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 Copyright and Intellectual Property Issues 

Questions for consideration when negotiating contract language on intellectual property:

1. What is intellectual property?
2. Who owns the intellectual property?
3. Who owns the course?
4. Who owns the syllabus?
5. Who owns the course materials?
6. Who may use the intellectual property
7. How are any funds to be distributed?
8. What compensation should course developer receive if other instructors want to use the course?
9. How are emerging issues and disputes resolved?

These questions come from the AAUP and the AFT.

United States Copyright Office

Web address:

"Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works such as poetry, novels, songs, computer software and architecture."

"Your work is under copyright protection the moment is created and fixed in a tangible from so that it is perceptible either directly or with the aid of a machine or device."

You do not have to register in order to be protected. "Copyright exits from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of U.S. work."

Work for hire definition: "Although the general rule is that a person who creates the work is the author, there is an exception to that principle; the exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer or the commissioning party is considered to be the author."

According to the AAUP Statement on Copyright, "Although traditional academic work that is copyrightable-such as lecture notes and courseware, books and articles-cannot normally be treated as works made for hires, some works created by college or university faculty and staff members do properly fall within that category, allowing the institution to claim copyright ownership. Works created as a specific requirement of the employment or as an assigned institutional duty that may, for example, be included in a written job description or an employment agreement, may be fairly deemed works made for hire. Even absent such prior written specification, ownership will vest with the college or university in those cases in which it provides the specific authorization or supervision for the preparation of the work. Examples are reports prepared by a dean or by the chair or members of a faculty committee, or college promotional brochures prepared by a director of admissions. Some institutions treat course examinations as part of the faculty member's customary instructional materials, with copyright thus owned by the individual."

AFT Taskforce on Technology

They urge "unions to reach understandings with management about ownership of copyrightable materials. Except when the institution has assigned and supervised the work and provided specific resources to support it, the creators of copyrightable material should have legal protection and benefit for their labor."

Distance Learning Issues and the CBA

According to the AAUP, the following issues should be addressed in contract language:

1. General Definition of Distance Learning
2. Academic Freedom and Distance Learning
3. Working Conditions: Control of Curriculum, Staffing/Scheduling
4. Workload and Compensation
5. Faculty Support and Training
6. Technical Support
7. Intellectual Property

AFT On Distance Learning Issues

Locals must consider the following:

1. Assess costs and benefits of major technical purchases
2. Provide access and training in new technologies
3. Maintain educational quality
4. Control workload, compensation, and staff levels
5. Protect intellectual proprietary rights

AFT's Distance Education: Guidelines for Good Practice

Major Issues of Faculty Concern in Distance Learning:

1. Academic Control Issues: approve DL courses; establish class size; maintain curriculum standards.
2. Faculty Support Issues: need adequate technical support; must receive training; use successful DL instructors to recruit new ones.
3. Student Support Issues: need access to technical support; need one-day session to show them how to use DL course packages; online services: advising, tutoring, faculty office hours
4. Faculty Incentive Issues:

a. Direct Compensation for Development and Updating of Courses
b. Indirect Compensation in royalties
c. Release Time
d. Overload Pay
e. Computer equipment and software purchased
f. Home ISP cost covered
g. Additional funding for Travel and Conferences Fees 

Intellectual Property Issues

Source: Carol Twigg "Pew Learning and Technology Program" - Findings from a February 2000 symposium of 14 higher education leaders on the topic of "Who Owns Online Courses and Course Materials?"

Summary of Major Findings:

1. "An institution must have a clear statement of its policy and mechanism to ensure that the issue of ownership is addressed as early as possible in the development process."

2. Specific legal cases regarding ownership:

a. Miller Case - Faculty own rights to online instructional materials and can sell access to various colleges (Professors as Free Agents).
b. Case - Institutions make business arrangements with external organization, third party. Content going to external organization as institution's property
c. Case Net - Univ of Va selling delivering courses to other colleges; faculty run business from office

3. Most frequent scenario: Online courses developed by faculty with support from IT. Faculty is paid to create and to teach the course. College claims ownership; however, never laid claim to original materials prepared by faculty for traditional course use.

4. Possible scenarios:

a. faculty own course materials but not the course
b. faculty own course materials and the course
c. institutions own courses but not course materials
d. institutions own courses and course materials.

5. Definition of Course Materials: "fixed expression of ideas and resources that are used as the basis of the course"-these are instantly subject to copyright protection. These materials include ones that explain course content; illustrate course concepts; illuminate certain points; achieve course goals.

6. Definition of Course: "comprehensive set of materials that has been developed and combined in such a way as to substantiate a semester-long program of study."

7. Symposium concluded that courses include 5 components:

a. content
b. course materials
c. planned program of study: structure and goals
d. planned and spontaneous interaction
e. institution offers it

8. "The dispute over intellectual property is symptomatic of a larger problem-the redefinition of teaching mission and objectives of our higher ed institutions."

9. THE LAW- is indeterminate about ownership of course and course materials.

a. Copyright exists the moment a work is fixed; registration is not required.
b. Copyright Act of 1976 and Digital Millennium Copyright Act
c. US Code Title 17, sec. 107 - ownership rights
d. Fair Use policy - Generally lets you use portions of copyrighted materials in face-to-face teaching, personal discussion, research, and news reporting.

10. Three basic approaches to Intellectual Property:

a. Institutions assert ownership over copyrightable works of faculty citing "agency" principle of works made for hire.
b. Faculty continues to assert ownership.
c. Ownership via contract.

"Faculty who are well compensated and able to share in commercial success of their work will be motivated to create."

11.  Conclusion of the Symposium: "Default faculty position for all institutions should be faculty member owns course materials that he or she created. . . .There needs also to then be 'trigger mechanisms,' specific situations that would trigger the application of a second policy, ie. course materials commercialized whereby the institution should get some royalties."

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