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Copyright and Intellectual Property
One question that seldom, if ever, came up until recently is "Who owns academic courses?" Another question edging into our collective consciousness is, "Should faculty retain copyright ownership of their research publications?" This question was almost unthinkable in the past; and now? At the Syllabus seminars on distance learning, participants always generate a list of hot topics. The topic of intellectual property always appears on the list, sometimes first, sometimes last, but always on the list. With the recent passage of the Digital Millennium Copyright Act on October 28, 1998, issues of copyright, and particularly those within distance learning environments, are scheduled to be discussed in public hearings this spring. The Copyright Office will be consulting with various groups on "how to promote distance education through digital technologies...while maintaining an appropriate balance between the rights of copyright owners and the interests of users." Recommendations from this study are due in Congress by the end of April 1999. If you are very interested in supporting the extension of fair use to distance learning through the digital technologies, you may want to join this discussion. Given these upcoming hearings, I thought that now would be a good time to revisit the issues of copyright and intellectual property, and to consider those issues regarding the Web and distance learning. I am not a lawyer, so keep in mind that these are the thoughts and ruminations of a 30minute expert. Looking at Copyright: User or Owner? When I first started working in education many years ago, most of my colleagues were interested in how and under what circumstances they could safely use materials copyrighted by others. In our new age of Web publishing, distance learning, and "snippet" publishing, faculty are now also very interested in what rights they might have if they become copyright owners themselves. Section 106 of the copyright law quite clearly states that copyright owners have the exclusive right to do and to authorize the following: Note: There was serious discussion about adding the sole right of "digital transmission" to the list of copyright owner's rights. This would have effectively made the use of electronic mail lists very susceptible to being illegal. That right was not added, but it is important to watch the progress of the copyright discussions. Who Owns Academic Courses ? As we move to the new teaching and learning environment on the Web, more of the elements of a course are becoming "fixed." Thus, answering this question for traditional courses must be taken more seriously. Many institutions have policies about copyright and faculty ownership of creative works. It is definitely time for all faculty and administrators to be aware of the current policies and to begin a dialogue about what policy is appropriate for their institution, and perhaps for their various programs. Some institutions have a policy called "work for hire." This means that any work done by a faculty member under contract belongs to the institution. Other institutions have policies about joint ownership and revenue sharing similar to patent agreements. At other times the faculty can negotiate to retain all copyrights —even of instructional materials. This most often is the case with textbooks. In any event, the time to discuss the ownership of any instructional material is before the project gets underway. Some distance learning projects involve a negotiated agreement between the faculty, their institution, and a publisher. What about the question, "Should faculty retain copyright ownership of their research publications?" This is another question that didn't come across the radar screen until recently. We all have become accustomed to a model in which faculty write research articles, submit them for publication, and then an institution purchases the research journals that publish the articles. In this model, the faculty turn over the copyright of the articles to the publisher in return for the publishers' work in reviewing, editing, publishing, and distributing the work. Two trends are causing higher education administrators to question this model. One trend is the steadily increasing cost of academic journals. The cost of many journals has become prohibitive, and institutions find it difficult to purchase those in which their faculty have published. A second factor is the increasing time it takes to ensure that the faculty stay legally within the copyright rules as they guard their own materials. The provost of the California Institute of Technology, Steven E. Koonin, made headlines in September of 1998 when he proposed that faculty no longer hand over the copyright for journal articles to publishers. Subsequent discussion noted that this idea was suggested in March of 1998 by a group that published their views in an article available at the Association of Research Libraries site. A letter to the editor from a senior vice president at Elsevier, a well-known academic publisher, suggested that the publisher added value by managing the review and the editing process, and suggested a distinction between the submitted manuscript and the final edited paper. Apparently faculty retained the right to put the submitted manuscript on their own Web site. In practical terms, what does this all suggest? Faculty, as they become "knowledge entrepreneurs," should consider negotiating with publishers a new set of rights for themselves as with regards to their work. Some of these rights are as follows: Joint copyright ownership of teaching and learning materials may or may not be reasonable. But it is important that we find ways to acknowledge the right of a faculty member to his/her own work, and the right of an institution for reasonable access to the work of faculty members. Judith V. Boettcher is Executive Director of the Corporation for Research and Educational Networking (CREN). She is also a Syllabus Scholar and contributes regularly to Syllabus magazine. Copyright © 1998 by Syllabus Press, Inc. |
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