Faculty develop intellectual property needed for online courses while employed by an academic institution. That institution has a claim on the copyright because the instructional materials developed by the faculty members could be seen as “works for hire.” On the other hand, both tradition and case law have seen faculty as the copyright possessors of any instructional materials they develop. The interests of both the administration and faculty may be best served with a negotiated agreement that gives the institution ownership rights while allowing use and distribution rights to remain with the authoring faculty.
Introduction
The controversy over who owns academic coursework materials has intensified with the proliferation of online courses. Many faculty believe the intellectual property they produce for coursework belongs entirely to them. Harvard Law School’s Arthur Miller demonstrated the profit that can be made from freelance academic work when he produced a video series on (ironically) civil procedure and intellectual property for a course offered at a different online institution. Miller saw this as no different from book publishing deals he had been negotiating for many years (Alger, 2000). At the same time, college and university administrations believe the intellectual property rights of course materials developed by the faculty they employ belong to them. Both faculty and administration believe they have strong arguments in their favor. Intellectual property ownership is especially important in the context of computer-based distance education. This article discusses the merits of the arguments faculty and administration for retaining online intellectual property rights and proposes a compromise that can serve the interests of both the administration and the faculty.
Ownership and Control in the Distance Learning Age
Distance education is growing in importance as well as in numbers in the United States. In the 2000-01 academic year, the National Center for Education Statistics (NCES) reported that 2,320 two- and 4-year degree-granting institutions in the United States, or 56%, offered distance education courses, an increase of 12% over the 1997-1998 academic year (Tabs, 2003). While distance education has the altruistic benefit of taking “the tools of success to those who have the least access to resources” (Nemire, 2007, p. 27), there is a more pecuniary reason for the recent growth in distance learning courses.
After the passage of the Bayh-Dole Act (Public Law 96-517) in 1980, universities and other small entities (included “as an after-thought” (Nelsen, 1998, ¶3)) were able to own the patent rights to inventions they discovered while conducting research sponsored with federal funds. Rhoades (2001) noted that this provision was intended to help spur the growth of small technology businesses. While universities were required by law to use any profits derived from royalties for further research, it may also have begun the slow turn of academic institutions from nonprofit organizations toward the “commodification” (“Academic Commodities,” ¶ 2) of academic products. At the same time, the rise of personal computers and the Internet have produced a resurgence of distance education and have allowed faculty to improve both their instructional methods and products (Rhodes, 2001).
While opportunities for revenue enhancement from technology appeared, Rhoades (2001) also highlighted revenue pressures from decreasing state support for public colleges and universities. The Association of American Universities (AAU) (1999) indeed hoped distance learning over the Internet would stimulate “a new form of ‘academic free agency’ ” that would allow universities to reach “large numbers of students and other audiences” (“Boundary Problems and Likely Contested Zones Involving Intellectual Property in the New Digital Media,” ¶16). Whether it is faculty selling their instructional talents and intellectual property to private companies or universities acquiring a more business-like model toward the fruits of academic labor, contention for the intellectual property rights of faculty is rising rapidly (Rhoades, 2001).
Copyright Law and Intellectual Property Rights
The concept of intellectual property is intimately related to copyright. American Association of University Professors (n.d.) defined copyright as “that bundle of rights that protect original works of authorship fixed 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.” Included in “works of authorship” were the outputs of virtually any intellectual endeavor as preserved in an open-ended list of media formats (“What is Intellectual Property?” ¶ 2). The intent was to give faculty the right to control what they have produced. The United States Copyright Law is intended to provide that control to U.S. citizens; however, its relationship to faculty-produced work has been murky. The 1909 Copyright Law, for example, gave copyright privileges to employers for works made for hire, although it made no attempt to define either works for hire or employer. The courts filled in the definitions through case law, and the consensus was that an employer was one who exercised control of the production of the finished work, no matter the actual relationship between producer and supervisor (Bunker, 2001).
Little case law was developed regarding the relationship between faculty and the products of their teaching. Bunker (2001) related one significant case that was tried before the California Supreme Court regarding a professor Williams, who took notes and course materials he had developed at UCLA with him to use at his next post. A publisher published Williams’ notes without his permission and Williams sued. The publisher defended itself by asserting that Williams’ notes were works for hire so that UCLA held the rights to the notes, giving Williams no basis for his suit. The court, however, found for Williams as owner of the copyright based on two arguments: First, that if UCLA owned the copyright, it could prevent Williams from using the notes he created at his next post and, by extension, would similarly block all faculty from using their instructional materials at any but the institutions at which they created them; and second, that UCLA had exerted little supervisory control over Williams. The court also noted how little value the notes would be to UCLA (Bunker, 2001). This implicit ownership faculty had of their course materials became the teacher exception to works for hire and effectively barred educational institutions from owning the intellectual products of their faculties (Quigley, 2001, “Opposing Points of View,” ¶2).
