Distance Education and Intellectual Property Rights: 2009-06-21

Purpose
This blog will document my research exploring copyright, intellectual, and property right issues concerning distance education specifically for postsecondary institutions in the United States. The number of distance education and online courses has continued to increase dramatically over the past decade. Yet the number of tenured faculty is decreasing, meanwhile adjunct and associate faculty are being given greater teaching responsibilities. Surely questions of rights to course materials are not going away in the foreseeable future. Copyright Law gives us some clues but leaves many questions unanswered causing some educators and/or colleges and universities to turn to license agreements in order to secure royalties. This brings up issues including fair use, definitions of what is an employee (“work-for-hire” versus “independent contractor” status), the fairness of academia providing “substantial resources” enabling instructors to develop and create course materials, intellectual freedom, and the societal implications for these decisions, among others.

Although this research will include copyright and fair use issues, the current study will be limited. At least for the first two weeks of this course, this blog will not investigate such topics as what types of materials instructors may include from copyrighted sources for use within distance education classes, nor will it look at fair use regarding student rights and responsibilities when using copyrighted materials for their own distance education projects and assignments. However depending upon time and other factors, perhaps these topics will be explored in weeks to come.

*Please note that the references (bibliography) have been placed on a separate linked page in order to facilitate updating as well as ease-of-use by the reader.

What does distance education have to do with libraries and librarianship?
Distance education affects many libraries, and thus it is fitting that the American Library Association (ALA) as well as other library representative organizations have been developing policy statements on the topic. Academic libraries, in particular, provide instructional resources for students enrolled in distance classes including interlibrary loan, print and electronic reserves, reference services, as well as having access to view recorded lectures that the student may have missed. Just because a course is being taught online does not necessarily eliminate the need for students to have actual physical libraries. In fact, some academic librarians complain that they are spending as much or more time assisting students enrolled in distance education classes from other institutions than they are assisting students enrolled in local classes. Librarians, with their knowledge of Copyright Law as well as their background with information sources, are often called upon to assist with distance education programs. At least one community college placed the library director in charge of the distance education program, at least temporarily, while hiring a full-time director of distance education. Therefore libraries and librarians, especially in the academic field, may be called upon to help write and perhaps spearhead, if not at a minimum implement, policies regarding intellectual property rights and copyright ownership regarding distance education courses and materials. School librarians and media specialists in K-12 settings are also being asked to help with distance education endeavors which have increased 19% over the past years according to Talab (2007, p. 10). Even public librarians are being called upon to assist students enrolled in distance education classes.

Disclosure
Before looking at what some of these scholars have to say about property rights of distance education materials, it seems only fair to disclose this writer's background and interest in this topic. With such a controversial issue, it would be rare to find a writer without any bias, so here is mine.

I have been an educator for almost 20 years, although much of that was part-time. I have taught high school for three years and adult education in subsequent years. For eight years I taught as an associate faculty member at a community college in addition to working part-time as a laboratory assistant and technical support staff for the department of disabled student programs and services at the same institution. I taught computer skills and study skill classes for people with disabilities, everything from teaching students who were blind how to utilize screen readers, to helping students get through their retraining program after suffering an on-the-job accident. Part of my job included overseeing the program to close-caption educational videos as well as implementing the live captioning of distance education broadcast (cablecast) televised lectures. I have presented training sessions for faculty and staff on creating accessible online documents including those produced for the institution's Blackboard online course management system (CMS). Over the years, I have developed the gamut of educational materials including numerous lesson plans, quizzes, tests, assignments, etc. both in print form and online.

A few years ago I remember coming across an article that questioned whether the copyright of course materials created by instructors belonged to the instructor or to the institution for which she or he worked. I was aghast at the notion that I might not actually have the right to the course materials I had developed, almost all of which I had developed and created on my own time during nights and weekends using my own funds and materials. Why would I spend my free time and personal resources to create this material? Partly, it was fun to develop new and creative lesson plans and materials. Besides the enjoyment, it was a challenge and a learning experience for me, plus I could see the benefits for my students. When I would leave my teaching job for another with another school, I always left behind some of my teaching materials in the hopes that the materials would serve other students and colleagues. Perhaps I was naïve, but it just seemed like the right thing to do. In the interim, I have not taken the time to read much about the topic of instructor property rights. But I never forgot that someday I needed to study this in more depth. This is my chance.

