If you’re looking to make a quick buck off your class notes, you may soon be in for an unpleasant surprise if UC Berkeley’s recent policy change spreads to other UC campuses. Updated last month, the flagship campus’ policy on note-sharing prohibits students from selling their notes outside of the classroom, citing that instructors own the copyrights to the notes students take in their classes. The new changes not only infringe upon students’ rights — they also represent a step away from the “open” university movement that characterizes UC Berkeley.
Under the new policy, students can only share notes with other students who are enrolled in the same class at the same time. This means that students will be subject to disciplinary action for sharing old notes with students currently enrolled in that class. The policy most notably bans note-selling, dubbing the practice “unauthorized commercial activity.”
California State University campuses have also been cracking down on note-sharing policies. In fall 2010, the Cal State Office of General Counsel sent out a system-wide email warning students that if they are caught selling notes, they will be charged with academic dishonesty — with the possibility of expulsion. At Chico State, a student was sent to judicial affairs after she advertised a self-created study guide on Notehall.com, a note-sharing site owned by the textbook rental company Chegg. Both Cal State and UC administration have sent cease-and-desist letters to Notehall, causing the site to close off its services to students who attempt to register with Cal State or UC emails.
While professors own intellectual property rights over the notes, books, and articles they publish, they do not technically wield any legal control over what students write in class. When students take notes, they rephrase and filter the professor’s words to facilitate their own comprehension of lecture material. Students also tend to include their own observations and inferences in their notes. As long as the notes are not written verbatim, professors cannot cry copyright infringement.
The constitutionality of this new policy is tenuous at best. The United State Congress — and not the states — have exclusive control over copyright and patent laws. Assistant clinical professor of law at UC Berkeley Jason M. Schultz maintains that federal copyright laws and the First Amendment right of free speech prevail over the California Education Code. Schultz argues that it is considered freedom of speech if students want to share their notes. Furthermore, as defined by Title 17, Section 101 of the United States Code, a “derivative work” is not considered copyright infringement. Such works are defined as being based on pre-existing works, including those that are “recast, transformed or adapted.” UC Berkeley’s policy errs in that it treats students’ notes as direct transcriptions of professors’ words. Lecture notes — being a student’s own rendering of lecture material — should technically be looped into the category of “derivative works.”
The concept of students owning intellectual property over their notes has legal precedent. In the 1996 case University of Florida v. KPB, Inc., University of Florida lost a lawsuit against A-Plus Notes, a private note-selling service that hired students to take lecture notes for them. The U.S. Court of Appeals ultimately ruled that student-taken notes are not the intellectual property of professors. This ruling still stands today, meaning that UC Berkeley’s policy violates students’ rights and legal precedent.
Ironically, UC Berkeley hosted the 2008 Students for Free Culture convention, a grassroots conference focused on public access to knowledge, freedom of expression and civil liberties. Participants drafted the Wheeler Declaration, which touted having course materials as “open educational resources” and ensuring the “university network reflect the open nature of the internet” as two of five points that give Berkeley its “open” learning atmosphere. This new policy on note-sharing inherently runs countercurrent to this ideal. Unnecessary copyright protections stifle students’ ability to engage in the free exchange and expression of ideas, therefore making this a policy against sharing knowledge.
In the end, the policy will likely not have significant impact on students. Students will continue to do whatever they want with their notes, and use whichever resources they can get a hold of to prepare for exams. However, university officials should recognize that the new policy encroaches upon students’ rights, and even goes against the UC Copyright Policy’s own statement that “the University encourages free expression and exchange of ideas.” Prohibiting the sale of professor’s published notes is one matter, but doing so for students’ own handwritten notes is quite another.
Readers can contact Hilary Lee at [email protected]
