Mendes, Philip --- "On-line Delivery of Education: Copyright Issues in Universities" [2000] JlLawInfoSci 14; (2000-2001) 11(2) Journal of Law, Information and Science 196
[*] Biographical note: Philip Mendes is a lawyer in Brisbane, Australia. He specialises in technology law and technology transactions. His clients include the technology transfer offices and companies of five Australian universities. Email: p.mendes@jeeves.com.au
[1] Australian Vice-Chancellor’s Committee “University Research: Some Issues” (1996) p 1.
[2] Australian Copyright Council “Teachers & Academics as Creators: Current Issues” (November 1996), Bulletin 91 at para 3.2.
[3] L Wiseman “Copyright in Universities” (1999) Occasional Paper Series 99E, Higher Education Division, Department of Education, Training and Youth Affairs, para 3.1.
[4] Australian Vice-Chancellors’ Committee “Exploiting Information Technology in Higher Education: An Issues Paper” (1996).
[5] Australian Vice-Chancellors’ Committee “Exploiting Information Technology in Higher Education: An Issues Paper” (1996) at para 115.
[6] Australian Vice-Chancellors’ Committee “Exploiting Information Technology in Higher Education: An Issues Paper” (1996) at para 141.
[7] Professor Gus Guthrie, Vice Chancellor of the University of Technology, Sydney, in the editorial “Virtual Unis” Sydney Morning Herald 18 September 1995, p 12, quoted in Australian Copyright Council “Teachers & Academics as Creators: Current Issues” (November 1996), Bulletin 91 at para 3.6.
[8] L Wiseman “Trade in Education: The role of Copyright” (1998) 16 Prometheus 331.
[9] Section 35(6) Copyright Act 1968 (Cth); s.19(3) Designs Act 1906 (Cth); s.3(1)(c) Plant Breeders Rights Act 1994 (Cth); s.16(2) Circuit Layouts Act 1989 (Cth).
[10] Sterling Engineering Co Ltd v. Patchet [1955] AC 534.
[11] S Ricketson “The Law of Intellectual Property” The Law Book Company Limited, 1984, para 43.21f.
[12] S Ricketson “The Law of Intellectual Property” The Law Book Company Limited, 1984, para 32.11.
[13] A Monotti “Allocating the Rights in Intellectual Property in Australian Universities: An Overview of Current Practices” (1999) 27 FLR * at * *[1].
[14] “Professors, it is suspected, would uniformly react with indignation that a university might assert copyright ownership over their creations” W A Rome “Scholarly Writings in the University Setting: Changes in the Works and on the Books” (1985) 35 Copyright Law Symposium 41 at f 76, quoted in Australian Copyright Council “Teachers & Academics as Creators: Current Issues” (November 1996), Bulletin 91 at para 6.
[15] W R Cornish “Rights in University Innovations: The Herschel Smith Lecture for 1991” [1992] 1 EIPR 13 at 15.
[16] A Monotti “Who Owns My research and Teaching Materials – My University or Me ? [1997] SydLawRw 24; (1997) 19 Syd LR 425 at 426.
[17] J Wells “University Staff & Moral Rights” (1994) Copyright Reporter Vol 12 No 1.
[18] In Williams v. Weisser 78 Cal. Rptr 542, 163 USPQ (BNA) 42 (Cal. Ct. App., 2d Dist 1969) at p.546 the court remarked that “professors are a peripatetic lot, moving from campus to campus” as one justification for the rule that academic staff own copyright in their work, and not their university employer, quoted in M Meyer “To Promote the Progress of Science and Useful Arts: The Protection of and Rights in Scientific Research” (1998) 39 IDEA: J.L. & Tech 1 at p 8.
[19] Australian Vice Chancellor’s Committee “Ownership of Intellectual Property in Universities – A Discussion Paper” (1993), paragraph 3.2.
[20] Herbert Morris Ltd v. Saxelby [1916] AC 688; Bacchus Marsh Concentrated Milk Co Ltd v. Joseph Nathan & Co Lts [1919] HCA 18; (1919) 26 CLR 410; Ansell Rubber Co Pty Limited v. Allied Rubber Industries Pty Limited [1967] VicRp 7; [1967] VR 37
[21] A Monotti “Ownership of Copyright in Traditional Literary Works within Universities” (1994) 22 FLR 340 at 354.
[23] [1952] 1 TLR 101 at 104-105.
[24] This is in itself a contentious issue, since publishers of scholarly journals insist upon assignment of all copyright rights, including the right to publish in multimedia format, or otherwise electronically, when only publication in book form has traditionally been the case. See L N Gasaway “Scholarly Publication and Copyright in Networked Electronic Publishing” (1995) Library Trends Spring 1995, 679 at 683f.
[25] Section 31(1)(a)(vi) Copyright Act 1968.
[26] A Monotti “Ownership of Copyright in Traditional Literary Works within Universities” (1994) 22 FLR 340 at 341.
[27] J McCalman “Melbourne university and Copyright” (1996) 12:1 Liberty 55.
[28] Australian Vice Chancellor’s Committee “Ownership of Intellectual Property in Universities – A Discussion Paper” (1993); and Australian Vice Chancellor’s Committee “Ownership of Intellectual Property in Universities – A Discussion Paper” (1995).
