Distance Learning and Intellectual Property:
Ownership and Related Faculty Rights and Responsibilities
By Donna R. Euben, AAUP Counsel
According to a recent study by the U.S. Department of Education, nearly half of all U.S. colleges and universities offer classes taught outside a traditional classroom (by audio, video or over the Internet). See "Survey Finds 72% Rise in Number of Distance-Education Programs," The Chronicle of Higher Education (Jan. 7, 2000) at A57. By 1998, distance learning classes were offered by over 79 percent of public four-year universities. A total of 1.6 million students were enrolled in approximately 54,000 on-line courses nationwide. Not surprisingly, the greatest area of growth is in courses taught over the Internet. The data also revealed that public universities were getting involved in distance education at a much faster rate than private institutions, and that the largest colleges and universities were the most likely to offer such courses.
Distance education poses both opportunities and challenges. The opportunities include reaching out to those students who would not necessarily have access to college and university courses, such as parents with young children ("It is hard to be a single parent and be in school."), those in rural areas, individuals with disabilities, and those who work full-time. See, e.g., Jefferey R. Young, "Dispatches From Distance Education, Where Class is Always in Session," The Chronicle of Higher Education (Mar. 3, 2000).
Traditional notions of ownership, control and use of educational materials are being challenged by the revolution in communications technology. The authority and responsibilities of faculty members in this digital era with regard to how courses are developed, taught, and revised are in flux, and many existing institutional policies on these issues fail to address important questions raised in this changing environment. Accordingly, over the past several years the American Association of University Professors (AAUP) has studied these issues and developed policy guidance to focus on faculty rights and responsibilities. (For a list of relevant AAUP statements and reports, see the references at the end of this outline. AAUP statements on distance education and intellectual property are attached.)
The AAUP does not oppose the concept of distance education. Rather, the Association emphasizes the need to ensure the educational quality and integrity of such programs so as to be consistent with the goals and ideals of colleges and universities in the development and dissemination of knowledge.
I. Educational Decision-Making
Distance education raises many of the same issues as traditional courses with regard to academic governance. As recognized in the AAUP Statement on Online and Distance Education,
The governing board, administration, faculty, and students all have a continuing concern in determining the desirability and feasibility of utilizing new media as instruments of education. Institutional policies on distance education should define the responsibilities for each group in terms of the group's particular competence.
85 Academe: Bulletin of the American Association of University Professors 3:41, at 42 (May-June 1999) (hereinafter "Academe"). With regard to the role of faculty members in curriculum development in this context, the Statement notes that:
As with all other curricular matters, the faculty should have primary responsibility for determining the policies and practices of the institution in regard to distance education. The rules governing distance education and its technologies should be approved by vote of the faculty concerned or of a representative faculty body, officially adopted by the appropriate authority, and published and distributed to all concerned.
The applicable academic unit--usually a department or program--should determine the extent to which the new technologies of distance education will be utilized, and the form and manner of their use. These determinations should conform with institutional policies.
Id. Thus, when considering the development of distance education courses, it is important to be aware of the existing institutional procedures on curriculum approval.
For example, the collective bargaining agreement between Yuba College Faculty Association and the Yuba Community College District, Article 10.0 (Distance Learning), provides:
Other governance issues raised by distance education in which AAUP calls upon institutions to recognize and respect the faculty role in decision-making include the amount of credit awarded for such courses, rules regarding teaching loads and required faculty-student contact, and the allocation of necessary supporting resources (see section IV, infra).
II. Ownership and Control of Course Materials
The complexity and expense of the resources needed to provide distance education courses have raised questions about the appropriate distribution of authority and control among the administration, academic departments or units, and faculty members. See, e.g., Gail S. Chalmers, "Toward Shared Control of Distance Education," The Chronicle of Higher Education (Nov. 19, 1999) at B8 (discussing different ownership models).
A. Academic Freedom and the "Work for Hire" Doctrine
Traditionally, colleges and universities have not sought to assert copyright over course materials and other traditional scholarly works. See, e.g., Gorman, Robert A., "Intellectual Property: The Rights of Faculty as Creators and Users," 84 Academe 3:14 (May-June 1998); see also University-wide Task Force on Copyright: Report and Recommendations, University of California (Oct. 1999). Under the principle of academic freedom, faculty members generally have the right to develop and modify course materials within their fields of expertise, and to use pedagogical techniques they deem most appropriate for the subject matter. See "1940 Statement of Principles on Academic Freedom and Tenure," AAUP Policy Documents & Reports 3 (1995 ed.). As AAUP discusses in its policy statements, the "work made for hire" doctrine (see Copyright Act of 1976, 17 U.S.C. Sections 101 and 201)--under which an employer can assert ownership over materials prepared by its employees acting within the scope of their employment--is not an appropriate model for wholesale application to the preparation of scholarly and teaching materials because of the nature of academic work and academic freedom.
