Who Owns Online Course Intellectual Property?

Article excerpt

Faculty develop intellectual property needed for online courses while employed by an academic institution. That institution has a claim on the copyright because the instructional materials developed by the faculty members could be seen as "works for hire." On the other hand, both tradition and case law have seen faculty as the copyright possessors of any instructional materials they develop. The interests of both the administration and faculty may be best served with a negotiated agreement that gives the institution ownership rights while allowing use and distribution rights to remain with the authoring faculty.

INTRODUCTION

The controversy over who owns academic coursework materials has intensified with the proliferation of online courses. Many faculty believe the intellectual property they produce for coursework belongs entirely to them. Harvard Law School's Arthur Miller demonstrated the profit that can be made from freelance academic work when he produced a video series on (ironically) civil procedure and intellectual property for a course offered at a different online institution. Miller saw this as no different from book publishing deals he had been negotiating for many years (Alger, 2000). At the same time, college and university administrations believe the intellectual property rights of course materials developed by the faculty they employ belong to them. Both faculty and administration believe they have strong arguments in their favor. Intellectual property ownership is especially important in the context of computer-based distance education. This article discusses the merits of the arguments faculty and administration for retaining online intellectual property rights and proposes a compromise that can serve the interests of both the administration and the faculty.

OWNERSHIP AND CONTROL IN THE DISTANCE LEARNING AGE

Distance education is growing in importance as well as in numbers in the United States. In the 2000-01 academic year, the National Center for Education Statistics (NCES) reported that 2,320 two- and 4-year degree-granting institutions in the United States, or 56%, offered distance education courses, an increase of 12% over the 1997-1998 academic year (Tabs, 2003). While distance education has the altruistic benefit of taking "the tools of success to those who have the least access to resources" (Nemire, 2007, p. 27), there is a more pecuniary reason for the recent growth in distance learning courses.

After the passage of the Bayh-Dole Act (Public Law 96-517) in 1980, universities and other small entities (included "as an after-thought" (Nelsen, 1998, ¶3)) were able to own the patent rights to inventions they discovered while conducting research sponsored with federal funds. Rhoades (2001) noted that this provision was intended to help spur the growth of small technology businesses. While universities were required by law to use any profits derived from royalties for further research, it may also have begun the slow turn of academic institutions from nonprofit organizations toward the "commodification" ("Academic Commodities," ¶ 2) of academic products. At the same time, the rise of personal computers and the Internet have produced a resurgence of distance education and have allowed faculty to improve both their instructional methods and products (Rhodes, 2001).

While opportunities for revenue enhancement from technology appeared, Rhoades (2001) also highlighted revenue pressures from decreasing state support for public colleges and universities. The Association of American Universities (AAU) (1999) indeed hoped distance learning over the Internet would stimulate "a new form of 'academic free agency'" that would allow universities to reach "large numbers of students and other authences" ("Boundary Problems and Likely Contested Zones Involving Intellectual Property in the New Digital Media," ¶ 16). Whether it is faculty selling their instructional talents and intellectual property to private companies or universities acquiring a more business-like model toward the fruits of academic labor, contention for the intellectual property rights of faculty is rising rapidly (Rhoades, 2001). …