Reconciling Copyright Ownership Policies for Faculty-Authors in Distance Education

Reconciling Copyright Ownership Policies for Faculty-Authors in Distance Education

Johnson, Andrea L

I. INTRODUCTION

In an era when technology has transformed how higher education can be taught, distance education has become a viable alternative to traditional methods of instruction. As a result, faculty who develop innovative teaching materials for their classes must increasingly become aware of the copyright implications associated with use and ownership of their works. What was previously considered a non-issue for institutions is now a point of heated debate. The right to control and exploit the intellectual capital of what faculty do in the classroom is at stake.

In 1996, this author taught the first distance learning course at an American law school, teaching simultaneously at Cleveland-Marshall College of Law in Cleveland, Ohio and California Western School of Law in San Diego, California.1 As part of the course, students connected with experts at four different sites in California and Ohio via audio and videoconferencing.2 The course required students to have Internet access for E-mail, a list-serv for posting assignments, and an electronic workbook in lieu of a textbook. The biggest surprise and success was the effectiveness of videoconferencing. The biggest disappointment and subsequent challenge was using the electronic casebook, which was neither user friendly nor was it effectively integrated into the classroom experience.3 The electronic casebook simply became a repository for reading assignments.4

The solution was to develop a web-based platform for authoring electronic materials called “Cyber Workbooks.” The Cyber Workbooks’ platform consists of an authoring tool with wizards for creating modules that test different skills and learning outcomes; a student website to access modules; and an administrative site that allows faculty to assess learning outcomes, generate reports, and tailor the modules to their particular teaching style. Since then, modules have been developed for different faculty to supplement class lectures and course materials. In addition to buying a textbook, students pay a license fee to get a user name and password that will enable them to access the assigned module.

My law school supported my efforts by paying for me to attend and speak at conferences on distance learning, and by giving me “credit” for conducting research in this area that would satisfy my contractual obligations to the school. However, my institution did not assert any interests, rights, or claims to Cyber Workbooks, and did not participate in my negotiations with other institutions. I did, however, grant to my law school and the faculty a non-exclusive, royalty-free, license to use Cyber Workbooks to develop course materials.5 Modules created for other faculty or institutions were either subject to a joint copyright or were construed as “works for hire” under which I was a paid a fee for my services, and assigned my rights to the institution.

The administration’s acquiescence to sole copyright ownership was due, in part, to the fact that much of the development of Cyber Workbooks was financed using personal funds,6 supplemented incidentally with research grants,7 federal work study for research assistants, and later with stipends from institutions that wanted me to develop content material for their faculty. Under many copyright policies adopted today, it is unclear whether the asserted copyright would go unchallenged by the institution.

This experience reflects how many institutions, until recently, dealt with copyright issues related to faculty-authored electronic content. Prior to 1998, few, if any, law schools had copyright policies governing electronic content developed by professors. The absence of copyright policies was due, in part, because institutions did not perceive a viable commercial market for such materials in legal academia.8 As a result, there was little threat that revenue would be diverted from the institution.9 Institutions that had copyright policies generally applied these policies to disciplines other than law, such as science and engineering where there is heavily reliance on third-party sponsorship of research and development.

In 1998 law schools started to take notice of copyright issues in distance education after Concord University, the first on-line law school, accepted its initial class of eighty students.10 Concord offered eleven videotaped class lectures on civil procedure by Harvard Law School’s Professor Arthur Miller.11 Harvard’s Dean Robert Clark challenged the action, claiming that Professor Miller had violated the school’s conflict of interest policy that prohibits faculty from teaching at other institutions without permission. Professor Miller disputed the claim, charging that he was not “teaching” since he does not meet, interact, or exchange e-mails with any of the students.12 In response, the law school revised its faculty manual, which now requires permission from the dean before serving as a teacher, researcher, or salaried consultant to an Internet-based “university.”13

Since that time, other schools have begun to explore copyright policies for course content and lectures, particularly when used in distance education. Of twenty-five institutions of higher learning surveyed, fifteen of them currently have copyright policies related to ownership of faculty-authored works; while ten only address use of copyrighted materials under the “fair use” doctrine. Many institutions now see a potential market to capture some of the $225 billion market for distance education.14 Moreover, the government has aggressively promoted distance education by authorizing financial aid for students and funding to develop distance learning programs.15 While most of these programs are in areas other than law, it is just a matter of time before more law schools begin offering such courses.16 With institutions now seeing a potential financial windfall to be made in distance education,17 many institutions have adopted copyright policies under which home institutions have asserted more rights to what the professor does in his or her classroom, particularly when the lecture or course materials are put in an electronic medium.18

