In order to properly understand the Mauro v Allentown case it is important to understand the basis for the plaintiff's principle argument.  The article does not specifically address the relation of the teacher exception to the general work for hire principle, however it does evaluate several aspects of the work for hire doctrine and how they apply to various media.

     For the purposes of this project I focused mostly on the law authorship subsections.  I did this because that section had the most relation to academic copyright.  This section looks first at the case of Wheaton v Peters from 1834.  The case affirms the ability of a reporter to hold a copyright on the proceedings and decision of a court case.  This situation bears similarities to a professor copyrighting his lecture notes or similar works, which was later affirmed in Williams v Weisser (also tagged).  The similarity exists because in each case the base of work is generally available; either as ideas and facts in the case of lecture notes or government documents in the case of court proceedings.  What makes them copyrightable is the fact that they contain a ‘web of expression.’  Court reporters were not able to copyright the actual opinions of the judge but everything else they recorded could be, including the way they ordered the arguments.  In the same way professors cannot copyright the individual facts used, but they can copyright the order and style used to present them.

     This freedom began to change in the late 1800s.  Up until this point it was generally understood that employees could hold their own copyrights and use them as they saw fit.  Around this point though several cases were decided that began to erode that right.  In each case there was little immediate harm done, since there were always mitigating circumstances which weakened the impact of awarding employers copyright instead of employees.  After these clauses were inserted there was little use for them.  The courts continued as they had been: awarding copyright to authors on other circumstances, but always including the clause stating that the employers could control the copyright.  The change in philosphy came subtly when courts began to see the contract between employer and employee implicitly granting the copyright to the employer instead of vice-versa.  This decision was based on previous court decisions that had never actually given the copyright to the employers, but instead always found a loophole to give the rights to the employee.  Once the philosphical chage occured it became necessary for an employee to have a contract to keep their rights, instead of a contract to give the rights to the employer.  This was enshrined into copyright law in the 1909 copyright act and further defined in the 1976 act.

4 Minn. Intell. Prop. Rev. [i] (2002-2003) 

     This article explores the future of the teacher exception.  It notes that there is a lot of flux in the current academic situation with the advent of digital classrooms and the commercialization of many universities and schools.  This article does a very good job exploring the history of the teacher exception and comparing it to the general work for hire doctrine.  It discusses the various court cases that formed the basis of the work for hire clause and also the teacher exception.  It also takes a look at the creation of the current 1976 Copyright Act that defined in very clear terms the work for hire clause and also according to some interpretations eliminated any form of the teacher exception.  After evaluating most of these cases the author comes to the conclusion that the teacher exception is still alive, but only because of tradition.  The two most recent cases, Hays v Sony and Weinstein v UIllinois have allowed the teacher exception to persist, but neither judge made any kind of definitive ruling on it.  This means that the teacher exception could be eliminated very easily by a strict interpretation of the Copyright Act. 

     Given the precarious nature of the teacher exception the author sees it atrophying, particularly as more and more schools expand into the digital age and want to control how content is available to their students regardless of the intentions of the teacher.  The author looks at another article (Who Owns Course Materials Prepared by a Teacher or Professor?  The Application of Copyright Law to Teaching Materials in the Internet Age by Holmes and Levin) http://proxy.library.upenn.edu:8120/login.aspx?direct=true&db=keh&an=2919775 (also tagged) that argues for the teacher exception and evaluates their arguments.  After finding several new arguments against their reasoning in light of recent developments the author comes to the conclusion that the teacher exception is in danger of being eliminated simply because in today’s society there has finally emerged a way for universities to profit from professor’s lecture notes, where twenty years ago there wasn’t.

     This means that for Mauro v Allentown the case supporting Mauro’s statement that he owns the medley is weakening by the climate of the times, however there is nothing yet that has clearly removed the teacher exception as a valid argument.  So for the time being pushing forward with the case could be justified, but the author of this article, at least, sees that window of opportunity rapidly closing.

75 Iowa L. Rev. 381 (1989-90)

     In this article the author explores the issues of academic copyright and looks specifically at the rights of high school teachers.  Specifically in section V the article outlines several recent cases and how they impact the idea of a ‘teacher exception’ and also goes into a good amount of detail about the reasoning behind the courts' decisions.  The author also discuss a few solutions to this issue.  Arguing that neither the school nor the teacher solely owning the copyright presents a great solution.  If the school owns the copyright then they have removed a large incentive for teachers to produce, and if the teachers have sole possession of copyright they could severely limit the academic environment, if they decided to be very strict and not allow their works to be used and shared among their peers.  The example given was a teacher develops an exam; if the exam is particularly well designed it is in the best interest of the students and the school to make this available to all the students in the district.  If the teacher refuses to allow the distribution then they are impeding progress; the opposite of what copyright is intended for.

     As a solution for this the article explores several routes, sharing copyright between the school and the teacher seems an obvious solution, but it begins to fail when one considers the relatively transient nature of teachers.  While not as drastic as university professors, some high school teachers will be at several schools before they find one that suits them.  If they are not allowed to use their own works once they transfer to a new school they will be in a difficult situation.  An alternative is using the right of teacher inception, which would have to be contractually agreed on.  This would allow the school the right to use a work created by the teacher for educational non-profit purposes, but the teacher would hold all other rights.  Allowing them to profit from their creativity.

     This seems like a good general solution.  However, it likely cannot be applied to Mauro v Allentown.  If there were no prior agreement to the right of teacher inception then it would not be valid.  So while the right of teacher inception is a viable and mutually beneficial solution, this situation is most likely going to have to rely on precedent to be decided.