A Fresh Perspective

Who ultimately should retain intellectual property rights over Distance Education (DE) materials and courses?
Answer: The Public

In my research over the past weeks, the articles and books primarily focused upon the debate over whether IP (intellectual property) rights of DE course materials reside with the instructors and/or with the institutions. Rhoades has reintroduced The Public back into the argument between professors/instructors and institutions of higher learning regarding property rights. This is the most intriguing and thought-provoking argument, in this writer's opinion, thus far in this research project. Rhoades worries about the commodification of education along the lines of big business and that academia is losing the trust of the public. What has led to making big business out of universities? According to Rhoades, part of the issue stems from the Bayh-Dole Act in 1980 which allows faculty and universities to own patents on their academic work. Also technological advancements such as the Internet, coupled with financial issues of higher education, have led to a “corporatization in higher education” (paragraph 9). He is concerned that The Public is left out of the equation of property ownership, although tax money has often times paid for the initial research and work. Therefore he proposes placing educational materials in the public domain as a more equitable solution to the property rights and ownership debate.

Nevertheless, this argument is not without its flaws. Despite Rhoades concern for the core values of academia, and the good of students as well as the overall public good, current copyright and/or patent law allows for claiming rights on ideas fixed in some format. Thus Rhoades' idea of placing DE course materials in the public domain does not necessarily protect them from someone with less benevolent intentions of co-opting those ideas, rewriting them in a slightly different form, and then seeking to garner the rights to those materials. Unless some other system can be put in place to protect course materials outside of the world of academia, his goal of placing academic works in the public domain may not materialize. Despite this, it is this writer's contention that Rhoades is onto something very important. What about the public and the taxpayers? Is it just that they should be left out of the equation of intellectual property rights?

Unfortunately in the meantime, students and instructors, as well as the public, might be better served by simply allowing the current situation to go on. Although stricken with debate, often it is the faculty who retain rights over the materials they have created. If an institution has given substantial assistance in the preparation of those materials, it should be entitled to royalties, if not outright ownership of the materials depending upon the amount of assistance. Each institution currently can have its own policy which dictates who retains the rights over DE courses and materials. It is a flawed system, and often unclear, however for the most part it keeps course materials within the realm of the university or college where they were created. And that allows students to continue to benefit from distance education classes and materials. With lifelong learning, we are all students at various times in our lives, and therefore we all stand to benefit.





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

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.

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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.





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