With the passage of the Copyright Act of 1976, the works for hire provision remained, expressly provided in section 101 Definitions, where
A “work made for hire” is:
a work prepared by an employee within the scope of his or her employment; or
a work specially ordered or commissioned for use as a contribution to a collective work (U.S. Copyright Office, 2003, p. 7).
Whether the teacher exception transferred to the new act is unclear and remains untested. Bunker (2001) noted that the Supreme Court attempted to provide a definitive ruling on works for hire in Community for Creative Non-Violence v. Reid. In a unanimous decision, the Supreme Court ruled that the assignment of copyright should be based on many factors, namely:
the skill required; the source of the instrumentalities and tools; location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. (Community for Creative Non-Violence v. Reid, 1989)
The problem with this ruling is that the court explicitly noted that no single factor should have precedence over any other in making the determination of who owns the copyright. Thus, applying this ruling to faculty, they are provided salary and benefits and their taxes are paid through the college or university; on the other hand, the extent of the institution’s control over when and how long faculty work is minimal. While there would be little doubt that institutions would retain the copyright of institutional documents such as brochures and prospectuses, the decision concerning teaching materials is not so clear cut (Farrington, 2001). Faculty regularly relinquish copyright to the publishing houses that publish their articles, which universities allow (Nemire, 2007), thus appearing to soften the claims of universities on faculty-produced work. At the same time, patents and software are contested by both faculty and institutions (Rhoades, 2001). A look at the arguments made by higher education administrators and by faculty for ownership of intellectual property rights may help identify which of the Supreme Court’s criteria support their cases.
The Administration View
Massive amounts of intellectual property support higher education courses, and these courses may come into being for several reasons. They may be commissioned by the educational institution, developed by faculty in concert with the administration, or produced for the institution with the help of an outside agency (Rhoades, 2001). Bolstering the case of ownership by colleges and universities is their often significant resource investment in distance education courses. For example, a joint project by Oxford, Stanford, and Yale Universities produced 50 courses ranging in cost of between $10,000 and $150,000 each (Klein, 2005). These institutions, and any others that provide resources to bring a creative distance education idea to fruition, can rightfully expect to receive compensation (Farrington, 2001), one aspect of which could be seen as the ownership of the resulting course. Klein (2005) adds that such ownership can also prevent faculty from providing the same courses for competing institutions. The Association of American Universities (1999) bluntly stated that “the university should own the intellectual property that is created at the university by faculty, research staff, and scientists and with substantial aid of its facilities or its financial support” (“Elements in a Policy for Research Universities on Intellectual Property and New Media Technologies,” ¶1). AAU, however, added that, since the content is created by collaboration, any revenue generated from the content should be shared by all who participated in its creation.
Farrington (2001) seemed to agree with AAU to a point, especially “where staff are hired specifically to produce materials for, or in support of, teaching and learning” (p. 80). This, he noted, would view a faculty member’s transporting a similar or identical course to another institution as a copyright infringement, a conclusion that is not universally accepted. In support of faculty ownership, Farrington cites the question of academic freedom and the more important issues of the creativity of faculty members in bringing courses to life and the relative lack of supervisory oversight (cf. Bunker, 2001). Additional considerations favorable to faculty include just compensation for contributions made to course development that may be beyond that called for in faculty contracts, as well as the long-standing practice of faculty’s retaining the copyright of works they produce and of taking those works with them as they move between institutions. Often, writes Klein (2005), faculty seek to generate revenue for themselves from their courses, believing that the amount of labor required to create and teach an online course earns them ownership. It should be noted, however, that the amount of effort expended on projects is not equated to ownership in most other fields, professional or otherwise.
