Faculty Ownership and Control of Digital Course Materials
by Glenda Morgan
Learning Technology Specialist, Office of Learning and Information Technology
University of Wisconsin System Administration
As more and more faculty become involved in integrating technology into their teaching and research, questions arise about who owns and who has the right to control the material instructors create. The use of digital teaching materials like websites, courseware, CD-ROMs, and illustrated presentations has subtly yet profoundly altered traditional practices in higher education. It has done this, and continues to do this, in a number of ways:
The concerns raised by increasing faculty use of digital technologies in teaching have been further stoked by the way the issue has frequently been handled at a range of institutions. One of the earliest places where this arose was York University in Canada, where, several years ago, faculty became concerned about university initiatives involving the creation of digital courses. Two issues caused faculty unhappiness, the first being corporate sponsorship. The second was ownership of course materials and what rights the institution could claim to use materials created by faculty after a faculty member had ceased to be associated with the course. The York episode drew a lot of attention to the issue, which was further spurred on by the debates around a widely circulated article by David Noble, "Digital diploma mills." This article posed some serious questions about the implications for faculty of new technological initiatives in teaching (Noble 1998a and 1998b). Some of Noble's assumptions and assertions have been challenged (for example, see Noble, Shneiderman, Herman, Agre & Denning 1998; McClure 1998; and Brown & Wack 1999). But the debates have continued to simmer as other institutions have made decisions that have either angered faculty or have sought to exercise a degree of control over digital course materials. A recent and controversial example occurred at Harvard where law professor Arthur Miller is currently engaged in a wrangle with the university over his right to provide materials for an online course over the summer at a different, competing institution.2
These are some of the key issues at stake. Now we may turn to how the law and university policy have sought to regulate and delimit faculty ownership and control of the intellectual property they create in the course of their teaching and research.
The teacher exception and work for hire
In general, copyright is considered to belong to the author or creator of a work.3 A work is covered by copyright from the moment it is placed within a fixed medium. Copyright can protect creative forms of expression; for example, books, articles, artworks, music, and software can be registered at the Copyright Office.4 Although this is no longer strictly necessary, it is generally recommended as it affords far greater protection for the copyright holder than not doing so. Copyright covers not only the right to reproduce a work, but also the rights to distribute it, make derivative works, and perform or display the work.
Traditionally, universities have not exerted ownership claims over the materials produced by faculty in the course of their teaching. With regard to materials produced by faculty in the course of research there has, in practice, been a fundamental dichotomy between policy regarding books, textbooks, and articles on the one hand -- the "textbook model" -- and patentable inventions on the other, which fall under the "patent model" (see the article by Dennis Thompson, 1999, for a discussion of the two models). Universities have tended to claim an interest in patents but not in lecture materials, textbooks, books, or articles.
The principal issue affecting who owns material created in an employment situation is whether or not the material can be considered a work for hire. Section 101 of the 1976 Copyright Act determines that work for hire must fall under one of two categories. It must be either:
Nevertheless, it is far from clear what materials produced in academia fall within the scope of employment. The general principal guiding decisions is the law of agency in which the most relevant factor seems to be the extent to which the manner and means of employment are controlled (Shores 1997). Other factors are also taken into consideration, for example:
These factors however constitute less a checklist than a balancing test. Not all of them need to be present in order for the courts to decide that an employer-employee relationship exists.
Although the relationship between universities and faculty fulfil many of these requirements, in general, because universities do not exert close control over the content and form of course materials or published research, such activity is generally considered not to be a work-for-hire arrangement. Case law under both the 1909 Copyright Act and the 1976 Copyright Act which superseded it largely supported this decision; universities had no ownership claims over the tangible products of university teaching and research that did not fall into the patent model.6 Distance education courses, on the other hand, have more frequently been commissioned by the university and governed by a work-for-hire agreement between the two parties.
