Posting the Body of Knowledge Openly: What Copyright Covers When an Association Teaches and Shares

“Classification is a creative endeavor,” a federal appeals court wrote in 1997 about the code a dental association publishes for describing procedures, in American Dental Association v. Delta Dental. That ruling came from one circuit about one code, and it did not settle the question for other taxonomies. A certification director deciding whether to post the body of knowledge, the competency model and the review course slides where chapters and members can adapt them needs the rest of the picture: what copyright covers, what it never covers, and which tools fill the gaps.

This is general information, not legal advice, and a lawyer should review your own materials before any license goes on them.

The method was never the copyrighted part

17 U.S.C. 102(b) says copyright never extends to “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied.” The Copyright Office’s Circular 33 adds that the Office may register a written or illustrated description of a method that has enough original authorship, but protection reaches “only to the original expression in that work and not to the underlying idea, methods, or systems.”

The line between a method and its description goes back to the nineteenth century. In Baker v. Selden, the Supreme Court drew “a clear distinction between the book, as such, and the art which it is intended to illustrate,” said that exclusive rights in the art are “the province of letters-patent, not of copyright,” and held that blank account-books are not the subject of copyright. Where an art cannot be used without the methods and diagrams that illustrate it, the same opinion says those go to the public along with it, “for the purpose of practical application,” and not for “publication in other works explanatory of the art.”

Bikram’s Yoga College v. Evolation Yoga applied this to something taught in classes. The Ninth Circuit called a sequence of yoga poses “an idea, process, or system designed to improve health,” held that copyright protects only “the words and pictures used to describe the Sequence,” and said that because the sequence is an unprotectable idea it cannot qualify as a compilation either. A method of sorting, as a method, is the kind of thing Section 102(b) excludes, while the words, pictures and diagrams that explain a method are where protectable expression can sit.

Selection, arrangement and classifications in the courts

A taxonomy can still be a compilation. Section 101 defines one as material “selected, coordinated, or arranged” so that the result is original, and the Compendium counts “classifying, categorizing, ordering, or grouping” as one kind of that authorship. The protection is thin: section 103(b) says a compilation’s copyright reaches only the material its author contributed and implies no exclusive right in the preexisting material it draws on, and Circular 33 says a claim covers the arrangement of “that specific content,” not any content arranged the same way.

Courts of appeals have reached different results on classification and numbering schemes. The Seventh Circuit in ADA v. Delta Dental held that the code “is a taxonomy, which may be put to many uses,” and not a system, found even its short descriptions and numbers original, and vacated and remanded the judgment. That court also said section 102(b) lets Delta invite dentists to use the code on claim forms but does not let it copy the code or “make and distribute a derivative work based on the Code.” The Third Circuit, sitting en banc in Southco v. Kanebridge, held that the product part numbers before it “are not protected by copyright,” and in a footnote said its decision was consistent with American Dental. The Sixth Circuit in ATC Distribution Group agreed that classification schemes “can in principle” be original, then held that the catalog and part numbers at issue were not eligible, citing the merger doctrine and lack of originality, and it called the reasoning American Dental gave for protecting individual procedure numbers “rather opaque.”

What members and chapters may build from it

Section 101 defines a derivative work as one based on preexisting works, naming examples such as a translation, an abridgment and a condensation, along with any other form in which a work “may be recast, transformed, or adapted.” Section 106 gives the owner the exclusive right to prepare them. An open license, covered below, is one way an owner can grant permission for adaptations in advance. Teaching from material does not publish it by itself, since section 101 says a public performance or display “does not of itself constitute publication,” and Circular 1 says protection exists automatically once a work is fixed. We found no primary source saying that teaching material in class waives copyright, or that it preserves it.

Fair use gets decided work by work

Section 107 names teaching, “including multiple copies for classroom use,” as a purpose fair use can serve, and the four statutory factors decide each case. In Cambridge University Press v. Patton, about a university’s electronic course readings, the Eleventh Circuit reversed the lower court’s judgment because its fair use analysis was partly wrong, described fair use as requiring “a case-by-case analysis,” and said courts “must apply the fair use factors to each work at issue.” The Copyright Office’s Fair Use Index summarizes past decisions but says it “is not a substitute for legal advice.”

Open licenses, read from the legal code

Every Creative Commons 4.0 license, CC BY included, defines “Adapted Material” as material derived from the licensed work in which it is “translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission.” The choice among them is mostly a choice about adaptations. CC BY lets others “produce, reproduce, and Share Adapted Material.” CC BY-NC allows sharing adaptations “for NonCommercial purposes only,” and defines NonCommercial as “not primarily intended for or directed towards commercial advantage or monetary compensation.” CC BY-SA requires shared adaptations to carry a license with the same elements or a compatible one. CC BY-ND permits people to produce and reproduce adaptations “but not Share” them, and CC BY-NC-ND allows that much “for NonCommercial purposes only.”

Three clauses in each legal code, CC BY’s included, deserve a board’s attention. Each grant is an “irrevocable license.” Each says that if the licensor stops distributing the material, that “will not terminate this Public License.” And each states “Patent and trademark rights are not licensed under this Public License.”

Names and methods belong to other tools

Names are not copyrightable: the Compendium lists “The name of a business or organization” among words and short phrases with too little authorship. Names are trademark territory, and the USPTO warns that a trademark gives no rights “to the word or phrase in general, only to how that word or phrase is used with your specific goods or services.” Registration is optional but can determine the scope of rights, and 15 U.S.C. 1125(a) reaches uses in commerce likely to cause confusion “as to the affiliation, connection, or association.”

Processes fall on the patent side of the line, within limits. 35 U.S.C. 101 lets whoever invents or discovers any “new and useful process” obtain a patent, subject to the title’s conditions and requirements, but in Alice v. CLS Bank the Supreme Court repeated that abstract ideas are not patentable and held that “the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.” Trade secrets, the remaining tool, end for whatever is published, as our walkthrough on member data and the item bank explains.

A check to run before any license goes on

Before anything is posted, a certification director can run this pass with counsel:

1. List every item the association plans to release, from the competency model to the slide decks.
2. Tag each item as a method, written expression, a name, or material drawn from someone else.
3. Pull anything meant to stay confidential, since publishing it ends any trade-secret claim.
4. Choose a license, if any, for the expression, knowing the grant cannot be withdrawn and covers no trademark or patent rights.
5. Ask counsel how the classification cases bear on the association’s own materials. If the association is still deciding what its classification should contain, our article on association ontologies covers what one is.