Public Policy Issues Surrounding Online University Courses

By Holmes, Georgia L. | Forum on Public Policy: A Journal of the Oxford Round Table, Spring 2008 | Go to article overview

Public Policy Issues Surrounding Online University Courses


Holmes, Georgia L., Forum on Public Policy: A Journal of the Oxford Round Table


Introduction

Copyright law in the United States today is governed by the Copyright Act of 976. (1) Under that law works put into a tangible form are automatically given a statutorily created copyright for the life of the author plus 70 years. If a copyright is owned by a publishing house, the copyright expires 70 years after the death of the last surviving author. (2) At the time Congress drafted this act, the internet was in its infancy and was inaccessible to all but the most sophisticated users. Congress could not have foreseen the issues that now exist in a university setting when courses are offered online. It probably did not foresee the development of what some have termed the corporatization of the university. (3) Nor could it have foreseen the explosion in online learning. It certainly was not thinking about the increasing university reliance on adjunct faculty or the fact that many adjunct and part time professors teach at more than one institution or hold a full time job as an employee of another company or perhaps are self-employed. It certainly could not have foreseen the United States Supreme Court decision in the N.L.R.B v. Yeshiva (4) case four years later, or that copyright and labor relations law could have a relevance to each other and to the tradition of academic freedom that university faculty so cherish. Thus when it decided to statutorily define a "work for hire" to subsume the case law definition of the "work for hire" exception to the general premise of copyright law that a copyright belongs to the creator of the work, Congress may not have realized it would also be eliminating a judicially created exception to the exception (the "teacher exception") that presumes ownership of academic works to be with the professor or teacher who creates them. (5) Yet all of these events have converged to raise significant public policy issues of concern to academia.

Work for Hire and the Teacher Exception

Prior to the 1976 Amendments to U.S. copyright law, teachers owned their teaching materials and scholarly works pursuant to an exception to the "work for hire" doctrine under the older 1909 Copyright Act. Under copyright law, there are three basic types of ownership, which are (1) the author as the owner; (2) the employer as owner pursuant to the work-for-hire doctrine; and (3) the employer as owner of a work commissioned by the employer and created by an independent contractor for the employer. (6) Over the years both case law and custom have dictated that scholars have owned the materials they create, despite the copyright doctrine of "work for hire." Although faculty are clearly "employees" within the scope of employment, labor, tax, worker's compensation and unemployment law, they have not traditionally been considered "employees" within the scope of copyright law. Anyone involved in higher education knows that the nature of the work performed by a professor at all but proprietary institutions is more akin to that of an independent contractor than it is to that of a servant under the master-servant analysis of agency law. Copyright law has historically recognized that fact. The teacher exception to the "work for hire" doctrine was created by case law under the 1909 act. However, because the 1976 copyright statute did not incorporate language recognizing it, the "teacher exception" was subsumed by a work-for-hire doctrine that Congress took from the U.S. Supreme Court's definition in the case of Community for Creative Non-Violence v. Reid. (7)

Many scholars believe the "teacher exception" still exists despite its having been subsumed into revised statutory language. In her article "Legal and Policy Responses to the Disappearing ... Teacher Exception. or Copyright Ownership in the 21st Century University" Professor Elizabeth Townsend argues that the legislative history of the 1976 amendments do not indicate an intent to eliminate the "teacher exception." (8) Although there are few reported cases involving the teacher exception, the United States Court of Appeals for the Seventh Circuit has decided two cases since the 1976 statutory revisions. …

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Public Policy Issues Surrounding Online University Courses
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