[digital-copyright] Copyright question - lengthy

["Barrera, Ms. Jennifer" <BARRERA@xxxxxxxxxxxx>]

Need some advice/help!!

I've been contacted by the project manager for the American Clearinghouse on
Educational Facilities (ACEF). She's having some questions regarding her legal
duties to a presenter and duties to a grant. All information created and/or
posted to the ACEF must be made available to the public without copyright
restriction and for the first time she's being questions by a presenter about
his own copyrights.

I have a rather lengthy conversation between the Project Manager for the
American Clearinghouse on Educational Facilities (ACEF) and a lawyer/author
that they are bringing in to do a presentation. What I need is clarity to the
issue and the legal duty of the ACEF. My understanding is that the ACEF wants
to retain copyright of the edited version of the presentation (roughly 30
minutes). The presenter feels that by doing so his copyrights are being
violated. Is there a miscommunication or do they just need to part ways due to
legal disagreements? Here goes:


>From ACEF:

We are providing an 8 hour training to FL schools. We have secured a presenter
and procurement requirements do not require a contract because compensation is
less than the bid threshold of $5000.  So as we plan and discuss how we
proceed with the presenter we were discussing how we would record his 8 hour
presentation and archive his slides to archive on our site.  As a federal
grantee we operate under this premise often and generally do so based on EDGAR
80.34 as seen below.



Sec. 80.34  Copyrights.



    The Federal awarding agency reserves a royalty-free, nonexclusive,

and irrevocable license to reproduce, publish or otherwise use, and to

authorize others to use, for Federal Government purposes:

    (a) The copyright in any work developed under a grant, subgrant, or

contract under a grant or subgrant; and

    (b) Any rights of copyright to which a grantee, subgrantee or a

contractor purchases ownership with grant support.



(Authority: 20 U.S.C. 3474; OMB Circular A-102)


We often work with presenters who are considered content experts and hold
copyright to texts or other items.  This one is an author of a book, creator
of a software program, and an attorney.  Even still I understand the author
wanting to protect his work to some degree so we generally handle that in this
manner.  Here are exerts from an email I sent to him:


EMAIL FROM ACEF

"Thank you for your response.  I do want you to know that I want to work with
you as much as possible to alleviate your concerns.  I believe perhaps a few
critical elements have been misunderstood, or perhaps I did not present them
clearly.  All ACEF trainings, publications, and learning events are
copyrighted by ACEF and ultimately the property of the USDOE.  So the content
of any session is generally archived, at least online, for future reference.
However, ACEF will always work with our presenters to protect your copyrighted
products, but do desire to archive it in some manner pleasing to us both.
I would advise that any content you wish to protect visually not be submitted
in your power point and perhaps only presented in handouts etc.  at the event.
Then we can agree to not distribute them further if that is your desire.  In
addition, while the recording may record the entire session, that would be way
too long to post online.  So we would probably select a maximum of 30 minutes
of content reflecting the high points and delete the rest.  You are welcome to
help shape the contents of that content as well."

REPLY BY PRESENTER:
"As an attorney, I do not quite understand the need to copyright material that
is already copyrighted just to conduct a seminar benefiting from an expert's
work. It would seem that the intent is to use DoE grant funds to further
knowledge of planning, including permitted use of copyrighted material, not
copyrighting it again.  Such control of the material seems to be preemptive
and excluding as to "spreading the word" as much as possible."

"I could certainly permit you to post material from my lecture on the WEB"

Question:  How does it work legally and practically for you to copyright my
material presented in the seminar, when it is extracted in many places from
material already copyrighted by me?

For example, my EMPAC program planning process will be presented to show how
to effectively plan for demographics and facilities.  But, examples and steps
are snapshots from my copyrighted software program.  My lecture also features
diagrams and exhibits from my copyrighted book "School District Master
Planning--A Practical Guide to Demographics & Facilities Planning."

Slides, for example, showing how to project enrollments for detailed planning
are taken from both my textbook and my software program.

What happens if I give another lecture later to a different group, and I hold
workshops all the time, using the same or similar material?  If you copyright
my material with my consent, does that not mean I have assigned my rights to
use my material repeatedly to your group?

As an attorney, I do not quite understand the need to copyright material that
is already copyrighted just to conduct a seminar benefiting from an expert's
work. It would seem that the intent is to use DoE grant funds to further
knowledge of planning, including permitted use of copyrighted material, not
copyrighting it again.  Such control of the material seems to be preemptive
and excluding as to "spreading the word" as much as possible.

I could certainly permit you to post material from my lecture on the WEB.
But, I would not appreciate anyone copying the material and selling it based
on a copyright of a copyright or conducting other seminars using it without
permission for their own gain.

In practicality what it can mean is that a presenter will not show his "best
stuff" for fear it will be copyrighted to his detriment.   My material forms a
large part of the basis for my income.  So, one presentation locking it in to
one group is not really a very good idea at first blush.

Is there something I am missing here?  Again, the questions are not intended
to be antagonistic at all.  It is just a novel approach to me, as I conduct
many workshops and have never been asked to permit the material to be
copyrighted on top of my copyright, which really amounts to an assignment of
my copyright.

Maybe you can help me focus on a way out of this difficulty so we can do this
right and focus on furthering planned change, not on property ownership.

To summarize the concerns:

1.  The fact that USDoE sponsors your work in some arrangement does not negate
my copyright of material presented in a public lecture, nor does any DoE or
State regulation of which I am aware act to override copyrights or require
them to be overridden.  Compensation is for one workshop.

2.  While my mission is to further understanding of what good school district
planning processes encompass, my work products are and remain protected
instruments of service that are repeatedly used and improved.  I have a very
large investment in time and costs in their development.

3.  So, I cannot agree to use of a camera recording of my workshop
presentation, as that is normally intended for further use of the workshop
without compensation.  If more workshops are desired, then I can provide them
for a fee.

4.  I cannot agree to assigning copyright for my material or to any party
recording them for future uses without compensation.  That material is the
main basis of my consulting practice.

5. I would agree to selective presentation of some slides from my material on
your WEB site, provided I approve the number and content.  The objective is
education, not copying my work without further compensation.

I am responding under the assumption that the purpose of this meeting is to
further understanding of school district master planning for all those
educators who choose to attend.  If your invitation is also about gathering
materials for copyrighting or for further distribution, that was not made
clear to me.

Again, I doubt that any real expert would agree to assigning rights to work,
implicitly or explicitly, that entailed enormous development costs and years
of his experience, without a compensation and limitations arrangement that
reflected its present and future value, which is not the case here.

So, kindly consider the practicalities of this situation.  Frankly, I have not
had this question arise before.  If you feel that my workshop presentation
must entail giving over, recording, or assigning my entire presentation to
anyone, kindly advise.



Jennifer Barrera
Assistant Director for User Services
Dick Smith Library
Box T-0450
Stephenville, TX 76402
254-968-9248