This article will examine the copyright policies of fifteen colleges and universities that have posted copyright ownership policies.19 The article offers a framework for faculty-authors who seek greater parity in ownership for their lecture and course materials when they are placed in digital form. It will focus on copyright ownership at the time the work is created or sought to be used commercially. It will not address permissive use of copyrighted course materials under the “fair use” doctrine.20

The next section will identify the basic components of a distance learning course that may be copyrightable. The third section will discuss the standard copyright policy and four general exceptions to author ownership adopted by these institutions: 1) works made for hire; 2) sponsored research projects; 3) institutional works; and 4) substantial use of institutional resources. The fourth section will examine misconceptions faculty often make about the value of their intellectual capital, and propose some win-win solutions that will allow both faculty and institution to benefit from the professor’s work product.

II. COPYRIGHTABILITY OF A DISTANCE LEARNING COURSE

There are two components to any course, regardless of how it is delivered: 1) the course materials; and 2) the classroom instruction. The specific tools employed by faculty will vary, depending upon the individual’s teaching pedagogy and style; their technical acumen, and the desirable learning outcomes and assessment.

In the traditional course, course materials include the textbook, hornbooks, and text and electronic study aids such as Computer Assisted Legal Instruction (CALI) lessons and Cyber Workbooks. The classroom component includes the professor’s lecture and discussion, and a variety of teaching aids such as black or white boards, overheads and PowerPoint presentations; videotapes and other multimedia devices.

Distance education employs many of the same tools used in the traditional course; however, there is greater reliance on technology. The Register of Copyrights defines “distance education” as “a form of education in which students are separated from their instructors by time and/or space.”21 This definition is very broad, and includes a broad range of instruction; from traditional correspondence courses to synchronous instruction where professors use audio or videoconferencing to interact with students.

A. Components of a Distance Learning Course

Distance education uses technology to capture, deliver the content, and facilitate interaction between faculty and students. Features of a distance learning program can include e-mail; on-line libraries; links to other websites; bulletin boards; chat rooms, list-servs; streaming audio and video; video and audio conferencing; automated examination and evaluation software; and search engines.22

To understand who owns what in distance education, it is important to distinguish between courseware and course content. “Courseware” is defined as a set of tools and technologies used to present course content, which is independent of the course content itself.23 Courseware focuses on the delivery tools for presenting the material, e.g., text, video or audiotape; audio or videoconferencing; websites;24 and other multimedia, such as CD-Rom or DVD. The courseware for the Cyber Workbook platform, for example, is the authoring software, and the presentation and functioning software for the websites.

Copyright issues related to courseware are distinctive because the professor is usually not creating the work alone. Instead, the creative efforts of other persons are involved, such as programmers, and graphic and instructional designers. This means that there could be multiple persons who could claim to be an author or creator. In addition, it also means that more resources are spent developing the courseware. Persons, or more likely institutions who finance the development of the courseware, may also have an ownership claim. This makes identifying the “copyright owner” of courseware, much more complicated.

“Course content” is the intellectual content of the course as it is taught at the university.25 Course content includes a professor’s class lecture and extemporaneous comments, handouts, overheads, and PowerPoint presentations. Content would also include the substantive modules developed using the Cyber Workbook courseware. Course content is often developed primarily or exclusively by the professor. At issue for faculty-authors is whether courseware and content should be a “work-for-hire” under the Copyright Act of 1976 (“Act”),26 which would vest ownership in the institution, rather than the author.

B. Basic Copyright Protections

In determining the nature and scope of copyright protection in distance education, the material or work first must be copyrightable. The Copyright Act of 1976 protects “any original work that is fixed and reduced to some tangible medium.”27 The definition of “works” has been extended to include electronic material such as courseware and course content.28 This means that courseware and course content are considered intellectual property that is copyrightable.29 Thus, copyright protection extends to textbooks, notes, overheads, audio and videotapes, and any software-generated materials. It would also include the professor’s lecture if reduced to tangible form, such as a videotape or audio broadcast of the course sessions.30

