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Pandemic Resources: FAQs on Remote Teaching and Copyright

Following are answers to questions we've received about remote teaching during the pandemic.

Do I as a faculty member own or control my  work?
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. These works include class notes and syllabi; books and articles; works of fiction and nonfiction; poems and dramatic works; musical and choreographic works; and pictorial, graphic, and sculptural works. However, the institution may have a license for certain uses. There can also be different policies, particularly for non-tenure-track faculty or adjuncts, and for distance education. Also, there can be exceptions to faculty ownership where there has been a “substantial use of university resources.” Finally, some universities have defied traditional academic practice and have claimed ownership of faculty-produced work. For general information on faculty copyright ownership, see http://www.aaup.org/issues/copyright-IP.

How can I find out what my ownership or other rights are to my work product?
The federal Copyright Act of 1976 establishes the legal framework for copyright. Copyright ownership and licensing of works created by faculty are generally governed by university policies, handbooks, and collective bargaining agreements, as well as hire letters, and individual assignments of work. The AAUP also has several policies addressing faculty copyright, which may have been adopted or referenced in institutional policies:

Are there different copyright rules for online teaching or distance education?
Particularly in institutions that engage in distinct “online” or “distance education” programs, different policies and therefore ownership rights may exist for work products in these courses. However, there is no usual status, and the policies are very institution-dependent. The policies on online or distance ed programs should be clear on when they apply, as compared to college or university policies applying to traditional academic work. Further, the delivery of traditional teaching via the internet should not alone result in the application of “online” or “distance education” policies, and traditional copyright policies should apply. The AAUP has a statement, sample policies and other resources addressing copyright in online and distance education.

Does the move to remote teaching impact the ownership of copyrighted work?
The delivery of traditional teaching via the internet should not alone result a change in copyright ownership. The best protection for faculty copyright is generally to consider the faculty as performing traditional academic work done remotely. Faculty should be clear that they are not moving to formal “online teaching” or “distance education” and that there is not a “substantial use of university resources.” Faculty should be careful to not agree that institutional “online teaching” or “distance education” policies apply, unless they are beneficial for the faculty.

Do I need to worry about online platforms (such as Zoom) or learning management systems (LMS) taking my copyrighted work?
Generally the terms of service of online platforms like Zoom should not affect ownership of copyright. These platforms typically  have policies that grant them licensing, but not ownership, rights related to the delivery of the content. This is often a necessary provision to allow the platforms to retain or share copyrighted materials with approved users (like students).

For LMS platforms, the normal terms of service would generally not transfer faculty copyright ownership to the LMS. However, faculty may want to ensure that the college or university does not seek to claim copyright ownership as part of their agreement with the LMS or through policies related to use of the LMS.

Does the ADA require recordings of online classes?
Yes, but only in very limited circumstances. Under the Americans With Disabilities Act & Rehabilitation Act of 1973, faculty may be required to provide recordings to, or permit recordings by, students with disabilities as a reasonable accommodation. However, an individual student must first request an accommodation. The US Department of Education explains, “[I]n postsecondary schools, the students themselves must identify the need for an auxiliary aid and give adequate notice of the need.”  Since students must first request the accommodation before a reasonable accommodation is required, the need to provide reasonable accommodations should not be used as universal justification to provide recordings to all students.

Providing class recordings as reasonable accommodation does not change copyright ownership. Faculty still control the use of recordings outside of the reasonable accommodation required, and can place restrictions on use of class recordings. The US Department of Education explains, “In order to allow a student with a disability the use of an effective aid and, at the same time, protect the instructor, the institution may require the student to sign an agreement so as not to infringe on a potential copyright or to limit freedom of speech.”

See US Department of Education guidance on Auxiliary Aids and Services for Postsecondary Students with Disabilities.

Can I prevent or limit the college or university’s recording of my classes?

Copyright law and ownership limits the ability of the institution to use or distribute recorded material. Faculty may also have the ability to limit the recording of classes through the use of chapter action, shared governance, or collective bargaining.

Can I prevent or limit students’ or third parties’ recording of my classes?
Many  institutions explicitly limit or prohibit student recording of classes. For example, the University of California-Irvine Recordings Policy says, “Unless otherwise expressly allowed by the professor, students may not record a class” And the Northwestern Synchronous Recordings Policy says, “Students are prohibited from recording class sessions and are also prohibited from the distribution of class recordings.” In cases where student recordings are prohibited, faculty can place a statement on their syllabi to put students on notice. Finally, institutional policies may permit instructors to require students to destroy any class recordings after the end of the term, even if those recordings are held as a reasonable accommodation. For example, under University of Montana policy, instructors elect whether to require students receiving recordings or recording classes to destroy them at the end of term and Macalester College policy requires all recordings to be destroyed or stored with the Office of Disability Services.

In addition to copyright law, other state and federal laws and many college and university policies may limit the ability of students or other third parties to record faculty lectures, whether online or in the classroom. For example, in certain states wiretap laws may prohibit student recording of classes by legally requiring all parties to consent to being recorded. Therefore, universities and others recording lectures should disclose to students that they may be recorded and collect consent from students. For example, the University of California-Irvine Recordings Policy states that “all students should be aware that any class, and discussions held therein, may be subject to recording.”

Recordings by students or other third parties also raise concerns under the federal Family Educational Rights and Privacy Act (FERPA). FERPA requires student consent before disclosure of personally identifiable information (PII) in certain education records. The US Department of Education explains in FERPA & Virtual Learning During COVID-19:

  • “[E]ducational agencies and institutions should discourage non-students from observing virtual classrooms in the event that PII from a student’s education record is, in fact, disclosed in such virtual classrooms.”
  • “Schools may wish to include instructions for students participating in the virtual classroom regarding not sharing or recording any PII from education records that may be disclosed in the virtual classroom or to obtain prior written consent to permit any such sharing of PII from education records.”

What can I do to clarify and improve my copyright protections?
Copyright policies are generally institution wide, so it important for faculty to work in concert, through am AAUP chapter or faculty senate. Where faculty are unionized there may be the right to bargain over certain aspects of copyright protection. Even if faculty did not bargain or get involved at the outset in plans for changes, they can get involved in the longer-term plans for future semesters. The recorded webinar Remote Teaching, Recording of Classes, and Intellectual Property provides examples of chapters taking action to clarify and strengthen faculty copyright during COVID times. 

What other resources does AAUP offer regarding faculty copyright?

For other general information on faculty copyright ownership, see http://www.aaup.org/issues/copyright-IP.