Preliminary Summary of Research thus Far

Copyright law dictates that the original author(s) or creator(s) retain the rights to an original creation. 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). It would seem that an instructor should retain the rights to any and all lecture notes, exams, and digital files of any sort created by her or him.

However, when a person is working for remuneration of some sort, then according to the law, the employee is conducting “work-for-hire.” The laws state that the results of such work belong to the hiring entity. This is in contrast to when a person is acting as an independent contractor, and the person will retain rights to their work. This makes sense and seems fair.

There is a faculty exception that applies to instructors and professors in colleges and universities that maintains that the copyright and property ownership of course materials and writings belong to the faculty member. 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.” It is worthwhile pointing out that this “faculty exception” does not apply to elementary or secondary school educators. All of their lesson plans and course materials are considered to be “works-for-hire” and thus are owned by their respective school districts or employers. (Although the justice of this differentiation between higher education faculty and professionals at lower levels may rightly be questioned, and certainly deserves further study, this current research project will continue to focus on higher education.)

This tradition of faculty ownership does not necessarily apply to works published or posted in digital format, in online course management systems, or on the Web. Thus the debate over intellectual property rights: are they retained by the faculty member creator or by the institution? Instructors and faculty argue that their rights are being infringed upon, and they call upon academic freedom as well as creator author rationale. But institutions of higher education have their justifications also.

Whereas the copyright law of 1976 allows for the distribution of some copyrighted materials for the purposes of face-to-face instruction in an educational setting, online courses are inherently different because items can be copied so easily and distributed outside of the educational setting. The Technology, Education and Copyright Harmonization Act (TEACH Act) (2002) makes a clear distinction between distance and face-to-face education in regards to copyright issues. Although it is clear that TEACH imposes strict guidelines on how copyrighted material may be included in DE classes, it is only after careful analysis that one may realize the large influence TEACH has on intellectual property rights. TEACH results in institutions having to being much more careful about copyright and holds them more accountable for infractions than ever before. This includes the mandate for educational institutions to inform and educate staff, students and faculty about copyright and include such information in any and all distance education courses. Therefore colleges and universities have had to play a greater role in distant education classes compared to face-to-face standard classes. An administrator now must have oversight of actual distance education course materials or else the school itself, and not only the instructor, may suffer heavy penalties ($150,000 for a single copyright infringement infraction [DiRamio & Kops, 2004]).

Understanding this context and the financial implications of the TEACH Act seems to be essential for understanding the greater role institutions are playing in the development and control, and thus claims on at least partial ownership, about distance education curriculum and course materials. Add to this the fact that academic institutions need to provide secure, time-limited technology, often in the form of servers running content management systems (CMS), for hosting distance education courses in order to meet TEACH guidelines. No longer is teaching a one-person act. Many courses require assistance from instructional designers, Web masters, technical support staff to maintain the CMS, and technical staff knowledgeable about accessibility compliance for students with disabilities, besides office support staff, and one can more easily see why institutions of higher learning claim at least partial ownership for their investment of institutional resources including time, money, and energy.

Instructors and faculty members counter these institutional arguments by claiming that the college or university already is saving money by not having to provide, furnish, or clean classrooms, which more than makes up for the cost of the server(s) and CMS software. Compared to the cost of building new classrooms and school buildings, distance education is more cost effective, according to instructors. They disagree vehemently with administrators claiming ownership over course materials when institutions have provided very little or no technical support or assistance with developing a materials.

And the debate continues....


This coming week, for my research I plan to consult a few more sources and continue the summary of my findings.






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