Most academic librarians support DE in some way, whether directly or indirectly through interlibrary loan (ILL), electronic and print reserves, reference services, and more. Knowing who owns the materials dictates, at least in part, workflow procedures and operations for material handling. In addition, librarians are called upon to share their knowledge of rights laws and to continue the discussion of what it means to be a college or university in today's society.
Historical Underpinnings
First, let us turn our attention to some of the factors that coalesced to bring about this fight over intellectual property and copyright.
It would be difficult to overstate the impact that the rise of the World Wide Web, beginning in the 1990s, has had on our society including colleges and universities. Of course there are various modalities of DE: via correspondence, television, or online to name a few. DE quickly made use of the Web for delivering online content to students and enabled asynchronous instruction. Instructors could record lectures and post materials, allowing students access to these materials any time that was convenient for them, day or night. Student enrollment in DE classes surged and the number of courses offered quickly multiplied. During this same time, numerous institutions of higher education were experiencing a cash flow problem, and in many states, taxpayer support for higher education had decreased. For example, in California, colleges and universities that were formally top-rated institutions in the country with ample funding, had fallen in quality in reception of financial support. Many administrators hoped to save money through greater promotion of DE classes, as well as expecting that additional income could be garnered through selling online course materials.
Despite initial hopes that DE would be a major cost savings for institutions, the reality soon became apparent: it usually takes more time to prepare online classes than face-to-face, and the technical support demands were much greater. Online DE classes usually demand a high degree of instructor interaction responding to posts and questions, as well as engaging in discussions with the students, perhaps on a 24/7 basis. Technicians and other instructional support staff are often required to maintain CMS (content management system) servers and software for online classes. Instead of a cost savings for institutions, DE may actually cost more money. For example, one community college district in California was paying approximately $50,000 per year for Blackboard CMS software upgrades in order to meet increased demands from faculty and students. This institution has subsequently switched to an open-source CMS to try to keep costs down, but still requires occasional server upgrades and ongoing technical support from IT staff.
Meanwhile libraries were struggling with decreasing budgets and another serials crisis with skyrocketing journal prices causing the need for relinquishing subscriptions. McSherry (2001) perceptibly explains that librarians and others noticed the irony in the debate over faculty copyright. Although the debate has been fierce, faculty rarely retain copyrights to written works. Instead they relinquish these rights to publishers in order to gain notoriety and honor for their writings as well as for tenure purposes ("publish or perish"). However at least in public institutions, taxpayers in effect pay the salaries of these faculty, and then taxpayers also pay for libraries to purchase costly peer-reviewed journals with feature the very works these faculty have created. Not only is this double-payment ironic, but it is also unjust, and probably not a sustainable paradigm as journal prices continue to rise and library budgets struggle to keep pace.
It is a myth that copyright laws apply equally to print and digital educational materials, especially when regarding asynchronous online classes. DE is different from face-to-face instruction, in terms of legal compliance, copyright law, and accessibility for people with disabilities. According to Russell (2004), "digital materials are more protected than analog" (p. 46).
The DMCA (Digital Millennium Copyright Act), which passed in 1998 and the Technology, Education and Copyright Harmonization Act (TEACH Act) from 2002 have required more administrative policing of intellectual property and copyright adherence. TEACH resulted in institutions having to be much more careful about copyright and holds them more accountable for infractions than previously. This includes the mandate for educational institutions to inform and educate staff, students and faculty about copyright and include such information in all distance education courses. An administrator now must have oversight of actual distance education course materials or else the institution itself, and not only the instructor, may suffer heavy penalties ($150,000 for a single copyright infringement infraction [DiRamio & Kops, 2004]).
The Americans with Disabilities Act (ADA) of 1990 and Federal section 508 from 1998 mandate universal accessibility for all students including those with disabilities. Accessibility compliance has oftentimes increased costs, and required more administrative oversight of classroom content. Of course students with disabilities greatly benefited from these laws, and helped to further increase enrollment figures, but also required more expensive services, especially captioning and interpreter services for people who are deaf or hard of hearing.
It is against this backdrop of exponential growth of DE, changing copyright laws, and the need for more administrative oversight, that the question over who owns DE course content arose.
