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division of ownership rights may resolve academic intellectual property disputes

By Ann Quigley / September 2001

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Several years ago, Harvard law professor Arthur Miller sold videos of his lectures to an online law school called the Concord School of Law. Not at all pleased when it discovered what he had done, Harvard accused him of violating University policy. Miller retorted he had violated no such policy, and the lectures were his intellectual property. And so the two parties began a lengthy debate over who owns what, and what rights that ownership bestows.

Miller's experience got plenty of media attention, but it wasn't an isolated occurrence. As course materials become a hot commodity in this era of distance education, cries of "It's mine!" and "No, it's mine!" have spread from playgrounds to the halls of higher education. "The polite tradition in academia has been that faculty own their course materials," says Vicky Phillips, CEO of, a consulting firm in Essex Junction, Vermont. "There has not, until now, been a mass market for raw materials like syllabi, notes, and lecture snippets."

Faculty at UCLA, Pima Community College in Tucson, Arizona, and York University in Canada have also engaged in ownership tug of wars. Battle lines have been drawn even at an official level: The American Association of University Professors argues that faculty should own their course materials, whereas the American Association of Universities claims universities deserve them. It's a situation screaming for adult intervention.

"We need to work out compromises and ways of sharing where no one is exploited," says Glenda Morgan of the University of Wisconsin's Office of Learning and Information Technology. "I think as the hype settles about all the incredible 'profits' to be made from online learning, we'll be able to make those compromises."

Opposing Points of View

Both sides have valid reasons for clutching intellectual property to their chests. Institutions creating online courses spend enormous sums on computers, software, server time, and staff. They want to ensure that their investment benefits them and not the competition. Faculty members have their own concerns. York University professor David Noble has written extensively about his fear that professors' creative efforts will be usurped and processed into cookie-cutter online courses that eliminate the need for flesh-and-bone faculty. Noble's views are extreme, but he taps into already-existing concerns. "The increased use of part-time faculty has led to general uneasiness about the exploitation of faculty, and distance learning fits in with a fear of technology used to exploit faculty further," says Gary Berg, director of extended education at Chapman University in Orange, California.

Resolving the ownership tug-of-war is challenging because, legally, no default position exists regarding course ownership. Existing intellectual property statutes are open to interpretation, and university policies vary widely. Under the 1909 Copyright Act, several courts opinions ruled that, to protect academic freedom of expression, institutions shouldn't be allowed to own the intellectual products of faculty as works for hire. But the copyright statutes were revised in 1976, and it's uncertain whether the "academic exception" to the work-for-hire doctrine survived the overhaul. To get around this uncertainty, the American Association of University Professors encourages faculty to set up contracts to establish ownership of intellectual property. Such contracts would override the copyright law in the event of a dispute.

Know Your Copyrights

But a contract isn't foolproof. "I've seen contracts that faculty have signed that let the faculty member retain the copyright yet give the university the exclusive, lifetime right to develop the faculty member's content into a multimedia course, often with credit but with no remuneration given to the faculty member," Phillips says. "The faculty owns the copyright, but they also just signed away the right to commercially benefit from it in e-course format. You'd be surprised how many well-educated people do not understand copyright, and the fact that who holds the copyright is not as important as who holds the license, or specific right, to commercially develop a work in a certain media format." Phillips says faculty and universities need to develop a more businesslike approach to the issue of ownership, and develop explicit ownership terms for every piece of intellectual property created by faculty.

One approach slowly gaining momentum is the idea of dividing up, or unbundling, ownership rights. The University of Vermont Faculty Senate recently approved an intellectual-property policy for distance education that splits the ownership of online courses into content, to be controlled by professors, and instructional design, to be controlled by the university's staff. This type of approach may be fairest, Morgan says. "In effect it's saying to faculty, 'Okay, the content is yours, just as it has always been.' But it is also acknowledging that faculty generally are not putting courses online all by themselves, but with the skills of instructional design and other staff. Of course, how this is going to work in practice is going to be interesting."

A Delicate Balance

Working out such agreements in practice will probably be quite challenging, but the appeal of the unbundling approach is that it reflects the symbiotic relationship that has always existed between academics and institutions, and suggests these two parties needn't be at loggerheads over ownership.

A report issued by the Pew Learning and Technology Program called Who Owns Online Courses and Course Materials? urges colleges and universities to be mindful of their dependence on skilled faculty. Online education will always require human interaction, as students will always need someone with the training and authority to usher them through the learning experience, according to the report. "Probably one of the most demoralizing things an institution could do would be to change the intellectual property ownership policy by saying, 'We used to let you own your course materials, but that was before we realized there was money to be made off them,'" the report says.

To some degree, the intellectual property tug-of-war has always been a problem in higher education, according to Berg. "The trick is to balance the rights of the individual to ownership of their own ideas, with the benefit to society and universities in the free exchange of knowledge," he says. "Distance learning is simply pushing the argument to its logical end."


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