Students file-sharing work on Facebook: Is it legal?

Summary:Could students find themselves breaching copyright rules by sharing their own work online?

On Wednesday, Facebook announced a service reminiscent of its roots -- Facebook Group for Schools. According to the service announcement by engineer Michael Novati, students are once again able to connect through groups reserved purely for different schools and campuses.

Apart from being able to connect with fellow students and exchange information concerning events, classes or to participate in discussions, users will also be able to share files of up to 25MB in size.

The service will eventually be rolled out globally, and Facebook users can sign up to be notified once the facility is launched in local areas. "We are also introducing file sharing for these groups, to make it even easier to share lecture notes, sports schedules or class assignments," Facebook says.

What Facebook doesn't say, however, is how introducing a file-sharing feature aimed at academic institutions may affect students' rights on the social networking site.

Facebook’s Terms of Use have not been amended to reflect the new facility -- which is a step beyond uploading photos and video, as it directly targets files that may not be the intellectual property of the uploader in a variety of formats. These policies have been in place since April 26, 2011, and these rules now apply to the new file-sharing facility:

"You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings," Facebook says.

There's a catch. It continues: "In addition..."

"For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License).

This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it."

According to these terms of use, users grant Facebook a transferable, royalty-free license to use any uploaded content in whatever manner it wishes. Therefore, as the uploader, you are awarding the social networking site rights to redistribute and use the material.

If the file is your own intellectual property, then it is your prerogative to do so. However, even if you have created material -- such as class notes -- it may not be the case that it is actually in your ownership, and so theoretically, you may be infringing copyright by sharing such files across the site.

What do students legally own?

Students, especially those studying at bachelor's level in college or university, generally assume that the work they produce is theirs. However, once you have signed up with a university, it is common for academic institutions to claim the rights on work you produce -- although this prerogative is not necessarily enforced.

Under UK law, as stated by the Intellectual Property Office (IPO), as a student is not an employee of the university, lecturers generally cannot claim joint ownership of work unless they have contributed equally to the material. However:

"Some universities and colleges may ask that the students assign their copyright over to the establishment when enrolling.

Alternatively, the establishment might extract a royalty free licence of any works created as a condition of enrolment. In the absence of any such contract, the copyright would remain with the creator."

This appears straightforward at first glance. However, if academic institutions in the UK use third-party companies that stipulate the transfer of intellectual property rights, students are not eligible to refuse based on copyright grounds.

If we relate this to sharing files on Facebook, then there are four possibilities to consider:

  1. If the university has claimed ownership of your work, then you are in breach of copyright by sharing your work on the site and therefore granting Facebook a license to reproduce the material.
  2. If the university has claimed a royalty-free license, then the work remains your intellectual property, and you can use the files as you wish.
  3. If the university has transferred your IP rights to a third-party, then again, you are in possible breach of copyright by sharing the content, as the file is not your intellectual property and so you do not necessarily retain the rights to share it without the explicit permission of the third party.
  4. If no such contracts are in place, then the IP rights remain with you; therefore you can use the material as you wish.

Under U.S. law, policies grant the creator exclusive reproduction rights as standard. However, whereas many UK universities take a common approach to claiming student's intellectual property -- although not necessarily enforcing it -- some American universities have staked their claim in a more forward manner:

California State University and the University of California are limiting what students can do with notes taken in class. At least one student is known to have been reported to judicial affairs for selling notes to a website.

UC Berkeley updated its policy on note-taking and materials, stating that as individual note sets are based on the 'intellectual effort' of lecturers, students are barred from: "broadly sharing their notes or other class materials. Furthermore [...] students may not reproduce, share, or distribute notes or other class materials made available by an instructor for commercial purposes or for compensation."

Under UC Berkeley's policies, if a student shared their notes through Facebook's new platform, they would be committing an offence. Even though the student has produced the notes, as they are based on the contribution of the university, it claims the right to control reproduction and sharing of the material.

Not only this, but any material that a university employee has provided is for individual use only, and its sharing is prohibited.

University lecturers often protest copies of their notes, PowerPoint presentations or lecture recordings being uploaded online -- and some universities enforce policies to ban this from taking place, at least within the public domain. Facebook's new service may result in academic institutions heavily policing such groups to make sure no files of this nature are exchanged -- which limits one of the reasons the facility has become available.

What happens when third parties become involved?

Depending on individual university and college policy, it is not only a student's notes that come under scrutiny. In some cases, third-party companies become the owners of a student's intellectual property. But what would happen if two or more of these businesses laid claim to academic material posted online?

An example of a third-party that claims file copyright is Turnitin, a plagiarism-detection web service developed by iParadigms LLC. As part of their business model, Turnitin makes a profit by processing student work, archiving it and selling services based on its plagiarism-detection database.

Once a piece of work is submitted for checking, the material's copyright passes from student to university, and then becomes the property of the company.

In 2008, several student complaints resulted in the charge of copyright violation, based on Title 17 in U.S. copyright law which awards creators exclusive reproduction rights.

However, the students did not win their case. The judge said that:

"While iParadigms makes a profit in providing this service to education institutions its use of student works… iParadigms provides a substantial public benefit through the network of educational institutions using Turnitin.

It is clear that iParadigms’ use of the Plaintiff’s works has caused no harm to the market value of these works."

In short, even though Title 17 awards intellectual copyright to the original creator "in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device", the Turnitin database was considered 'fair use' due to its function as a private checker rather than a public service, in comparison to a search engine such as Google.

In terms of Facebook, the scenario differs. Although the market value of such material may not be damaged by Turnitin's use, the exchange of these files across social networking sites may result in clashes between original creators and those that claim intellectual ownership due to either university attendance or its submission into such software.

If a third-party, or university for that matter, already lay claim to material uploaded by a student, then is Facebook opening itself for liability, or will the student uploaders have to deal with the consequences?

What do students and universities need to be aware of?

If students plan to utilize this service, then schools and universities have an obligation to inform them of any material that is claimed by copyright other than their own. If the university has set up a copyright-transferring contract with the student, then this must be reiterated before such networks are created, in order to avoid future disputes.

If the student retains the intellectual property rights to their work -- more commonly the case when a student is undertaking a masters or PhD -- then it is their right to share that material as they wish.

However, as in the case of UC Berkeley, just because you have individually written a set of notes from a lecture does not mean that you own the right to that work. If Facebook Groups for Schools is successful, then it may be the case that academic institutions will consider changing their policies to reflect the potential public sharing of such material.

ZDNet's Zack Whittaker contributed to this post.

Image credit: Facebook.

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About

Charlie Osborne, a medical anthropologist who studied at the University of Kent, UK, is a journalist, freelance photographer and former teacher. She has spent years travelling and working across Europe and the Middle East as a teacher, and has been involved in the running of businesses ranging from media and events to B2B sales. Charli... Full Bio

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