Distance Education and Intellectual Property Rights: Literature Review, Part III

This week I read four more sources on DE (distance education). Although not all were directly related to intellectual property rights (IP), they were helpful for understanding the broader context of the IP debate as well as gaining a broader understanding of the role that libraries play in providing support services for DE.

In their chapter on Copyright and Distance Education, Bielefield and Cheeseman (2007) postulate as to why distance education has become so popular, and then set the context for the Technology, Education and Copyright Harmonization Act (TEACH). The majority of the chapter looks at the most applicable parts of Public Law 107-273, the TEACH Act, specifically Subtitle C – Educational Use Copyright Exemptions. They then quote from the law and comment on it, analyze it and explain it in terms of its application to libraries and educators. Some of the topics analyzed include “mediated instructional activities,” “accreditation,”and “ephemeral recordings,” among others. Institutions need to have a copyright policy in place and provide educational materials for faculty, staff and students supporting and informing compliance with copyright laws. Although Bielefield and Cheeseman's text does not explicitly cover intellectual property issues with DE, nevertheless it is useful for understanding the TEACH Act and how its interpretation has led to more oversight and control over DE classes by administration. They also elucidate the role of librarians in providing support and materials for DE including electronic resources, electronic and traditional reserves, and interlibrary loans. “As with other parts of the copyright law, librarians' knowledge of the TEACH Act will support their institutions in providing strong and relevant distance education programs” (Bielefield, & Cheeseman, 2007, p. 171).

According to Crews (2002-03), "[t]he TEACH Act is an opportunity, but it is also a responsibility... a benefit, but also a burden" (penultimate paragraph). In this article prepared for the American Library Association (ALA), Crews gives a brief history of the development of the Technology, Education and Copyright Harmonization Act (TEACH) Act including looking at copyright law and its implications for face to face teaching and classrooms. This is then contrasted with DE teaching, which now must impose limits on how long students can access copyrighted resources. Educational institutions are more at risk for litigation than ever before, however TEACH does put fewer restrictions than the 1976 copyright law on the types of materials that can be used in instruction. Plus analog works can be digitized unless there are pre-existing digital formats available. Despite the limitations of TEACH, fair use still is applicable. Although TEACH does not specifically mention librarians, Crews outlines eight major ways in which libraries will be involved in distance education and how they are affected by these guidelines.

Rhoades (2001) is concerned that instructor's works are becoming commodities, and that this issue affects all faculty. Ownership usually depends on a number of factors, and faculty usually do not retain rights to their published works. Instead, the publishers own the rights. Collective bargaining units, i.e. unions, can help faculty gain more protection for their time and efforts. Unfortunately, the public who has paid for much of this work with their tax money is left out of the equation. Rhoades offers four possibilities regarding property rights ownership of academic works. First, instructors can and should publish their works and collect royalties, and then the works should be placed in the public domain to make them available for free in libraries. This would help scholars' works be more widely read and cited, plus it would allow for the tenure process to continue. Second, set aside funds raised from intellectual property into a public trust, akin to what some universities already do with patent monies. Third, whatever the public pays, discount that amount as a subsidy. Fourth, bar the sale of intellectual products by universities. For example, university should agree not to sell distance education materials developed by their staff and faculty. This is because the intellectual property belongs to The Public, and not to the academic institutions.

An article by Yang (2005) clearly demonstrates how librarians are involved in DE. Yang conducted a novel survey of ARL (Association of Research Libraries) libraries to determine how they were following ACRL (Association of College and Research Libraries) standards and guidelines for DE. The study found that two-thirds of ARL libraries support DE activities, three-quarters offer ILL (interlibrary loan), most offering free document delivery, although some charge students shipping fees for books. Twenty-one percent of ARL institutions have full-time DE librarians. More than half of the librarians had helped create online materials for library instruction. Overall libraries try to meet the requirements of the ACRL DE guidelines, however a number of issues impede this, including: lack of time,lack of institutional priority and support, no central DE office on campus, and no access to student contact information and thus the inability to assist students unless they contacted the library first. Although Yang's article does not specifically mention property rights or ownership issues of DE, it is important to understand the extent to which librarians are an intrinsic part of DE endeavors.