Subject: [digital-copyright] RE: Copyright question - lengthy From: "Barrera, Ms. Jennifer" <BARRERA@xxxxxxxxxxxx> Date: Tue, 2 Apr 2013 11:39:28 -0500 |
Thank you Kevin! Yes, I agree that both sides are confused and I know that ACEF is wanting to honor their obligations to both the presenter and EDGAR. Perhaps they can drill-down to an agreeable portion and content to post for ACEF and the present to walk away happy. -Jennifer From: Kevin Smith [mailto:kevin.l.smith@xxxxxxxx] Sent: Tuesday, April 02, 2013 10:38 AM To: digital-copyright@xxxxxxxxxxxxxx Subject: [digital-copyright] FW: Copyright question - lengthy From: Kevin Smith Sent: Tuesday, April 02, 2013 11:32 AM To: 'Barrera, Ms. Jennifer'; digital-copyright@xxxxxxxxxxxxxx<mailto:digital-copyright@xxxxxxxxxxxxxx> Subject: RE: Copyright question - lengthy I think part of the problem here is miscommunication and inaccurate language. The attorney is correct that he owns a copyright in the material he creates, automatically and from the moment his original expression is fixed in tangible form. Since copyright has been entirely automatic since 1989, the ACEF language about the event being "copyrighted by ACEF" is inaccurate. ACEF could own the copyright from the moment of creation only if the work was "made for hire," which would require and explicit contract prior to the creation of the work. I doubt very much that such a contract exists, and the slides, at least, are probably something that the attorney created some time in the past. So there is no question of ACEF "retaining" the copyright; if they really want to own the copyright, they would need to get a signed transfer from the attorney, which he is clearly is not willing to do (and should not be, IMO). What EDGAR 80.34 requires is much less than a transfer of ownership - only a non-exclusive license in the work. Once it is understood that ACEF acknowledges that the attorney is the copyright holder and will continue to be so, and that ACEF needs only a non-exclusive license in his IP, the negotiations might be smoother. I note that the attorney objects to a film of his presentation being made, which is within his rights. He is legitimately concerned that a video of his presentation, combined with his slides, could be used to cut him out of future seminars in which he would still be the main (virtual) presenter, but without his consent or any compensation. Again, his ownership of the copyright would probably make this an infringement, but the confused language has left him unclear about his rights. The ownership issue should be cleared up, and then the scope of a non-exclusive license should be negotiated. If the license can be narrowed so that only people with a relevant relationship to ACEF can view the materials, and they are not released on the Web or used to create duplicate seminars, he might agree. But as the language has been presented to him, it is inaccurate and would cause me, as an attorney specializing in copyright who gives frequent presentations and hopes to be able to continue to do so, to object on the same basis. By the way, the fact that a contract is not required in this situation should not prevent one from being used. Without a contract the copyright will probably remain with the creator (the attorney) and ACEF will not even have a license, so it is their interest to negotiate. Kevin Kevin L. Smith, M.L.S., J.D. Director, Copyright and Scholarly Communication Duke University Libraries P.O. Box 90193 Durham, NC 27708 919-668-4451 Kevin.l.smith@xxxxxxxx<mailto:Kevin.l.smith@xxxxxxxx>
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