RAQs: Recently Asked Questions

Topic: Registering works with the copyright office - 05/06/2021
When is it advisable for an author/creator to register a work with the copyright office? I work ...
Posted: Thursday, May 6, 2021 Permalink

MEMBER QUESTION

When is it advisable for an author/creator to register a work with the copyright office?

I work in higher education. Students will sometimes ask for information on copyright protection for a thesis (written, not performance). Sometimes faculty will ask about protecting various devices of education such as a syllabus, exam or spreadsheet.

The Copyright Office used to promote the idea that works that are fixed do not necessarily need to be registered. When is registration a good idea? What does registration do for copyright holders?
 

WNYLRC ATTORNEY'S RESPONSE

There are some really good, separate answers to this question.  I'll present them in the order I think would be useful to students and academics.

Answer #1: Clarity of ownership

Students own the academic work they author.  Even if they are completing an assignment with requirements tightly prescribed by a syllabus (such as: "Write an essay about four different civil rights cases heard in 2019; no more than 2,000 words; cite no less than four peer-reviewed law journal articles commenting on each case; identify a shared theme of the cases; conclude with a short paragraph as to which case is your favorite and why."[1]), the end result--if the student is the  only writer--is the student's.

Registration is not necessary to claim a copyright any more, but it remains strong evidence as to the ownership of a work.[2]  A student who authors something of importance to that student (such as a thesis, or a student film) should consider registration so they can readily assert that ownership.

Answer #2: Publicly establishing co-authorship

Not only do students own the copyright to their academic work, but students who are co-authors own that copyright together. 

This is true even if co-authors take on different tasks (such as: "Student 1 summarizes two cases, Student 2 summarizes two cases; each summary is 250 words; each cites to eight articles; they flip a coin to see whose paragraph on their favorite civil rights case is in the final version, and they proofread, edit, and finalize the document together."[3]), the end result--if they combine their work into a single whole--is the students'.

This is also true of students collaborating with a faculty member or a faculty research partner--even if one author/researcher has more experience than the other.  So, while most academic collaborations might not warrant the time and expense of registration, if the end result could be valuable (either financially, or as an academic credit in a published journal or on a CV) the co-authorship should be established in a written collaboration agreement, and confirmed with a joint registration.

Answer #3: Being able to quickly fight infringement

Before I dive into this one, a bit of commentary on copyright and academia:

The world of copyright--and of students taking credit for their artistic and academic expression--is changing: more and more authors are authorizing audiences to use their work through mechanisms such as an “open license” through the Creative Commons.

As a person who (still) believes that "information [still] wants to be free," I see this trend as a positive, but I do have one concern with this generous/generative approach: sometimes, the use of the work might be...wrong. 

What do I mean by this?  While an author might assume that anyone wishing to use their work would do so for a reason that aligns with that author's own perspective, values, and vision, that is simply not always the case. Sometimes, a person or organization could make a use of a work that is simply unacceptable to the author.[4]

Authors who think they could be impacted by this type of concern should consider using a copyright notice together with an easy way for would-be users to request permission, rather than an “open license.”  With this approach, an author/owner can still enable use, but will have a bit more control over what their work is associated with.[5]

The concern over work being used in a way that is objectionable to the author (and isn’t a fair use), is one of the biggest reasons to register a copyright: if a writer/photographer/muralist/etc. really wants to stop someone from infringing their work, that work's copyright must be registered, because that is the only way an author can sue for infringement and obtain an injunction.[6]

 Answer #4: Money

My final answer is 100% financial.

As the member's question states, authors no longer have to make a registration to claim a copyright. So what is the motivation to register?  In addition to answers "1" through "3," above, if a student/copyright owner, finding that their work has been infringed, wants to be able to sue for "statutory"[7] damages, actual damages,[8] and attorney's fees, they need to have completed the registration of a published work prior to the infringement. 

Among many other things, these “statutory” damages, and the ability to recoup the costs of enforcement, are a motivation for a copyright attorney to take your infringement case without needing an up-front deposit.  So, it's another tool in the toolbox of copyright enforcement.

Final question

I believe answers "1" through "4" take care of the member's last two questions.  But what about the first one:

When is it advisable for an author/creator to register a work with the copyright office?

I don't usually play this card on "Ask the Lawyer," but I have to say, this is an almost unanswerable question.

For some people, the mere prestige of being able to look up their registrations at copyright.gov is important.

For others, the certainty of knowing they've done everything they can to protect their work from mis-use is critical.

And for still others--especially those planning to support themselves and their families through their intellectual property--registration is an important habit to ensure they are protecting their valuable property.   After all, copyrights are property rights left to a person's heirs after they die, just like money in the bank and real estate.

When I advise a client to register a Copyright, it is because they have flagged that work as important for some reason. For some, they might have already self-published it, and want to be able to control how their work is used. For others, it is because they plan to shop it or sell it, and they want to have optimal protection before they share it. And for others, it is because they suspect that the work has that "special something," and people in the future may copy it.

Any of these, and more, are valid reasons. For students, and those working in academia, the important thing is to be aware of your full body of work, to have clarity about its ownership, and --when you know you've created and own something important to you—to protect it.

Thank you for making sure today's students are thinking about their work and their intellectual property.

 



[1] Assignments like this are why students have either loved or hated my classes, AND why I never have to rely on a utility like "Turnitin" to detect cheating.  You just can't fake selecting a favorite civil rights case.