Few court decisions have been rendered on this subject, but some of the most prominent decisions of federal courts have followed traditional academic practice and found that faculty authors own copyright in their academic materials. See, e.g., Weinstein v. University of Illinois, 811 F.2d 1091, 1094 (7th Cir. 1987) (discussing the longstanding tradition that higher education faculty own the copyrights in their academic work, as stated in Nimmer's Copyright treatise and elsewhere); Hays v. Sony Corp. of America, 847 F.2d 412, 416 (7th Cir. 1988) (noting that although college faculty do academic writing as part of their employment responsibilities and use employer facilities and resources to do so, "[a] college or university does not supervise its faculty in the preparation of academic books or articles, and is poorly equipped to exploit their writings, whether through publication or otherwise").
B. Faculty Ownership and Institutional/CBA Policies
AAUP's Statement on Copyright provides that faculty members who create the intellectual property own it, unless an agreement between the faculty a member and administration provides otherwise. That statement states:
It has been 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 initiative for traditional academic purposes.
The AAUP-Wright State University contract, Section 27.2.3 provides:
Traditional faculty products of scholarly activity that have customarily been considered to be the restricted property of the author will be owned by the author regardless of the medium in which the work is embodied.
There are three limited and expressly defined set of circumstances in which the college or university can claim ownership of the copyright:
1. special works credited in circumstances that may properly be regarded as "made for hire"; the use of university resources, facilities or materials of the sort traditionally made available to faculty members does not transform a faculty work into "made for hire"; extra ordinary university resources must be used
2. negotiated contractual transfers; and
3. joint works, as defined in the Copyright Act, where the institution may be considered a co-author.
The current AAUP-Rider University contract provides the following:
The bargaining unit creators of intellectual property, in all its forms, shall be the owners of that property, except when a bargaining unit member and the University enter into a specific agreement to crease such intellectual property or the University provides "substantial or unusual funds, facilities or opportunities which the bargaining unit member would not ordinarily be entitled to have for any chosen project."
Article XXIX, 2.
At the University of Texas System, faculty members retain ownership of any Web courses they create. The University claims ownership, however, when parties agree beforehand that some is hired for the sole purpose of creating an on-line course.
At the University of Missouri at Columbia, faculty members own the on-line courses they crease. They also can control how the on-line courses are used, and may even leave with the course content if they move to another university. The institution does own the graphics and artwork that are developed by university staff for the on-line courses, unless the faculty member develops those features without assistance. Dan Carnevale & Jeffery R. Young, "Who Owns On-Line Courses? Colleges and Professors Start to Sort It Out," The Chronicle of Higher Education (Dec. 17, 1999).
At the same time, a collective bargaining agreement may allow for institutions to use works created by faculty members without charge for educational and administrative purposes within the institution. In addition, faculty members should be encouraged to include such uses in their agreements transferring copyright for such works to a publisher.
B. Contractual Ownership Arrangements
In many instances, colleges and universities have avoided confusion regarding ownership by entering contracts with faculty members in advance of the development of course materials for distance education. Under these circumstances, a faculty member agrees to develop particular materials for the institution, and the terms and conditions of those arrangements, including ownership and control rights, are specified in writing upfront.
In the absence of such contracts, institutions may find that their policies do not clearly address certain situations in which faculty members create and use course materials. Many institutional policies assert university ownership when "substantial university resources" are used, for example, but questions inevitably arise about the nature and extent of normal institutional support for day-to-day faculty work.
Arthur Miller, a prominent Harvard Law School professor, recently became embroiled in a dispute with Harvard after he supplied videotaped lectures for Concord University School of Law, an on-line institution, without Harvard's permission. See "Who Owns On-Line Courses? Colleges and Professors Start to Sort It Out," The Chronicle of Higher Education (December 17, 1999) at A45 (discussing a future in which faculty members might become free agents who would own their course materials and sell access to various on-line institutions). Professor Miller argued that he did not violate Harvard's policies because he did not teach at the virtual law school or interact with its students either in person or on-line. What about professors who publish books and articles, or give lectures off-campus on topics within their professional expertise? The Arthur Miller controversy raises these possible analogies for university policies and practices.