Copyright protects the expression of the work, giving the author the exclusive power to: 1) copy or reproduce the work; 2) create derivatives or adaptations; 3) sell or transfer the rights; 4) publicly perform the work; and 5) publicly display the work.31 There is nothing special required to obtain common law copyright protection, which attaches once the work is reduced to a tangible form. Copyright protection lasts for the life of the author, plus seventy years.32 Works made for hire have copyright protection for ninety-five years from publication or one hundred-twenty years from creation, whichever is less.33

There are three requirements that will formalize copyright protection, which entitles the holder to additional benefits. First, the author should provide notice by affixing a copyright notice, including the word or symbol, “©”, conspicuously on the work, along with the year of publication.34 Second, the author must register their copyright by filing the appropriate form and paying a fee.35 Registering the copyright simply establishes prima fade evidence of the assertions made on the registration form, which can be used in prosecuting copyright infringement and allows the claimant to receive statutory damages.36 Finally, the copyright holder must submit two copies of the work to the Library of Congress.37

The law governing ownership of on-line courses is “murky and untested.”38 Who owns the copyright will vary depending on a number of factors that include who the author is and the circumstances under which the work is created. Under the Copyright Act of 1976 the creator or the author of the work is considered the owner of the copyright, subject to certain exceptions, such as “works for hire” or “works specially ordered or commissioned.”39

The Copyright Act is silent regarding ownership of on-line courses. Moreover, recent amendments40 and reports on distance education do not address ownership issues.41 As a result, copyright ownership of distance learning courseware and content is determined by institution policy, contractual negotiation and common law copyright principles.

III. COPYRIGHT POLICIES AND EXCEPTIONS

The copyright policies of all fifteen institutions surveyed reflect the long standing tradition in academia to recognize the independence and relative autonomy of faculty in teaching and research.42 The tenor and flavor of some institutional policies reflect a mutual cooperation between institution and creator in developing works, sharing in any “royalties” derived from commercialization of such works, and a “codification of the tradition.”43 Other institutions are more conservative in their language, acknowledging that the Copyright Act of 1976 grants them rights in faculty work,44 but disclaiming such rights subject to certain exceptions, citing the traditional practice to the contrary.45 Such institutions will often use terminology such as “grants,” “reservation,” or “retention of rights.” The result is relative consistency in the effect of institutions’ copyright policies, without any clear resolution of the legal basis for such rights.

A. Standard Copyright Policy

The standard copyright policy at the institutions surveyed allow faculty members, librarians, and students to own the copyright to traditional works such as books, articles and other scholarly writings that are created for educational purposes.46 Materials printed electronically, computer assisted materials, and multimedia materials are treated the same as textbooks and articles in most cases.47 Such works must be created under the individual’s own initiative as part of their normal scholarly, professional, or academic responsibilities.48 Moreover, institution policies require that the work be created without using substantial institution resources or resources that are not usually made available to other faculty.49

“Usual” institution resources include computer facilities, ordinary library services, secretarial, office, telephone and administrative support.50 Resources not available at the law school but available in other departments would not be included. For example, ordinary use of the law school’s computer Information Technology (IT) personnel may be considered usual resources; however, use of IT personnel from a university’s computer science department or communication department would not.51

The University of Michigan defines faculty-owned material using usual resources to include lecture notes, transparencies, case examples, textbooks, interactive textbooks, CD-Roms, software, articles and books, regardless of the media.52 For most institutions, the right to commercialize the work is the only restriction on the faculty-author’s use, so use for non-commercial educational purposes is retained by the facultyauthor or specifically licensed by the university.” Commercialization of faculty work is usually subject to conflict of interest policies that such use is not inconsistent or competitive with the institutions interests, and requires prior approval from appropriate institution personnel.54 Institutions such as Northern Texas retain a non-exclusive commercial license to market courses outside of the institution.55

This standard copyright policy has been endorsed by the American Association of University Professors (AAUP) and relies upon the “prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiatives for traditional academic purposes.”56 Moreover, even though the faculty retains ownership of ordinary course content, such as tests, syllabi, and assignments, the AAUP recommends that the institution be granted a non-exclusive license to use such materials for internal instruction, educational and administrative purposes.57 Institutions such as the University of Michigan and University of North Texas specifically reserve such a right.58

Where commercial use is contemplated, the AAUP recommends that there be some royalty-sharing arrangement between the faculty-author and institution, in the same way patented course material or content are handled.59 Most of the institutions that address commercialization of copyrighted work allow some split of the net proceeds with the faculty-author.60 The amount or percentage allocation of royalties is either set in advance61 or at the discretion of the institution,62 usually in consultation with the faculty-author.63

Although specific classifications of works included may vary, there are four general exceptions to the standard copyright policy that have been adopted by institutions:64 1) “work-for-hire;” 2) institutional and joint works; 3) works involving a substantial use of institutional resources; and 4) sponsored works.65 The “works for hire” exception is perhaps the most controversial because it subsumes most of the other exceptions, and its application in higher education is inconsistent with historical practices at most institutions. Each of these exceptions will be discussed individually.