Now that my background is known, in order to better understand these issues let us now turn to what some of the scholars and other thoughtful individuals have to say.

A Literature Review
McMillen's (2001) 69 page book on intellectual property and higher education covers copyright as it applies to academic institutions and then looks at ownership and the “made for hire” doctrine in detail. The text also explores fair use and the debate over faculty lectures being copyrighted. Explanations and analysis of actual Supreme Court cases round out this excellent text. For example, to answer the faculty lecture copyright question, McMillen Quotes from the 1976 Copyright Act, and then offers an opposing theory which is scrutinized and compared with several other court cases (pp. 42-43). McMillen carefully explains how instructor's lectures are most likely covered under Copyright Law even when the lectures are not written down or fixed, yet he allows for the possibility this may be overturned in future cases. This discussion then segues into ownership issues regarding faculty lectures and ownership rights with a similar analysis of various sides of the arguments bolstered by actual law cases. Although this text is not written primarily about distance education, it still gives an excellent grounding in rights law and it does include coverage of Web-based courses (pp. 36-38) as well as a case study involving online education (pp. 68-69). Note that apparently McMillen's references at the end of the book are not complete.

The main focus of Kromrey, et al. (2005) is an analysis of how copyright and intellectual property right policies from 42 universities have changed over time from 1992 to 2005. After a background assessment of past studies, as well as applicable Copyright Laws, and a discussion of works for hire versus faculty exemption amidst academic freedom, the findings of their own study are presented. Their areas of concern include the fact that numerous universities claim the rights to distance education materials no matter how they were made or who was responsible. Half of the universities surveyed defer property rights of lectures, tests, syllabi and other course materials, but only a few offer these rights to instructors when these materials are posted online. Besides the fact that all the institutions surveyed now offer policies regarding ownership rights, the creators of this study were also heartened that almost all institutions are willing to share royalty privileges with the actual faculty creators. Their final conclusion is that universities must protect the rights of faculty or else they stand to lose the creative and beneficial materials altogether. Thus greater cooperation needs to prevail for the continuation of scholarly work.

Lipinski's (2005) accessible book on distance education and copyright includes a clearly written analysis of arguments based on court cases regarding who owns the copyright for distance education courses and course materials (pp. 6-16). An examination of “works for hire” is contrasted with “independent contractors.” He then provides an explanation and analysis of court cases leading to a faculty authorship exception to the employer owned results norm. His well-written work also includes appendices with copyrightable and distributable model distance education copyright policy and TEACH question and answer compliance audits which would be useful for a variety of institutions.

Within a 118 page book, Bobbitt (2006) offers a good historical background on property and intellectual property law, starting with the general and moving into more specific areas. The historical overview spans from 15th century Venice, Italy with its initial patent laws utilized by Galileo, through American colonial times, initial copyright and patent law, First Amendment and supreme court issues and into the Twentieth Century analyzing relevant case laws. Bobbitt's detailed explanation of relevant cases regarding “work-for-hire” and workplace intellectual property issues provide grounding in the foundational arguments for understanding more recent higher education intellectual property disputes. Although published in 2006, surprisingly all of Bobbitt sources are pre-2000 and thus his work is in need of updating.

Comparing the commodification of education to the increase of big-box retail stores, Talab (2007), also explores the “work-for-hire,” fair use, academic freedom, and the need for institutional policies arguments. Like other authors, she explains how the number of tenured faculty continues to decrease while associate faculty increase in number and are teaching a greater number of classes. Talab acknowledges that higher education institutions should receive some of the royalties when they have dedicated “substantial resources,” but overall concludes that “faculty must retain intellectual property rights” as foundational for democracy (p. 9).

references (bibliography)

Plan for this coming week
As this initial literature review has shown, some of the major themes running through these texts include: the “work-for-hire” versus the faculty exemption for higher education instructors; the applicability of Copyright Law yet the lack of it fully answering the question of intellectual property rights; and the issues of justice and fairness regarding time, energy expended, work performed, and remuneration for that work. Over the next week, I plan to continue researching these issues by summarizing in greater depth what has already been discovered, besides expanding upon this growing body of sources, each with its own perspective. I also plan to analyze and critique the different viewpoints to try to bring some clarity to the question of ownership of the actual courses and course materials for distance education in higher education.

Distance Education and Ownership by William Straub is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.

Distance Education and Intellectual Property Rights

Sunday, June 21, 2009

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