The Debate Over Rights Ownership
Copyright Law dictates that the original author(s) or creator(s) retain the rights to an original creation. Other than the course syllabus itself, when an instructor writes instructional material or a lecture, the copyright is retained by said instructor. Words and speeches are thus not themselves copyrightable unless or until they are "fixed in any tangible medium of expression", that is, written, or made manifest in some form (Copyright Section 102(a) and Title 17). This is based in part upon the Lockean labor theory of property. "The labour that was mine, removing them out of that common state they were in, hath fixed my property in them" (Locke, 1690). If instructors are the sole laborers in developing content for DE, then they should be entitled to the privileges of ownership.
However, this is not always the case. Creating online content often involves the expertise and labor of a number of individuals besides the instructor. Web design and coding, and graphic design often require the assistance of instructional and technical support staff who work in conjunction with the faculty member. Higher education institutions should receive some of the royalties when they have provided "substantial resources." Unfortunately, the term "substantial" is often not defined in many institutional policies – the University of Wisconsin being an exception to this oversight (Zhang and Carr-Chellman, 2006, p. 181).
Depending upon the institution, instructors may be required to sign a waiver, transferring rights of any developed instructional content to the institution. This is the case at Penn State where there is great concern over competition from competing online institutions (Zhang and Carr-Chellman). It seems only just and fair that whoever put forth labor and/or took a risk, deserves to be compensated in some way, whether that is the faculty members who initiated the project and/or in the institution who assisted in the development and final presentation.
In general, the work created by an employee while on the job belongs to the employer and thus the employer retains the rights to any creative work. This is known as "work-for-hire." However there is a long-standing tradition of faculty exception to this in that instructors in higher education maintain copyright and property ownership of course materials and writings. This faculty ownership right enables the possibility of faculty writing and publishing scholarly works in order to maintain the tenure system, and thus continuing the tradition of "publish or perish." As was stated earlier, DE is inherently different than face-to-face instruction and therefore this tradition of faculty exception for DE materials is not obligatory. In fact, it varies by institution, and oftentimes any and all rights to DE materials are ostensibly held by the institution.
Some faculty, according to DiRamio and Kops (2004), have advocated arguing for personal rights rather than intellectual property or copyrights. Anyone with knowledge of good pedagogy knows that an instructor's lecture is more than simply words, for they also include gestures and notes on the board. Online lectures often involve slideshows. Whatever the form taken, instructors' lectures and content are almost dramatic works. Utilizing this "privacy-celebrity legal strategy" shifts the debate from rights to slightly more solid legal standing (DiRamio and Kops, p. 44). Although the argument may initially center around fair use, the real kernel of the argument revolves around control of the information (DiRamio and Kops).
Possible Solutions
How can faculty retain control over what they have created if they are the sole developers? There is no one correct answer for it depends upon institutional policies, which vary, and also case-by-case, for faculty can sign terms with an institution in order to elucidate who will retain control over the rights.
There has to be a better way.
One option is for instructors to retain copyright yet disseminate their works is through the Creative Commons Rights Expression Language (ccREL) which encodes license information metadata utilizing resource description format (RDF) or XMP (Extensible Metadata Platform). This allows licenses and rights information to be readable by computer systems utilizing the semantic Web. Examples are given of ccREL markup are available on the Creative Commons wiki (http://wiki.creativecommons.org/CcREL#Examples). Instructors and other content creators can simply copy and adapt this code for their own rights requirements for online materials. Another option is simply to create a Creative Commons license using their online step-by-step license creator (available http://creativecommons.org/license/), and then copy and paste the resulting image into the work. Utilizing one of the Creative Comments licenses enables creators to employ more granular rights options than those simply offered by copyright. Drawbacks to this include an absence of peer review, however there are open access (OA) journals which do offer peer review. Numerous examples of peer-reviewed or editorial board vetted OA journals can be perused at DOAJ (Directory of Open Access Journals) http://www.doaj.org
Authors can even make a statement as Russell did on the the verso of the title page of her book stating:
[y]ou are free: to copy, distribute, display, and perform the work and to make derivative works [u]nder the following conditions: Attribution. You must give the original author credit. Noncommercial. You may not use this work for commercial purposes. Share alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under a license identical to this one.