B. Works Made For Hire

The Copyright Act of 1976 provides that works made for hire are works prepared by an employee within the scope of his or her employment or specifically commissioned.66 Under the Act, in the absence of an agreement to the contrary, works made for hire are owned by the employer; not the employee-author.67 There are several factors that a court must weigh to determine if this exception applies: 1) the employer’s right to control the manner and means by which the product is accomplished; 2) the skill required; 3) the source of the instrumentalities; and 4) the tax treatment of the employee; and 5) whether the employer has the right to assign additional projects to the employee.68 No one factor is determinative.69

Under a strict application of these criteria, most faculty would be considered “employees” of their institutions. Faculty are hired to teach courses that may be assigned by the institution, are required generally to conduct research and publish findings in order to obtain tenure, receive employee benefits, and are subject to income tax withholding.70 Moreover, most faculty who want to create websites for their course usually use their library’s or institution’s computers to conduct research to create the content, space on the server to store the work, Internet connections to make the work accessible to students, and depending upon their technical skills, rely upon institutional staff to assist them.71

However, a strict application of the criteria runs contrary to longstanding traditions at law schools not to claim rights to course content.72 Institutions generally do not interfere with faculty autonomy and independence in how a course is taught, what materials are used, or the subjects of scholarly research and writing. For this reason, some scholars argue that there is, or should be, a “teacher’s exception” in academia.73 This was recognized in case law prior to the Copyright Act of 1976,74 but has not been specifically addressed or clarified since then.75 As a result, faculty must look to their institution’s copyright policy, conflict of interest and conflict of commitment policies,76 and/or negotiate a separate agreement to clarify who owns what. The institution and faculty-author always have the option to waive and/or assign their rights.77

Most institutions surveyed consider administrative works created by faculty, staff, or students within the scope of, or as a condition to, their employment, or claim that such works are the product of assigned duties of employment and, therefore, are works made for hire.78 Clear examples would include faculty committee reports, authoring a catalogue, or works for promotional purposes on behalf of the institution.79 Less clear is the application of this exception to faculty lectures, notes, and examinations. This is where institutions distinguish between courseware and course content.

Many institutions claim ownership of courseware created by staff, postdoctoral persons, or student employees in the course of their employment.80 Content created by faculty-authors as part of an assigned task may require an additional written agreement assigning their rights and acknowledging the right of the institution to distinguish the work from traditional scholarly work.81 Institutions seem willing to assert copyright ownership in courseware where non-faculty staff or consultants are used, particularly if it involves software that also may be patented; but may recognize faculty ownership of course content.82 However, these institutions will usually reserve or claim a perpetual, non-exclusive license to use the course content in a distance learning program.83

C. Institutional Works

Institutions also claim ownership in “institutional works” and in some joint or collaborative works.84 Institutional works are defined as works supported by an allocation of funds or at the specific direction of the institution.85 Examples of institutional works include journals, periodicals, and films published by a department within an institution. 86

Columbia University’s copyright policy defines institutional works to also include “works produced as a collaborative effort under a school or department, or works improved upon or developed over a period of time by a series of persons of the institution where authorship cannot be attributed.”87 By contrast, case Western Reserve University’s telecourses, which are used in distance learning and created jointly by faculty and others whose contributions are considered works for hire, are jointly owned by the faculty and the Board of Regents.88

Stanford University takes the position that courses taught and courseware developed at Stanford belong to the institution.89 However, some institutions distinguish between courseware and content. Columbia University and the University of Pennsylvania claim ownership rights in videotapes and recordings as courseware, even if the faculty has rights in the content.90 George Mason University attempts to reach a compromise by adopting the policy that videotapes of lectures for off-campus broadcast or via the university’s network are jointly owned by the faculty-author and the institution.91 Notwithstanding the institution’s copyright ownership policy, faculty-authors at many institutions are also subject to conflict of interest and conflict of commitment policies which limit use of courseware and content outside of the university.92

