Who’s Zooming Who? Zoom Lectures and Copyright Ownership

Our collective transition to frequent Zoom users raises substantial legal questions that have not been previously (or properly) discussed. These are questions that deserve serious answers and have far-reaching repercussions. Just who owns the copyright to an academic or other type of lecture delivered through Zoom? Moreover, what is considered to be acceptable use or “fair use” by the students or participants privy to the lecture?

Israeli Perspective (By Ariel Dubinsky)

These two questions have become even more acute in light of the fact that the vast majority of the academic lessons and lectures delivered through Zoom can be recorded by the academic institution or by those participating in the lecture. As if this is not enough, many academic institutions have been requiring faculty to record their lectures. These recordings, as has become especially apparent over the course of the past year, often find their way “by mistake,” and without permission of the lecturers, into other courses or online platforms as well.

This issue was at the center of a legal dispute that I handled recently as an Israeli intellectual property attorney who specializes in copyright law, in which a lecturer claimed that his academic institution had improperly copied and distributed course content that he had uploaded to his course teaching platform solely for use by his students.

Under the Israeli Copyright Law,¹ a lecture is considered to be a literary work protected by copyright. According to the basic rule established by the law, the right to the work created is owned by the creator, unless otherwise agreed upon explicitly or implicitly. Therefore, the holder of the copyright to the lecture is the lecturer, and not the academic institution or any other entity that hired the lecturer’s services for that purpose, as long as it was not otherwise agreed to between the parties.

However, in many cases, academic institutions seek to protect themselves and establish beforehand, mostly within the framework of the employment agreement, that the copyrights to the lectures belong to them. In this case, a lecturer who wishes to protect his or her lecture and prevent its distribution in public must ensure that there is no provision in the agreement with the academic institution that may be construed as waiving the lecturer’s copyrights, or at least should limit the distribution and use of the content the lecturer created.

At the same time, it is important to remember that the lecturer has what the law defines as a “moral right,” which is a personal legal right that is nontransferable and derives from the special connection the creator has with his or her creation. This right stipulates, among other things, that even if the lecturer does not hold the copyright to his or her lecture, the lecturer has the right to have his or her name mentioned in any use of the lecture created, as well as a right to the “integrity of the creation,” which means that the lecture cannot be altered, distorted, or have any action done to it which may impact the lecturer’s honor or reputation.² The Copyright Law also states that the copyright to a creation is the exclusive right to do with the creation or an essential part of it actions such as copying, advertising, broadcasting, renting it out, making it available to the public, and more.³

It is easy to understand that the meaning of this is that as long as the lecturer remains the copyright owner of the lecture, the academic institution or its students are prohibited from making use of it without the lecturer’s permission, and this also includes the widespread distribution of the lecture recording in Zoom.

However, the truth is that the copyrights of a lecturer extend far beyond this as well. For example, about 20 years ago, in Ya’akov v. Inbar,⁴ the Tel-Aviv District Court established that a book published by a college lecturer’s student was entirely based on the lecturer’s lectures, thus infringing on his copyrights. The court ruled that the student was required to stop the distribution of the book, recall all the copies that were already distributed, and transfer to the lecturer all the proceeds generated by its distribution. The appeal submitted by the student to the Supreme Court was dismissed, providing much-needed support to lecturers’ copyrights in respect of their lectures.

In 2017, in Astrolog Publishers Ltd. v. Sharon Ron,⁵ the Supreme Court repeated these principles, and even clarified them. This occurred when it awarded tens of thousands of shekels in compensation to a lecturer whose former student published two books based on clip notes she made in his lectures. In its ruling, the Supreme Court expanded the protection on the lecturer’s creations and determined that even information papers, exercise sheets, and examples are original works, which give their creators copyrights as well as a moral right.

So, what can a student who is looking to record the lecture for his or her academic needs do? In this context, the Copyright Law stipulates that any use of a creation, and in this case a lecture, for the purpose of self-study or research is considered fair use. By that, the law perfectly balances the exclusive copyrights of the lecturer and the academic needs of the student.

