Re: [digital-copyright] FW: Copyright question - lengthy

["Robert Thomas Hayes Link" <rl@xxxxxxxxxxxxxx>]

Kevin:

This is spot on and ready for incorporation in a brief, but misses the
meat of the matter: The speaker doesn't buy in.

rl

> From: Kevin Smith
> Sent: Tuesday, April 02, 2013 11:32 AM
> To: 'Barrera, Ms. Jennifer'; 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>
>


Peace,

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