In some instances, restrictions are also imposed on use of the institution’s name, logo, or trademark.93 Other institutions, such as the University of Michigan, grant ownership of courseware to the creator without mention of conflicts of interest or conflicts of commitment.94 Additionally, the original creator has the right of “first refusal” in making any new versions of the work.95

Columbia University recognizes faculty ownership in course content, but restricts the faculty member’s right to unilaterally commercialize non-institutional works.96 Commercial use of courseware and content created or taught at the institution is subject to prior approval of the dean and agreement by the author. Faculty can make commercial use of noninstitutional courseware and content so long as the institution cannot assert an independent claim, e.g. substantial use of resources, and the name is not used.97

Columbia University also retains an irrevocable, non-exclusive right to use the courseware or content after the faculty departs from the University.98 Columbia University, Stanford University, and case Western Reserve University claim specific ownership in computer software created by non-faculty programmers, employees, or outside consultants for use by the university, and software that may be patentable.99 Such works are considered “institutional works” under the “works for hire” exception.100

D. Substantial Use of University Resources

Institutions also claim ownership of works that make substantial use of institution resources.101 When the institution contributes “substantial,” “significant,” or “unusual” resources for the creation of a work, the institution will claim ownership of the copyright or patent.102 This condition is met when faculty use facilities outside of the scope of their normal job responsibilities, use resources that are not ordinarily available to virtually all faculty members, and/or when the faculty receives compensation, release time, or some other consideration.103

For practical reasons, the faculty-author is usually aware in advance that the institution intends to claim ownership of the work. Some ownership policies require the author to transfer ownership to the institution as a condition of using their facilities.104 “Unusual,” “substantial” or “significant” institution resources include use of studios; audio, audiovisual, video, television, or broadcast systems; and computers that fall outside the scope of the faculty’s or library’s normal job responsibility.105

E. Sponsored Research Projects

Sponsored research projects are also excepted from the standard policy that the faculty-author owns the copyright.106 Sponsored works are defined to include research activities or projects performed by faculty, librarians, staff and students under sponsorship from a third party that is external to the institution and subject to a written agreement between the faculty-author, third party, and/or the institution.107

Sponsored research is distinguished from institutional works by the presence of third-party funding.108 The institution is usually not funding the research, but acts as a conduit or fiscal agent through which the funding is provided to the author. The third party can be anyone external to the institution, including any agency, government entity, private industry, person, or organization.109

Copyright ownership of sponsored works is governed by written agreement, and takes precedence over any existing institutional copyright policy.110 Where the applicable agreement is silent with respect to ownership, the institution will usually assert copyright ownership with some revenue-sharing arrangement with the faculty-author.111 Moreover, the institution generally retains the rights to commercially exploit the work.112 As with institutional works, most institutions require the author to expressly assign their rights in sponsored research to the institution. As a result, some institutions will consider a sponsored work as a work for hire where there is a written agreement that it be so treated.113

IV. PROTECTING THE FACULTY-AUTHOR’S INTELLECTUAL CAPITAL

Traditionally, when faculty decide to create courseware or content, they do so without any discussion with the institution, unless institutional resources are required. Issues of ownership, if they arise at all, only come up after the fact when the faculty-author or institution seeks to use the work outside of the institution or make it available commercially. Unfortunately, by that time faculty-authors may have lost their rights or any leverage to negotiate ownership or royalties. This happens because either the faculty-author has already used institutional resources, or the intended use of the work violates conflict of interest or conflict of commitment policies. As a result, it is important for faculty-authors to dialogue with the institution initially, when they plan to create a copyrightable work.

Some may view faculty collaborating with their institution on content development as “compromising” the author’s intellectual integrity. However, in many ways the role of the institution is likened to the editorial process with a publisher. For practical reasons, collaborating with their institution may be the only way the faculty-author will realize the “fruits” of their labor. To fully understand this concept first requires that certain misconceptions are dispelled about the commercial market for faculty works.