As we can see, in matters pertaining to the copyrights of lectures delivered via Zoom, like in most areas in life, the best path to protection of a lecturer’s rights is, first and foremost, through proper advanced planning, and by obtaining professional legal advice.

U.S. Perspective (By Rebeccah Gan)

U.S. copyright law includes a robust work-for-hire doctrine that provides that works prepared in the scope of employment belong to the employer, not the employee. That said, classroom professors have long enjoyed a liberal cultural exemption to this statute: while they are paid to teach and do research, their lectures, syllabi, and even patentable work have been generally considered the property of the professor, not the university, unless there is an express assignment of rights.⁶

Similarly, the “fair use” provision of the U.S. Copyright Act allows copying by teachers or students of a small part of a work to illustrate a lesson.⁷

In the pre-COVID rise in online degree programs as a means of plumping up university budgets, universities frequently turned to faculty teams to develop scaled, online course materials for specific certificate or degree programs. Academic institutions explicitly laid claim to the faculty outputs via the work-for-hire doctrine.⁸

The coronavirus presents a “novel” challenge where faculty had to take traditional coursework and rejigger it for online instruction, often creating their own content for student use. Even when students are back in brick-and-mortar classrooms, it is expected that professors will continue creating online content to supplement the classroom experience or for those students who do not feel safe with in-person instruction. The American Association of University Professors (AAUP) has cautioned against potential university encroachment on faculty intellectual property rights during COVID-19. In a joint statement with the American Federation of Teachers outlining principles for academe’s response to the pandemic, the AAUP said that institutions “should not take this opportunity to appropriate intellectual property to which they would not otherwise have had access.”⁹ Teaching materials “moved online because of the one-time emergency created by COVID-19 are not the property of the institution for future use.”¹⁰ The AAUP cautioned its members to review their employment contracts and university policies prior to putting course materials on Zoom and other software platforms.¹¹

Given the big business of online education, one would expect U.S. academic institutions to explicitly try to lay claim to online course content as work-for-hire material post-pandemic.

Faculty will need to be vigilant in helping to shape university intellectual property policies as to course materials—and in reviewing their own employment contracts. Further, faculty should also explicitly notify their students that course materials are being provided subject to faculty copyright claims.

Endnotes

1. § 1.1, Copyright Law, 5768–2007, 2007 LSI 34 (Isr.).

2. Id.

3. Id. § 3.11.

4. CivC (DC TA) 2477/02 Ya’akov v. Inbar, Nevo Legal Database (Sept. 1, 2003) (Isr.).

5. CivA 8742/15 Astrolog Publishers Ltd. v. Sharon Ron (Shtibelman), Nevo Legal Database (Dec. 3, 2017) (Isr.).

6. 17 U.S.C. § 101 (defining work for hire); Bd. of Trs. of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011) (holding that rights to inventions supported by federally funded research are not automatically vested with the institutional recipient of those federal funds); Michele J. Le Moal-Gray, Distance Education and Intellectual Property: The Realities of Copyright Law and the Culture of Higher Education, 16 Touro L. Rev. 981 (2016).

7. Le Moal-Gray, supra note 6, at 1006; see 17 U.S.C. § 107; Bosch v. Ball-Kell, No. 03-1408, 2007 U.S. Dist. LEXIS 63785, at *2–3 (C.D. Ill. Aug. 29, 2007) (holding that the university’s use of the teaching materials constituted fair use); Jeff Galin, Bosch v Ball-Kell: Faculty May Have Lost Control over Their Teaching Materials, Conf. on Coll. Composition & Commc’n (Sept. 17, 2008), https://cccc.ncte.org/cccc/committees/ip/2007developments/boschvballkell.

8. See generally Le Moal-Gray, supra note 6, at 1019–23.

9. AFT and AAUP Principles for Higher Education Response to COVID-19, Am. Ass’n of Univ. Professors (Mar. 17, 2020), https://www.aaup.org/news/aft-and-aaup-principles-higher-education-response-covid-19.

10. Id.

11. Id.