University policies regarding faculty ownership
Given that the products of most non-patentable faculty teaching and research do not fall under work for hire, they tend to be covered by one of three instruments (or, more usually, a combination thereof):
Of these, the most common method of regulating ownership and control of faculty intellectual property is the second, general university policy. This is the route taken by the University of Wisconsin, where the GAPP 27 document regulates university claims over the products of university teaching and research. Many higher-education institutions seek to manage intellectual property matters through such general policies, for example the University of California, University of Illinois, and the University of Michigan.
The University of Wisconsin policy states:
"The UW System does not assert a property interest in materials which result from the authorís pursuit of traditional teaching, research, and scholarly activities. The creation of materials such as theses, scholarly articles, journal articles, research bulletins, monographs, and books occurs, in most circumstances, as an integral part of the authorís position as a UW System employee. In those cases where substantial institutional resources are provided to support the development of instructional materials, however, the UW System may assert ownership or other property interests that should be addressed through specific agreements with the authors and producers of the materials."
In this case, substantial is defined as including, for example, "released time from regularly assigned duties; direct investment by the university of funds or staff, or the purchase of special equipment for the project; use of multimedia production personnel and facilities; or extraordinary use of computing resources" (GAPP 27, footnote 3).
The consideration of the extent to which university resources have been used is one of the most common factors that institutions take into account when designing policies governing faculty ownership. However, other factors such as the commercial character of the work, the degree to which the work is scholarly rather than practical or utilitarian, the connection between the work and the faculty member's position and the desire to avoid disputes within the university community have also shaped policy (Shores 1997).
However, these factors are far from concrete, and in most cases it is still far from clear under what circumstances an institution might claim ownership. For example, although the use of university resources is a key issue, it is not always clear at what point an extensive investment has been made. Recently, in a bargaining agreement between faculty representatives and the State University of Pennsylvania System, the parties attempted to put a dollar amount on what counts as "substantial", measuring it as at least $40,000 per project (see the Association of Pennsylvania State College and University Faculty negotiations summary). Some have claimed that this is perhaps a little high, although again here it is unclear about how exactly this will be calculated. On the other hand, given the cost of the technology and instructional design services that go into creating a good online or technology-enhanced course, this amount, as those experienced in writing grants and proposals can attest, can be reached all too easily.
Another factor muddying university intellectual property policy and efforts to establish at what point institutions might assert an ownership claim on teaching and research materials is the fact that, in the patent model, faculty and researchers have an interest in giving the university partial or whole ownership of a product. The patent process is complicated, time-consuming, and often expensive; universities are able to offer a vital service in exchange for a later share in any revenue created. However, the copyright process, which would cover most teaching materials and technology-enhanced research, is far less cumbersome and complicated, so there is considerably less incentive for faculty to sign over ownership in exchange for administrative and legal support.
A number of different options have been suggested as a way for institutions and faculty to find the clarity and guidance that more general policies are unable to provide. It is generally advised that questions be raised early and settled by means of a written agreement between the faculty or staff member and the university well before a project is underway. Some other, more specific options that have been suggested include joint ownership or licensing of the material by the institution from the faculty member. These kinds of arrangements can, however, be difficult and complicated to arrange (for example, see the AAUP Statement on Copyright).
What these more practical solutions often miss, though, is the fact that much faculty concern arises not so much out of concerns about ownership and ability to reap the financial rewards flowing from the commercialization of courseware as from questions about control of their intellectual products. Perhaps it is just too early on, but thus far there are not huge financial rewards to be reaped from the commercialization of courseware. However, faculty do have concerns about the implications for their academic freedom, the discretion they have in teaching and research and their mobility as scholars if universities were to assert a strong claim on the material artifacts of their teaching (for example, Maloney 1999). These are concerns that are not frequently addressed by university policies or by an approach which stresses ownership in a financial or monetary sense.