A. Misconceptions

Faculty-authors often operate under three misconceptions when attempting to assert copyright ownership or entitlement to royalties in their course materials. First, many faculty believe that their classroom lecture and course materials have inherent commercial value. Second, faculty assume that this value can be realized simply by packaging lecture or course materials in a digital form and selling them. Finally, faculty-authors believe that there is a windfall of money to be made by selling their lecture or course materials as part of a distance learning course.114 The conclusion reached is that faculty-authors need not work with their institutions. Unfortunately, this author’s experience and those of other faculty-authors reveal a very different story.115

Most faculty believe that their classroom lecture has some inherent commercial value, separate from the textbook, course materials, and class discussion. This author’s experience in distance learning reveal that most faculty lectures only have value to the students taking the course who have missed a lecture. The few exceptions are for professors such as Professor Arthur Miller, who have reached national or international recognition or expertise in an area.

Research on learning outcomes reveals that students learn in a variety of ways, including lecture, class discussion, and question and answers. Least effective is watching a “talking head” give a lecture.116 When developing a distance learning course, reliance on the visual presentation of the material, therefore, creates some challenges for the facultyauthor that generally require changes in the manner and style of instruction before a camera, and how the material is ultimately presented in courseware. For example, simply videotaping and showing a lecture will be less effective than inserting relevant PowerPoint slides, overheads or other visual aids into the videotape.

In most instances, only the institution or a publisher has the resources to absorb the additional work and cost of producing a distance learning course. Self-publishing for most faculty-authors has not been very successful, outside of use in their own classroom. Faculty who want to market their lectures inevitably end up dealing with the institution or a third party publisher to ensure that lectures and course materials are packaged and distributed properly.

The second fallacy as regards asserting copyright ownership is that faculty believe that simply packaging a set of lectures and course materials will result in a successful commercial distance learning course and a windfall in royalties. The reality has been the exact opposite. Most professors are disinclined to use, much less buy, commercial materials or lectures produced by other faculty.117 Faculty that do suggest outside reading focus on hornbooks or course materials that have a general coverage of a subject area, such as CALI lessons or Cyber Workbook modules. The cost of using copyrighted works can be prohibitive, particularly if courseware is used. This is because the fair use doctrine does not apply to electronic materials in the same way as copying copyrighted text, meaning that copyright releases and royalties must be paid to avoid infringement.118 The requirement to pay royalties for use of copyrighted materials has lead some institutions to restrict such use in distance learning courses.119

Commercial success in developing and marketing courseware and content has been risky for most publishers. Many publishers started publishing electronic content or e-Books and then stopped because they could not develop a profitable business model.120 Publishers found students were not interested in watching a lecture on a small video screen or reading page after page of text on a screen. As a result, unless there is some “value added” in the electronic materials published, it is unlikely that a publisher other than the institution would have any interest in faculty-authored works. Under these circumstances, faculty ownership of their material may amount to very little.

Many institutions are avoiding ownership issues in distance learning courses by publishing or producing the course materials as works for hire, assigning professors to create the work for additional compensation or release time.121 In these instances, without a separate agreement a faculty-author is subject to their institution’s copyright policy. Moreover, without specific permission from their institution, the faculty-author may have limited rights under most copyright polices to use even the content commercially.

Finally, the biggest misconception is that there is a windfall of money to be made in developing content and courseware for distance learning. Merrill Lynch projected the on-line market in higher education would grow from $1.2 billion to $7 billion by the end of 2003.122 However, online courses for law schools and many higher education programs represent only a de minimis amount of the overall market. Most of the growth will likely occur in corporate training.123 This means publishers that commercially sell on-line courses for law schools will likely focus on student aids or tutorials for continuing education, bar preparation programs, or dummied-down “how to” books and forms for nonlawyers.

Content for continuing education and bar preparation courses often focus on statutory and black letter law, and de-emphasize case law. Faculty that use a case law approach to teaching a subject, will find that their lecture and class notes have little use in designing a distance learning course in the subject area. As a result, the challenge for the facultyauthor will be creating content from their class and lecture notes that can be used for multiple purposes without losing the depth and coverage that may be desirable for use in the classroom. The institution can be a resource to assist the faculty-author in achieving this goal.

In evaluating the commercial potential of faculty-developed courseware, publishers are often more interested in presenting accurate material in the most efficient and cost effective way possible than in learning outcomes or assessment tools. Assessment tools such as quizzes and questions and answers, which are helpful in tutorials or reviews, have little value to a publisher where there is no grading and students need only show up at the course or order the materials in order to get credit. This means that both the content and the courseware for distance learning may have to be retooled for commercial use outside of the institution. Unless the faculty has the design and technical skills to create the courseware, or the money to hire someone to do it, the additional resources required from the institution would probably be sufficient to allow the institution or a third party to claim ownership rights in the product. At best, this means that the faculty-author will have joint ownership rights with the institution. The worst case would be that the institution would claim ownership as an institutional work.