In this way, Russell demonstrates this by allowing for the legal dissemination of the intellectual content, meanwhile protecting her right to an income from sales of her book. This seems to be a just and reasonable model for course materials for higher education as well.
The Role of Academia and Libraries in Society
Is the function of higher education to prepare students to teach themselves and to learn how to learn, to impart knowledge about a field of study as a form of mentorship, or is it to develop new ideas which can be patented and marketed for economic gain? Is the role of the university in society to advance knowledge or to be incubators for new business ideas? (McSherry, p. 32). Or perhaps it is a combination of the aforementioned, or perhaps something entirely different?
Several scholars have voiced their concern that institutions of higher learning are being commodified, and thus fear that society will lose access to faculty members' pursuits of knowledge unfettered by the goal of economic gain (McSherry; Rhoades, 2001). This also threatens academic freedom. "The discourse of academic freedom ... is based on the assumption that the university is a special site of disinterested inquiry, not a market for the exchange of intellectual property" (McSherry, 2001, 4). If higher education has become commercialized and objectified and if the public has been left out of the equation, it is no wonder that there is less support for public higher education.
Since the seventeenth-century, when the modern day conception of a university began with its Germanic roots, there has been a tradition of academia being separate from the business world. This division has been eroded, especially during the twentieth-century, with universities assisting more directly with military and corporate interests, especially during the Cold War. (McSherry, 62-63). Higher education and knowledge itself have become commodified in colleges and universities. Therefore the debate over who controls and retains the rights to this property is only to be expected.
Fortunately, not every instructor has succumbed to this. At many institutions, faculty are more concerned with teaching than with intellectual property rights. Some have said it is better to have people plagiarizing or copying one's work without remuneration than to simply be ignored or to have one's works go unread (Stiglitz, n.d.).
Viewing the question of who retains the rights to DE course materials as simply being a debate between two parties is more than slightly misguided for it leaves out the public and the concept of the common good. Most notably in public institutions, taxpayers (i.e. the public) deserve to benefit from their "investment"in public education. Of course, justice and fairness dictate that whoever created the content should retain the copyright, but that distinction between creator and implementor has been blurred with the complex and multifaceted requirements for DE content. Policies vary at different institutions; there is no overreaching law upon which this ownership question has so far been answered.
This argument in favor of public domain rights can also be argued on higher ground. Some have shifted the question away from ownership and focus more on public good based on the notion of "gift economy," that is, sharing ideas and materials without expectation of material remuneration (McSherry, p. 75). This harkens back to the Platonic idea of sharing wisdom freely as Socrates and his followers practiced. Of course instructors need to be paid for their work, but rather than emphasizing ownership, the concept of offering knowledge as a gift reverses the trend towards commercialization and commodification of education.
It is this writer's contention that libraries too should strive to offer their services, as much as possible, based on a notion of a gift economy. Libraries are in the "business" of providing services and information for the common good, meanwhile acknowledging and honoring the rights of creators, developers, and publishers who provide the information.
The field of librarianship is also about service and the common good (or at least should be). Librarians, of course, need to be knowledgeable about Copyright Law and intellectual property. Librarians, especially those in academic settings, need to be aware of DE rights issues in regards to loan, print and electronic reserves, reference services, as well as having access to copyrighted materials. By understanding the debate over DE materials, librarians can better create policies for lending and cataloging. For example should DE materials such as pre-recorded lectures be catalogued or simply indexed? It depends in part on who owns the rights over these lectures and the limitations they put on the time span during which they will be accessible. It is the librarian's job to manage and track access to these materials.
Conclusion
In the meantime, the debate goes on in more than a few institutions of higher learning. We should be reminded of what the IP and copyright laws are supposed to do: "The essential task of IP law is to ensure that monopoly rights (the private) do not erode the of freedom (the public)." (McSherry, p. 30). Hopefully, understanding this debate over intellectual property rights of DE materials will lead to a shift in perspective from solely focusing on copyright and intellectual property to focusing more on the public and the real needs of society. Colleges and universities need to reclaim a notion of the gift economy, as well as reemphasizing their roles as purveyors of the common good. Libraries are the ideal place to begin this shift in focus.
Distance Education and Ownership by William Straub is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.