Some universities have negotiated contracts with other institutions so that their faculty members may offer on-line courses at these other institutions. Still other universities have reached agreements with for-profit corporations to market on-line courses. See, e.g., "For-Profit Venture to Market Distance-Education Courses Stirs Concern at Temple," The Chronicle of Higher Education (Dec. 17, 1999) at A46. In all of these situations, contracts can be used to sort out rights of ownership and control. In the rush to expand markets or earn profits, however, colleges and universities should take care not to lose sight of notions of academic freedom, shared governance, and educational quality.
III. Educational Quality and Integrity Issues
Distance education raises a host of educational quality and integrity issues that have yet to be answered in this rapidly changing environment. AAUP recommends that faculty members should be involved in the oversight of distance-education courses to the same extent as in other courses with regard to factors such as course development and approval, selection of qualified faculty to teach, pedagogical determinations about appropriate class size, and oversight of final course offerings by the appropriate faculty committee to ensure conformity with previously established traditions of course quality and relevance to programs. See "AAUP Statement on Distance Education," 85 Academe 3:41, at 42 (May-June 1999). For a helpful list of practical considerations for faculty, see "Teaching at an Internet Distance: The Pedagogy of Online Teaching and Learning: The Report of a 1998-1999 University of Illinois Faculty Seminar," <http://www.vpaa.uillinois.edu/tid/report/tid_report.html.> See also "Distance Education Quality Checklist," National Education Association (1999).
A. Academic Freedom in Course Content and Delivery
Distance education creates special concerns with academic freedom and educational quality to the extent that the creation, use, and revision of course materials may not necessarily be handled by the same faculty member(s)--or even by faculty members at all. In some for-profit institutions, for example, the individuals who create original course materials are not involved at all in the use of those materials and do not interact with students. Thus, their ideas are left in the hands of others to interpret and revise. The individuals who are responsible for the "delivery" of the course content may not have the same expertise or training as the creators. The institution might also ask for courses to be structured and packaged in very specific ways to meet its own needs, thus placing other constraints on traditional academic freedom in teaching.
AAUP's Committee on Accrediting of Colleges and Universities, which has been active in seeking to ensure that accrediting agencies maintain standards of academic quality and integrity in the face of increasing requests involving on-line courses, has noted that distance education can alter the very nature of higher education because of the change in the nature of faculty involvement:
The fundamental difficulty with institutions that rely heavily, or exclusively, on distance education is that they are characterized by a practice called 'unbundling.' In that practice, course materials are prepared by a 'content expert' and delivered by a 'faculty facilitator,' in a uniform manner, producing predictable and measurable 'outcomes' that fit uniform assessment tools. Such a process of turning education into modular units represents a basic change in an essential characteristic of higher education.
Perley, James & Tanguay, Denise Marie, "Accrediting On-Line Institutions Diminishes Higher Education," The Chronicle of Higher Education: Colloquy (Oct. 29, 1999), expressing concerns with regional accreditation of totally on-line institutions using traditional methods.
AAUP recommends the following:
The faculty member (or an appropriate faculty body) who teaches the course (or adopts a pre-existing course) for use in distance education shall exercise control over the future use, modification, and distribution of recorded instructional material and shall determine whether the material should be revised or withdrawn from use.
Moreover, additional compensation may be negotiated for faculty members involved in extensive revision and modifications of courses they develop.
The AAUP-Rider University collective bargaining agreement provides: "The faculty member will have the same responsibility for the selection and presentation of materials and points of view in a Distance Learning course as he/she would have in a traditional course." Art. XXXVI, 3.d. Furthermore, "[a]ll such courses must be approved by the department/program and by the appropriate APC. This review will occur even then the proposed Distance Learning course is a section of an already existing and approved course." Art. XXVI, 3.b.
The policy from the University of North Texas provides an example of how to address some of these concerns:
D. Revision Rights. Faculty members should normally retain the right to update, edit or otherwise revise electronically developed course materials that become out of date, or, in certain circumstances, should place a time limit upon the use of electronically developed course materials that are particularly time sensitive, regardless of who owns copyright in the electronically developed course materials. These rights and limitations may be negotiated in advance of the creation of the electronically developed course materials and may be reduced to writing. Absent a written agreement, each faculty member will have the right and moral obligation to revise work on an annual basis in order to maintain academic standards. . . .
University of North Texas, "Creation, Use, Ownership, Royalties, Revision and Distribution of Electronically Developed Course Materials," (Draft Policy Adopted by the Faculty Senate, 12/08/99).