Scholarly journals and faculty ownership
A final factor which has not yet played a large role in most discussions of faculty ownership and control of intellectual property, but which may come to be an issue in the future, is the rapidly increasing cost of scholarly journals (see the Pew Higher Education Roundtable Discussion on Managing Intellectual Property). There is a close relationship between the two issues. One of the indirect consequences of the "textbook model" of faculty copyright ownership is that faculty essentially sign over their copyright in articles to publishers in exchange for publication in academic journals. Universities in turn must pay increasing amounts of money to publishers for subscriptions to journals and for the right to reproduce articles even though they have underwritten at least part of the research and writing costs of the articles. As university libraries become increasingly pressed to keep up subscriptions of journals, pressure might be put on universities to devise some way to retain faculty intellectual property so that they can be in a stronger negotiating position vis-a-vis journal publishers.
Certainly the next few years will be crucial, as university research and curricula become more and more technology-intensive and competing claims of ownership and control have to be assessed and balanced.
1) Institutions where such debates have occurred include the University of California at Los Angeles, Princeton, and Athabasca University (Guernsey & Young, 1998).
2) See the article in the Chronicle of Higher Education, "A professor's lectures for online law school become an issue at Harvard" (http://chronicle.com/free/99/11/99112401t.htm).
3) According to Section 201 of the 1976 Copyright Act, the authors of a joint work are co-owners of the copyright in the work.
4) Forms and instructions can be obtained from the Copyright Office's website at http://lcweb.loc.gov/copyright/
5) Part of "a contribution to a collective work, as part of a motion picture or other audio visual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as an answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."
6) For example, Weinstein v. University of Illinois, 811 F.2d 1091 (7th Cir. 1987) and Hays v. Sony Corporation of America, 847 F.2d 412 (7th Cir. 1988), Williams v. Weisser, 273 Cal. App. 2d 726 (1969).
Note: Views expressed in this article are those of the author, Glenda Morgan, and not necessarily those of University of Wisconsin System Administration.
REFERENCES AND RESOURCES
I. Context for the Debate on Faculty Ownership and Control
Brown, Gary, & Wack, Mary (1999). Digital diploma mills
or Socratic gymnasium? The future of the university. The Technology Source,
Maloney, Wendi A. (1999). Brick-and-mortar campuses go
online. Academe, September/October 1999.
McClure, Polley Ann (1998). The future of higher learning:
digital diploma mills or educational enhancement. Virginia.edu, 2(2).
Noble, David (1998a). Digital diploma mills: the automation
of higher education. First Monday, 3(1).
Noble, David (1998b). Digital diploma mills, part
II: The coming battle over online instruction.
Noble, David, Shneiderman, Ben, Herman, Richard, Agre,
Phil, & Denning, Peter J. (1998). Technology in education: the fight for
the future. Educom Review, 33(3).
The Pew Higher Education Roundtable Discussion, Managing
II. General Overviews
Burk, Dan L. (1997). Ownership of electronic course materials
in higher education. Cause/Effect, 20(3).
Consortium for Educational Technology for University Systems
[CETUS] (1997). Ownership of new works at the university: Unbundling of rights
and the pursuit of higher learning.
Guernsey, Lisa, & Young, Jeffrey (1998). Professors
and universities anticipate disputes over the earnings from distance learning.
The Chronicle of Higher Education.
Jackson, Ronald D. (1998). Who owns copyright? Demystifying
copyright in employment situations.
Shores, Clark (1997). Ownership of faculty works and university
policy. ARL Newsletter.
Thompson, Dennis P. (1999). Intellectual property meets
information technology. Educom Review, 34(2).
III. Policies Relating to Faculty Ownership and Control
AAUP Statement on Copyright
Association of Pennsylvania State College and University Faculty,
University of Wisconsin Copyrightable Instruction Materials
Ownership, Use and Control (GAPP 27)
University of California: Universitywide Task Force on
University of Illinois, Report on Courseware Development
University of Michigan, Ownership of Patents, Copyrights,
Computer Software, and Other Property Rights
CopyOwn, Collection of University Intellectual Property Policies