The Faculty View
The American Association of University Professors (n.d.) comes firmly down on the side of the faculty and states unequivocally: “Intellectual property created, made, or originated by a faculty member shall be the sole and exclusive property of the faculty, author, or inventor, except as he or she may voluntarily choose to transfer such property, in full, or in part” (“Who Owns Intellectual Property?” ¶ 2). AAUP sees as the overriding principle that “academic freedom, free inquiry, and freedom of expression within the academic community may be limited to no greater extent in electronic format than they are in print” (American Association of University Professors, 2005, ¶ 3). As for the claim by universities and colleges that they should have a return on their investment in distance learning courses, AAUP counters that “a work should NOT be treated as ‘made for hire’ merely because it is created with the use of university resources, facilities, or materials of the sort traditionally and commonly made available to faculty members” (American Association of University Professors, n.d., “Who Owns Intellectual Property?” ¶ 3, emphasis in the original). Note the reference to “resources, facilities, or materials of the sort traditionally and commonly made available to faculty members.” Presumably, since face-to-face and distance education courses use the same resources to produce syllabi, handouts, and digital media information, these should be the property of the faculty members when they develop online courses.
AAUP does give three conditions under which the college or university can claim copyright ownership. The first two are the faculty’s being directed by the university to produce the work or signing over copyright to the institution. The third condition seems to apply especially to distance education courses:
The institution can exercise joint ownership under this clause when it has contributed specialized services and facilities to the production of the work that goes beyond what is traditionally provided to faculty members generally in the preparation of their course materials (American Association of University Professors, n.d., “Who Owns Intellectual Property?” ¶4).
Distance education courses typically require twice the development time as traditional courses, with adequate training correlated with distance education participation (Lee & Busch, 2005). Hence, with as much as 80% of course development needing to be completed before the coursework is offered, higher education institution typically provide staff to assist instructors in fulfilling “the additional roles of instructional designer, technology specialist, and administrative advisor” (Restauri, 2004, p. 32). Therefore, it seems that distance education courses generally involve the provision of specialized services and facilities that go beyond what are required for face-to-face education. By AAUP’s provision above, jointly produced distance education course materials should involve at least joint ownership by both the faculty and the institution. The American Educational Research Association (2000) lends support to this view when it states: “Individuals or groups who fund or otherwise provide resources for the development of intellectual products are entitled to assert claims to a fair share of the royalties or other profits from the sale or disposition” (p. 7). While some may see using the production means to determine intellectual rights ownership (rather than the source of creative input) a sign that the academy is following a corporate model (Rhoades, 2001), faculty often depend on the additional creative input of institutional staff when producing a distance education course. Finally, Reid (2004), while noting the continued strong support in the institutional policies he examined for academics retaining the intellectual property rights of the materials they produce, adds that this notion is fixed only in traditional policy. In common law and statute, the employer is the presumed owner of the academic’s intellectual production. It is therefore the position of the writer that, in agreement with Farrington (2001), “all copyright material, in whatever form, generated by staff in the course of their employment belongs to the employer” (p. 83).
Copyright Ownership or Rights and Remuneration
Care must be taken to provide incentives for all parties to continue the development of distance education materials (Nemire, 2007). While acknowledging that colleges and universities retain the intellectual property rights of materials produced by its faculty will be a severe adjustment for some faculty members (Bunker, 2001), it will replace a patchwork system of negotiated and nonnegotiated rules caused by the ambiguity of the current Copyright Law (Klein, 2005) that may or may not serve the interests of faculty or the institution.
The American Association of University Professors urges faculty to negotiate contracts that supersede the Copyright Law of 1976 and return to them institution by institution the teacher exception they enjoyed under judicial case law based on the 1909 Copyright Law (Quigley, 2001). However, such contracts do not serve the best interests of faculty in general. The first reason is that, despite the provisions of any contract, individual faculty can negotiate their way to exceptions (Rhoades, 2001), which may be unfair to the rest of the faculty. As a second reason, as Klein (2005) notes, many current agreements award property rights based on the degree to which the institution financed the development of the course materials, the same argument put forward above for granting the ownership of distance education materials to the sponsoring institution.
A third reason is that, when the argument of intellectual property ownership is based on the control of faculty time, it is done so with great inconsistency across institutions. Rhoades (2001) observes that unionized institutions tend to see the faculty members’ time as their own, while nonunionized institutions claim the time faculty use to create their course and research materials. Even with unionized contracts’ bias toward faculty ownership, Rhoades (2001) admits that “some contracts differentiate between routine and significant uses of institutional resources” (“Ownership Issues,” ¶ 10) and would call the latter a work for hire.
Finally, even with a contract that allots copyright to the faculty who produce a course, it may not be at all certain that those faculty also have the rights to develop that course or transport it to another institution. Quigley (2001) reminds readers that contracts have awarded faculty copyright while granting the institution “exclusive, lifetime rights to develop the faculty member’s content into a multimedia course, often with credit but with no remuneration” (“Know Your Copyrights,” ¶ 1). This is analogous to owning the title to a parcel of land while ceding the mineral rights and their plundering to outside investors.