B. Student-Faculty Interaction
Universities may be tempted to create mega-courses to make as much money as possible from them, especially in light of the substantial expenditures necessary to develop and provide on-line courses. The number of students is a critical factor, however, in determining how a course will be taught and what types of interaction will be most effective. If distance-education courses are expected to produce substantial interaction among students and faculty, the student-faculty ratio must be considered even if the technology makes it possible to reach a much larger number of students than a traditional course. See, e.g., University of Illinois faculty report, "Teaching at an Internet Distance,"<http://www.vpaa.uillinois.edu/tid/report/>.
Given the overall mission of colleges and universities, the need for some form of socialization and interaction for students may be critical to the success and viability of many distance-education programs. See, e.g., "An On-Line Student Enjoys Class Flexibility but Misses Social Contact," The Chronicle of Higher Education: Academe Today (Dec. 8, 1999). On the other hand, some proponents of distance education have noted that the lack of personal interaction may encourage shy, quiet students to participate more actively electronically than they would in person.
Finally, the fact that students can participate in distance-education courses at times and places that suit their own schedules may mean that some students will be more well-prepared than they would be otherwise. Yet some students may need direct, personal interaction with a faculty member and fellow students to motivate and inspire them. According to a recent article in The Chronicle of Higher Education,
No national statistics exist yet about how many students complete distance programs or courses, but anecdotal evidence and studies by individual institutions suggest that course-completion and program-retention rates are generally lower in distance-education courses than in their face-to-face counterparts. . . . [S]everal administrators concur that course-completion rates are often 10 to 20 percentage points higher in traditional courses than in distance offerings
."As Distance Education Comes of Age, the Challenge is Keeping the Students," The Chronicle of Higher Education: Academe Today (Feb. 7, 2000).
C. Grading and Evaluations
Distance education programs have begun to raise questions about how to grade students whom the faculty member has never met, how students are to evaluate faculty, and how to ensure that the students themselves (rather than surrogates, for example) are participating in the course, taking the examinations. Thus, distance-education programs must include safeguards to ensure that students are held to the same standards of academic honesty as students in traditional courses.
Students enrolled in distance-education courses should be held tot he same requirements of academic honesty as students enrolled in traditional courses. In addition, protections should be build into the collective bargaining agreement to ensure that students have the opportunity to evaluate faculty, and faculty should have protections to ensure that faculty members are evaluated fairly. In the end, "Faculty members participating in the distance-education program shall be evaluated in the same manner as all other faculty members in accordance with the appropriate provisions of the collective bargaining agreement or institutional policy." At the same time, that evaluation form should be modified to address issues relevant to distance-education courses. For example, a question that addresses technological difficulties should be included, but should not reflect positively or negatively on the faculty member's teaching because that is an institutional responsibility.
Technical difficulties can also hamper the ability of students to participate fully or to complete course requirements. For example, in the fall of 1999, more than half of the 1,900 students enrolled in an experimental on-line course at the University of Iowa received F's on their midterm report cards. Many of them had not even started the course, and some of the lessons were not even up on the course website. The course was taught by a single professor (with help from 20 undergraduate teaching assistants), making it very difficult for the faculty member to have a sense of each individual's circumstances. Although such problems already exist in large lecture courses, they are exacerbated by the nature of distance education and the lack of face-to-face contact.
IV. Institutional Support and Compensation
Significant resources are required to develop and maintain distance-education programs. Faculty members must give thought to how materials will be presented and how students will be evaluated, and must also become familiar with the technologies of instruction prior to delivery of distance-education courses. Accordingly, faculty members charged with these responsibilities may need significant release time from ordinary teaching duties while developing such courses. See AAUP "Report on Distance Education and Intellectual Property Issues," Academe (May-June 1999) . Once a course has been developed, a faculty member also needs to figure out how best to maintain contact with his or her students.
A. Faculty Workload/Teaching Responsibility
Faculty workload and salary policies should take these types of considerations into account. Anecdotal evidence "suggests that investment of faculty time involved in teaching a distance education course is substantially greater than that required for a comparable traditional course. The time spent on-line answering student inquiries is reported as being more than double the amount of time required in interacting with students in comparable traditional classes." AAUP, "Special Committee on Distance Education and Intellectual Property Issues: Sample Language for Institutional Policies and Contract Lineage" (Dec. 3, 1999).
In terms of enrollment, class size should be based on pedagogical considerations, and "[l]arge sections should be compensated by additional credit in load assignment in the same manner as traditional classes." Id. The AAUP-Rider University contract provides: "Enrollment maximums for Distance Learning Courses will be no greater than for the same or similar level courses offered by that department or program." Art. XXVI, 3.e.