[2] The basics of registration, including the basic elements it asserts, are in "Circular 2" found at https://copyright.gov/circs/circ02.pdf.

[3] Back when I was in law school this type of group work drove me crazy.  I am a good team player professionally, but group academic work brought out the lone wolf in me.

[4] For example, a person who takes photos at a "Black Lives Matter" march, hoping the images will boost support for criminal justice reform, finds that their photos are being used by a political candidate who portrays the marchers as "the enemy."

[5] To carry forward my example, license for the photos could say "© NAME, 2020, to be used only with attribution and only after written permission.  For permission, please write to ADDRESS.  The author generally gives permission to those whose use will align with the author's values and agree to attribution."

[6] An injunction is a court order to "cease and desist" infringing use of the work.

[7] "Statutory damages" are those big numbers you used to see at the beginning of movies on video and DVD.  And although both mediums are quickly becoming a relic of the past, damages with fixed amounts set by law are not.

[8] The "actual" costs and damages created by the infringement.

Tags: Academic Libraries, Copyright, Dissertations and Theses, Students, Intellectual Property, Student Works

Topic: Parent access to student Google accounts - 1/8/2021
As we transformed to fully/largely remote learning and pulled all student work and interactions on...
Posted: Friday, January 8, 2021 Permalink

MEMBER QUESTION

As we transformed to fully/largely remote learning and pulled all student work and interactions onto Google platforms, a question has arisen about the intersection between student privacy and parent access to student accounts. Currently, if a parent is given their child's google log in information, they will have access to far more than ever in the past. Because of authentication agreements, library records, database access, all stored documents, any Google classroom the student is enrolled in, classlists for those classrooms, comments from teachers, peer work on group projects...this is likely not an exhaustive list!


My 2 biggest areas of concern are 1) access to library check outs and 2) ability to see that a student is enrolled in a classroom for the Gay Straight Alliance (GSA) at the school and the entire class list of other members.


I am told by my administrators that FERPA allows for parents to be given student log in information. The RAQ, post "Topic: Patron Confidentiality in School Libraries - 5/6/2019" gave very good information but both the online aspect and the myriad of elements that are exposed with that single password compel me to seek more details. Thank you!

WNYLRC ATTORNEY'S RESPONSE

Thank you for this careful and thoughtful question.  As we rush to migrate education to online, the small details can get overlooked.  As the member writes, information that used to be safeguarded in physical files or with separate passwords is increasingly accessible via a "one-stop shop."

Depending on the type of information involved, any number of ethical, privacy, and legal concerns can be impacted.

In this question, the member focuses on two types of information: library records, and FERPA-protected "education records."

For library records, there is an overlap of legal concerns—an overlap that was thoroughly discussed in the 5/6/19 answer the member cites.  In that reply, we established that depending on how a school/school library is set up, parent/guardian access to this information might be allowed--but it’s a question that should never be left to chance (it should always be answered by a school’s FERPA and library privileges policies).

To that answer, and considering the spirit of the times, I'd simply add: any librarian out there, operating in elementary and secondary education, should be lauded when they raise privacy concerns.  Librarians should work with IT departments and procurement professionals to ensure data management and automation enable the separately governed access to a student's library records.  Even when access is legally allowed by a system, it is still good to emphasize the privacy of library records.

Here are several examples of how this can be done:

  • Including privacy considerations in “Requests for Proposals” (RFP’s) and quotes for automation and other data management software that will hold library or student records;
  • Training both library and IT staff to keep the division of different types of records with different access parameters at top of mind (“Remember, library records aren’t just protected by FERPA and ED 2-d”);
  • Ensuring that release and parental permission forms distinguish between and properly govern access to different types of records;
  • When making quick changes based on pandemic exigencies,[1] ensuring at least one person is tasked with assessing if the implementation conforms with applicable institutional ethics, policies, and privacy regulations.
  • Using deliberate awareness tools, such as a pop-up window that appears prior to enabling access to library files, saying "Student library records are confidential under state law.  Only properly authorized parties should view these records," is a good way to distinguish access to library information from other education records.[2]

For any educator reading this and thinking “Uh-oh,” if the horse is out of the barn, it is never too late to adopt some retroactive corrections.  When parental access is as plenary as the member describes, if there is a confirmed issue (such as access to one student’s enrollment records leading to access to all students’ enrollment records[3]) working with IT to address the specific utility hosting that information, and how it can be further locked down, is the only solution.

There will be times when addressing an issue like the ones raised by the member is simply not within the authority of the person concerned.  A concerned librarian or educator might even find themselves rebuffed when they try to ring the alarm! When that happens, it is time to kick it upstairs.  Each school should have a FERPA officer, and at least one senior administrator whose role is associated with enforcing a code of ethics or policies on privacy.  Concerns of this type are all appropriate to direct to such an administrator.

No one engineers a FERPA or privacy violation on purpose, but unwitting violations can happen when the learning environment has to change fast.  Being alert and ready to identify and correct concerns as soon as they emerge is critical.  Thanks for a solid question that shows how it's done.

 

 



[1] “Pandemic Exigencies” would be a good name for a heavy metal band.

[2] As discussed in that 5/6/19 answer, who "properly authorized parties" are can vary from school to school.

[3] This is indeed a possible violation.  FERPA §99.12 states "(a) If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student."

Tags: COVID-19, Privacy, School Libraries, Google, Students

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