A Negotiated Alternative
With these reasons arguing against leaving the question of intellectual property ownership to individual contract negotiations, until either case law or statute establishes a firm national policy, the proposal that intellectual property rights should be vested in the institutions employing the faculty forms a firm foundation upon which to decide how the various parties involved in the creation of the materials should be compensated with either remuneration or rights. For example, AAUP recommends that agreements “allow for institutions to use works created by faculty members without charge for educational and administrative purposes within the institution” and that institutions “be permitted to use such material for internal instructional, educational, and administrative purposes” (“Who May Use the Intellectual Property?” ¶ 1). These recommendations are met if the faculty who had a significant role in developing courses were permitted by institution/faculty intellectual property agreement to use the materials developed for those courses without royalty payment at any future institution by which those faculty may be employed.
To codify the assignment of permissions and rights, each institution should create a facultywide “formal written policy” that stipulates the ownership of intellectual property and the rights of both the institution and the developing faculty. A committee should be formed to help manage the implementation of institutional policy (AAU, 1999). Both AAUP and AAU see this committee as involved in formulating or recommending policy, keeping the campus alert concerning legislative and technological developments, and resolving disputes (AAU, 1999; AAUP, n.d.).
As part of the policy governing the use of institutional intellectual property, AAU (1999) recommends that faculty be restricted from producing commercial distance education products for other institutions or companies without the permission of the faculty’s home institution. As most faculty contract have within them a clause that gives the institutions first use of a faculty member’s time and requires faculty to notify the institution of any other employment they may undertake, this provision seems unremarkable. AAU also concludes that intellectual property produced by faculty with their own resources and not for coursework at the institution belongs solely to the faculty member. Thus, AUU recognizes that faculty can produce materials on their own time. Interestingly, even when intellectual property is owned by the institution, AAU advises honoring the long-standing tradition of allowing faculty to continue receiving royalties from their written works.
Zhang and Carr-Chellman (2006) note two possible models of faculty/institutional ownership and rights. Pennsylvania State University faculty agreed to grant copyright ownership to the university’s new World Campus for all materials developed by faculty at the request of the university and for which they are compensated. Penn State also claims the right to use royalty-free any materials faculty may produce on their own. Faculty are prohibited from producing course materials for Penn State competitors. The University of Wisconsin System claims university ownership for courses developed as work for hire, assigned duty, or with substantial use of institutional resources. Course materials developed by the faculty on their own with minimal use of university resources (including the use of university labs and equipment) are considered the property of the faculty. As authors of the material, respect for academic freedom is such that the faculty are consulted when the courses are to be distributed externally, or when they are to be altered or revised. This second model seems more in keeping with the goals of both AAU and AAUP.
Should disputes arise (as they inevitably will), both AAU and AAUP recommend a committee be used to settle the question. Klein (2005) recommends a three-step process that gradually increases the scope of those involved. The first step would be an attempt to solve the dispute between the parties claiming copyright ownership or rights to a product. The second step would bring in the standing committee to help bring the dispute to a close. The final step would be formal arbitration.
Conclusion
The ownership of the rights to distance education courses is important because of the value of the intellectual property to both the faculty members and the institution, and the resources that both have invested in its creation. Strong arguments can be made for granting intellectual property rights for distance education course materials to either the academics who produce them or the institution that employs the academics. Arguing for academics retaining the rights are long-standing tradition regarding print and video materials, the personal investment academics make in course materials, the threat to academic freedom perceived in the loss of ownership and the control it represents, and the need to preserve the ability to transport the course materials with the authoring academics as they move to new locations. Arguing for institutional ownership of these intellectual property rights are the “work for hire” provision of copyright law, the resources that the institution provides over and above those used for producing resources for face-to-face courses, the generally uncertain nature of individually negotiated faculty/institution property rights agreements, and the need to protect the name of the institution associated with the course material. Granting intellectual property rights of distance education materials to the sponsoring institution best preserves the institution’s investment of staff, resources, and name. Including in this ownership the provision that authoring faculty retain the perpetual right of use, augmentation, and remuneration best preserves the faculty member’s investment of creativity. With these two principles as the foundation, the interests of both administration and faculty can be served, with the details concerning the use of distance education property decided by a negotiated committee decision at the local institution.