The extra time required by faculty to prepare distance education courses should be additionally compensated either financially or the form of a credit toward load assignment.
Furthermore, faculty regular in-the-office hours for those teaching on-line courses may not be helpful to students; accordingly, faculty members may determine whether some of the expected office hours may be held on-line.
Moreover, that assignment of faculty to distance-education courses should be voluntary, not mandatory. The current AAUP-Rider University Contract provides: "No faculty member will be required to develop or teach a Distance Learning Course." Article XXVI, c.
Accordingly, distance-education offerings should not reduce on-campus offering to the point where a faculty member must teach distance-education courses to teach a full load.
As discussed above, these issues should be addressed in writing in collective bargaining agreement policies, faculty contracts and/or institutional policies before the commencement of such work.
B. Technical Assistance
To carry out their instructional responsibilities, faculty members will need technical training and support. As noted in the AAUP report, however,
The technical and administrative support units responsible for maintaining and operating the means of delivering distance-education courses and programs are usually separate from particular academic departments or units which offer those courses and programs.
Id. at 42. Accordingly, faculty members will need to be able to call upon these technical resources as needed throughout the duration of distance-education courses.
V. Use of Intellectual Property
Faculty members involved in distance-education courses are users as well as creators of intellectual property. Thus, complicated questions involving "fair use" of intellectual property arise in the distance-education context--particularly in light of the increased ease of gaining access to and reproducing information in a variety of formats using computers. Questions arise not just in the development and dissemination of materials for on-line teaching purposes, but also in the development of coursepacks and web pages. As Professor Robert Gorman has aptly summarized,
The statutory provisions of fair use are open-ended. They require the consideration, and the weighing, of a number of factors: the purpose of the copying, whether it is done for commercial or nonprofit purposes, the quantity copied, the nature of the copied material, and the adverse impact that copying may have on the market for the copyrighted work.
Gorman, Robert A., "Intellectual Property: The Rights of Faculty as Creators and Users," 84 Academe 3:14, at 17 (May-June 1998). Professor Gorman warns that the existing fair-use doctrine may not be applied in a manner that makes the boundaries clear for faculty members engaged in distance education:
[T]he very power that the new pedagogies have to bring education to geographically dispersed audiences may lead courts to apply the fair-use doctrine in an ungenerous manner; the larger the audience, after all, the fairer it might seem to allow the copyright owner to share in academic fees or at least to require that the instructor consult before embarking upon such new and potentially renumerative projects.
Id. at 17-18. Thus, institutions need to help faculty members understand their responsibilities as users of intellectual property when creating and disseminating course materials.
VI. Resolution of Disputes
In light of the rapidly changing legislative, policy, and technological environment, disputes about intellectual property rights and responsibilities on campus are inevitable. Accordingly, AAUP has recommended that colleges establish an Intellectual Property Committee--representing both faculty and administration--to play a role in both policy development and dispute resolution. See AAUP "Special Committee on Distance Education and Intellectual Property Issues: Suggestions and Guidelines" (Dec. 3, 1999), http://www.aaup.org (under "Distance Education & Intellectual Property Issues").
Some Helpful Resources from AAUP
For updated information on policies and reports from the American Association of University Professors (AAUP), see the AAUP website and click on "Issues." The Association has also recently established a Working Group on Distance Education to monitor and guide AAUP's response to developments in distance education, and an Intellectual Property Rights Strike Force to monitor developments regarding intellectual property rights and responsibilities. Additional information can be obtained by calling the national office at (202) 737-5900.
85 Academe: Bulletin of the American Association of University Professors 5 (Sep./Oct. 1999)
Special issue on Education Bytes: The Problems and the Promise of Technology, including several articles on distance education.
85 Academe 3 (May/June 1999)
Contains the "Report of Special Committee on Distance Education & Intellectual Property Issues," including the "Statement on Distance Education" and the "Statement on Copyright."
84 Academe 3 (May/June 1998)
Special issue on Technology & Intellectual Property: Who's in Control?
Contains "Report on Distance Learning" (by AAUP's Committee R on Government Relations), as well as "Report on Copyright Issues in Colleges and Universities" (by subcommittee of AAUP's Committee A on Academic Freedom and Tenure), and several articles on intellectual property issues.
83 Academe 4 (July/August 1997)
Contains the preliminary report on Academic Freedom and Electronic Communication (by subcommittee of AAUP's Committee A on Academic Freedom and Tenure).
82 Academe (May/June 1996)
Contains the preliminary report on The Use of Technology in College and University Instruction ( by subcommittee of AAUP's Committee C on College and University Teaching, Research, and Publication).