B. Win-Win Solutions for Greater Parity

The faculty-author should collaborate with their institution in designing distance learning courses for commercial use. In fact, some institutions include as their mission to assist faculty in the commercialization of their work.124 Collaboration allows faculty-authors to focus on the content, and shifts the responsibility for design of the courseware to specialists that understand the commercial uses of the product.

This solution presumes that faculty are most concerned with editorial control over use of their content and ensuring they receive adequate compensation for their work. This author strongly believes that institutions are indispensable parties to the success of any commercial use of faculty-authored courseware or content. The following framework is offered to assist faculty-authors who wish to develop content or courseware for commercial use, but are novices in the planning and development process.

First, faculty-authors of a distance learning course should focus on the pedagogical goals of the course, and how these goals differ or complement the goals of their classroom instruction. Designing an effective distance learning course requires thought and planning on levels not generally required for in-class instruction. Understanding the differences and factoring them into the design process will increase the potential commercial value of the work. Also including a teacher’s manual is helpful to assist other faculty who want to use the materials.

Faculty-authors should look at existing examples of on-line courses to see what is possible, and consider how electronic teaching aids and approaches can add value to the course. Using video to reenact a crime scene rather than giving the facts in a lecture is one example of valueadded for an on-line course. If all goes well the faculty-author will transform the distance learning course from text and “talking heads” into a dynamic learning environment, and be compensated for his or her efforts.

Second, faculty-authors should design their content so that it is easily integrated into different courseware platforms. The more effective the course is in reaching specific pedagogical goals, the more adaptable it will be to other platforms. This is important because each “fixation” or derivative of the content is subject to independent copyright protection.125 While some adaptations may be subject to joint ownership with the institution, the faculty-author will likely continue to own the original content under most institutional copyright policies, and therefore exercise some editorial control over how their work is used.

Third, faculty-authors should not rely upon the institution’s copyright policy to establish ownership rights in their works. Faculty-authors should negotiate a separate written contractual arrangement with the institution to meet their goals and the needs of the project. This ensures a win-win solution that avoids the risk of litigation and the uncertainty about how a court would apply copyright law. Moreover, faculty should not acquiesce to a copyright policy that is adopted unilaterally by the administration. Not only does it adversely affect morale and incentives to be innovative, but also can lead to major confrontations and threatened lawsuits between faculty and the administration.126

Faculty-authors should approach designing on-line content and courseware as they would in writing a textbook. Find the publisher before creating the on-line content and courseware. Where the institution is going to claim ownership in the product, faculty-authors should always seek additional compensation, overload credit, and/or royalties for content and courseware, particularly if they make a substantial contribution to either.

Finally, as institutions begin to expand their IT departments to accommodate distance education, it may be necessary for faculty and institutions to reexamine what the institution defines as “usual” resources. Understand the distinctions between design of courseware and content. Remember that in distance learning courses content is not the only issue; the presentation and the visual effect of the content are also significant. If institutional resources are used to achieve the desired result, ownership interests should be allocated and compensated accordingly.

V. CONCLUSION

There are a number of reasons why institutions may not adequately value or compensate faculty for developing courseware or content, or teaching distance learning courses. Many distance learning courses are being taught as part of the regular faculty load. Why pay professors for their materials if they don’t have to pay them to teach the course? In addition, most administrators are unfamiliar with the dynamics and pedagogy of teaching a distance learning course, even though they may have a stated copyright policy governing ownership. There is an educational process in which faculty may have to engage their institutions.

The law is unsettled on ownership issues of content and courseware so an institution’s copyright ownership policy will prevail in the absence of an agreement to the contrary. Also, be mindful of conflict of interest policies. It is important that faculty-authors play an active role to understand how their courseware will be developed, and then negotiate an agreement that will compensate them for their effort. This author believes that there are opportunities for faculty-authors and institutions in developing courseware and content for distance learning. However, given the constraints and risks, those opportunities can best be realized if faculty-authors and institutions work as collaborative partners.

ANDREA L. JOHNSON*

* Andrea Johnson received her J.D. from Harvard Law School. She teaches at California Western School of Law and is the director of the Center for Intellectual Property and Telecommunications.

Copyright Jefferson Law Book Company Oct 2004

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