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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.
Literature Review concerning Intellectual Property Rights In Higher Education Distance Education (DE) Courses - part two
Twigg (2000) summarizes the results from a Pew Symposia on property rights and distance education classes attended by 14 administrators from institutions of higher learning. The goal was to determine what institutions should offer in their policies on intellectual property rights. Why is there a shift towards institutions claiming property rights? Many institutions see course content as being a possible revenue “gold mine” that could be repackaged and sold, and many fear instructors might take these assets and create competition. Meanwhile professors are concerned that their instructional skills are being relegated to content development, and they fear losing positions to lesser skilled and far less remunerated “instructional designers.” Twigg argues that instructors are not so easily replaced because online classes demand even more skills and user interaction than face-to-face courses. Arguments about ownership can be helped by copyright law, but arguments hinge on the question of “works made for hire” and the historical “academic exception” to this. Copyright determines ownership, yet ownership is not the answer–“it is a red herring” because ownership does not necessarily include the legal ability to actually use the material (n.p.). Rather the real question is: who needs to do what with the work? The default position should be that ownership of course materials remains with faculty, however there is a need for policies to have built-in “triggers” for colleges or universities to receive royalties if they invest “substantial contributions” in these projects. Institutions should support faculty; this should not be a fight.
DiRamio and Kops (2004) discuss the huge impact that distance education has had on the learning environment and then look at three major aspects: (1) shared governance and education policies, (2) ownership and property rights issues of DE, and (3) issues of copyright and course materials for DE. The authors suggest separating debates on copyright and fair use from those concerning intellectual property, ownership, and control. They also recommend implementing TEACH for it affords many benefits. DiRamio and Kops conducted a study in which they interviewed higher education institutions and found that more institutions than not lacked formal distance education policies as well as documents concerning ownership of intellectual property. This problem afflicts two-year colleges more than universities, and in response the writers point out some of the issues of not having policies and urge well-thought-out policies. They also analyze copyright laws and and implications of TEACH for fair use. One problem is that the copyright law of 1976 was not necessarily applicable to distance education. For this current research, perhaps the greatest importance of this article is in summarizing McSherry’s study from 2001 in which the idea is presented that faculty should probably forgo discussions on copyright concerning distance education materials and instead claim that they are part of their “public persona” and thus are protected utilizing a “privacy-celebrity legal strategy” (p. 44).
After noting that scholars are “highly mobile” and comparing higher education institutions versus faculties’ concerns over who maintains control of educational content, Zhang and Carr-Chellman (2006) contrast two models for developing institutional courseware (p. 175). They note that this disagreement over control stems from differing viewpoints: faculty believe institutions are there to support educators in their research and quests for knowledge, whereas administrators believe faculty are there to serve the institution itself (p. 176). They admit that instructional designers (IDs) often assist faculty in these endeavors (“collaborative creation”), so courseware is different than face-to-face instruction (p. 177). The first model comes from the Association of American Universities (AAU) whose stance is that the university should own the intellectual property created by professors and that this is intrinsically different from patents (pp. 177-178). Whereas the Association of American University Professors (AAUP) argue that Policies from three university systems are then compared. University of Texas faculty have traditionally owned their own materials, and they should continue, but admit the institution should get royalties if they have contributed. Penn State is concerned about competition from other institutions and thus the institution maintains property rights. The University of Wisconsin maintains ownership of courseware only when: “a) work-for-hire or b) assigned duty, or c) with substantial use of institutional support of involvement” (p. 181). Zhang and Carr-Chellman laude UW for defining “substantial use.” They finish by asking an essential question: what is the goal or mission of higher education -- advancement of knowledge and education or procurement of patents and copyrightable works?
Nobel Laureate and Columbia Professor, Joseph Stiglitz delivers an extremely thought-provoking and instructive streamed lecture on intellectual property rights sponsored by Duke University. Although not directly about distance education, his thoughts on property ownership strike at the very core of the issue of intellectual rights. Stiglitz argues that patents and rights commonly believed to foster creativity and advanced science may actually be slowing innovation. This has tremendous economic implications for the United States compared to other countries as well as for people who are economically challenged and dying from diseases who cannot pay exorbitant prices for medicine. Other examples are given of globalization and intellectual property issues including looking at the history of patenting the automobile and airplane, besides Microsoft, “bio-piracy,” and the WTO. Stiglitz speaks out against the inequities of the “intellectual property regime” although he admits that theft of intellectual property is stealing. He posits that “knowledge is a public good” and that “academics…want [their] ideas disseminated.” Alternatives to the patent system including a price system and guaranteed purchase funds are offered.
references (bibliography)Distance Education and Ownership by
William Straub is licensed under a
Creative Commons Attribution-Noncommercial 3.0 United States License.