[29] A Monotti “Allocating the Rights in Intellectual Property in Australian Universities: An Overview of Current Practices” (1999) 27 FLR * at * *[2].
[30] Les Affreteurs Reunis Societe Anonyme v. Walford [1919] AC 801.
[31] Australian Vice Chancellor’s Committee “Ownership of Intellectual Property in Universities – A Discussion Paper” (1993), paragraph 3.2.
[32] Australian Vice Chancellor’s Committee “Ownership of Intellectual Property in Universities – A Discussion Paper” (1995), p.23.
[34] [1952] 1 TLR 101 at 106-107.
[36] [1991] FSR 14 at 26.
[37] [1991] FSR 14 at 27.
[38] A Monotti “Ownership of Copyright in Traditional Literary Works within Universities” (1994) 22 FLR 340 at 347f.
[39] Section 35(6), Copyright Act 1968.
[40] A Monotti “Ownership of Copyright in Traditional Literary Works within Universities” (1994) 22 FLR 340 at 347-348.
[41] A Monotti “Ownership of Copyright in Traditional Literary Works within Universities” (1994) 22 FLR 340 at 349.
[43] [1952] 1 TLR 101 at 111.
[44] L N Gasaway “Scholarly Publication and Copyright in Networked Electronic Publishing” (1995) Library Trends Spring 1995, 679 at 684.
[45] See section 101 of the United States Code, Title 17 – Copyrights 1976 and the definition of “work for hire”.
[46] Section 11(2) Copyright, Designs and Patents Act 1988 (UK).
[47] D L Burk “Ownership of Electronic Course Materials in Higher Education” (1997) Cause/Effect Fall 1997, 13 at p 15.
[48] M Meyer “To Promote the Progress of Science and Useful Arts: The Protection of and Rights in Scientific Research” (1998) 39 IDEA: J.L. & Tech 1 at p 6f.
[49] Weinstein v. University of Illinois [1987] USCA7 195; 811 F.2d 1091, 1094 (7th Cir. 1987).
[50] R C Dreyfys “The Creative Employee and the Copyright Act of 1976” (1987) 54 U. Chi. L. Rev. 590 at 595.
[51] Williams v. Weisser 78 Cal. Rptr 542, (Cal. Ct. App., 2d Dist 1969).
[52] T F Simon “Faculty Writings: Are They ‘Works made for Hire’ under the 1976 Copyright Act? (1982-83) 9 IDEA: J.L. & Tech 485 at 488.
[53] Hays v. Sony Corp. of America, [1988] USCA7 409; 847 F. 2d 412, (7th Cir. 1988) at 416.
[54] Although the matter was well settled in case law based on the US Copyright Act of 1909, there being a dearth of case law based on the US Copyright Act of 1976, the matter is not without controversy: M Meyer “To Promote the Progress of Science and Useful Arts: The Protection of and Rights in Scientific Research” (1998) 39 IDEA: J.L. & Tech 1.
[55] Australian Vice-Chancellors’ Committee “Exploiting Information Technology in Higher Education: An Issues Paper” (1996) para 10.
[56] D L Burk “Ownership of Electronic Course Materials in Higher Education” (1997) Cause/Effect Fall 1997, 13 at p 15.
[57] A Monotti “Ownership of Copyright in Traditional Literary Works within Universities” (1994) 22 FLR 340 at 342.
[58] Australian Vice Chancellor’s Committee “Ownership of Intellectual Property in Universities – A Discussion Paper” (1993), paragraph 3.1.
[59] A Monotti “Who Owns My research and Teaching Materials – My University or Me ? [1997] SydLawRw 24; (1997) 19 Syd LR 425 at 426.
[60] Williams v. Weisser 78 Cal. Rptr 542, 163 USPQ (BNA) 42 (Cal. Ct. App., 2d Dist 1969) at p.546.
[61] W R Cornish “Rights in University Innovations: The Herschel Smith Lecture for 1991” [1992] 1 EIPR 13 at 15.
[62] Section 31(1)(a)(iii) Copyright Act 1968, subject to section 45 of the Copyright Act which places limitations upon the exclusive right to perform.
[63] Section 31(1)(a)(i) Copyright Act 1968.
[64] A Monotti “Ownership of Copyright in Traditional Literary Works within Universities” (1994) 22 FLR 340 at 367.
[65] Australian Vice-Chancellors’ Committee “Ownership of Intellectual Property in Universities – A Discussion Paper” (1993) at p8.
[66] A Monotti “Ownership of Copyright in Traditional Literary Works within Universities” (1994) 22 FLR 340 at 374.
[67] Section 43 Fair Trading Act 1987 (NSW); s.8 Fair Trading Act 1999 (Vic); s.39 Fair Trading Act 1989 (Qld); s.57 Fair Trading Act 1987 (SA); s.15 Fair Trading Act 1990 (Tas); s.11 Fair Trading Act 1987 (WA); s.13 Fair Trading Act 1992 (ACT); s.43 Consumer Affairs and Fair Trading Act (NT).
[68] Patrick v. Steel Mains Pty Limited (1987) 77 ALR 133.
[69] Sections 79, 82, and 87(1A) Trade Practices Act 1974.