Policy Characteristics and Best Practices

Kimberly Bonner, Esq. And Kimberly B. Kelley, Ph.D.

University of Maryland University CollegeCenter for Intellectual Property

(http://www.umuc.edu/distance/cip)

Copyright Kim Bonner and Kim Kelley (2002). This work is the intellectual property of the authors. Permission is granted for this material to be shared for non-commercial, educational

purposes, provided that this copyright statement appears on the reproduced materials and notice is given that the copying is by permission of the author. To disseminate otherwise or to

republish requires written permission from the author.

Copyright Ownership and Digital Course Materials:

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Views With Courseware Ownership

• American Association of University Professors states: “the academic exception should ordinarily apply to the development of courseware for use in programs of distance education.” See http://www.aaup.org/spccopyr.htm

• American Association of Universities states: “the university…own[s] the intellectual property that is created at the university by faculty [and] research staff…with substantial aid of its facilities or its financial support.” See (http://www.tulane.edu/~aau/IPNewMediaReport.html).

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Issues in the Online Environment:• The Faculty:

– revenue

– control

– academic freedom (unpopular, edit suggestions)

– quality

– loss of professional respect

• The Administration:– up front costs (unusually expensive, like patents?)

– support staff = team approach

– repeated use rights

– what happens when the faculty leaves?

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AA

• Author is generally the owner in copyright law pursuant to 17 U.S.C. 201(b)

• Exception is to this approach is work made for hire. In that case, the employer is considered the author “unless the parties expressly agreed otherwise in a written instrument signed by them…” 17 U.S.C. 201(b)

Legal Framework

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Policy Justification• Historic policy justifications behind the

Academic Exception– Inconsequential Commercial Value

– Employability

– Prior Work

– Uniqueness

– Anarchy

– Incongruity

» See Holmes and Levin, 2000 BYU Educ &L.J. 165, 186

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The Academic Exception to the “Work for Hire” Doctrine • Work held not to be a work made for hire.

• Context has been academic books, articles, professor’s notes (traditional scholarly works).

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Legal Precedents• Weinstein v. University of Illinois, 811 F2d

1091 (7th Cir. 1987)

• Hays v. Sony Corporation of America, 847 F.2d 412 (7th Cir. 1988)

• CCNV v. Reid (490 U.S. 730 (1989)

• Cases are few, not definitive

• Academic Exception is not codified in Copyright Act of 1976

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The Continuum

Academic exceptionContractsExplicitly stated in policyBelow threshold in use of resourcesUnrelated to job responsibilities

Work for hirecontractsabove threshold in use of resourcesexplicitly stated in policy

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Courseware Ownership Study• Institutions selected based on their distance

education enrollments (>2000) in Peterson’s Guide to Distance Learning Programs 2001

• 79 institutions surveyed. Included 2 and 4 year institutions

• 86% response rate

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Purpose of Courseware Study To:• Determine types of policies

• Identify separate or subordinate policies

• Identify exemplary policies, per respondents

• Investigate role of collective bargaining

• Examine use of contracts

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Findings:• One overarching policy typical

• 29% had no policy on intellectual policy

• Separate or subordinate policies rare

• Most policies current, but inadequate for courseware issues

• Collective bargaining is rare

• 48% indicated they rely on contracts

• Student ownership issues handled inconsistently

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One Policy vs. Multiple Policies• One policy

– Ease of use for faculty, staff, students

– Provide a single, unified document

– Simply merge courseware into already existing copyright policies dealing with teaching materials

• Two or three policies– Specialized expertise can be utilized

– More options in each policy with regard to sharing rights

– Each policy can be specific and shorter than unified document

– More work to develop, more maintenance required

– Ensure coordination of separate policies

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Conclusions:• Contracts used to clarify ownership

• Courseware often subsumed under teaching works

• Exemplary policies (as identified by respondents) consistently recognize the academic exception

• Specialty policies, while rare, are quite valuable

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Why Do We Need Policies?• In absence of clear legal framework, need

clarity for institutions and their faculty

• Define whether, when, and how the academic exception is applied

• Decide who is the “default” owner

• Lessen likelihood of litigation

• Encourage creativity and experimentation

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Summary: Three Possibilities• University ownership model: If any university

resources are used, university owns the copyright. Or, university claims all work as a work for hire.

• Shared ownership model: each party has certain rights, responsibilities, and benefits.

• Faculty ownership model: ownership defaults to the faculty and university rights are carefully prescribed.

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Exemplary Policies

• University of Kansas

• University of Alabama

• University of Washington

• University of Massachusetts

• For other excellent examples, see Portal article in your handouts

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Examples of Ownership

• Univ. of Kansas:• Mediated Courseware:

– Self-initiated mediated courseware. When employees develop mediated courseware without specific direction by the institution, unless otherwise agreed, the ownership of the courseware shall remain with the employee.

– Institution-directed mediated courseware. When the institution specifically directs the creation of mediated courseware by assigning one or more employees to develop the mediated courseware and supplies them with materials and time to develop the mediated courseware, the resulting mediated courseware belongs to the institution and the institution shall have the right to revise it and decide who will utilize the mediated courseware in instruction. The institution may specifically agree to share revenues and control rights with the employee.

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University of Alabama

– Materials produced by faculty and employees of the University shall be the exclusive property of the faculty member or employee, so far as copyright is concerned. It shall be the responsibility of the faculty member or employee to copyright appropriate material. University assistance, such as released time, research or secretarial assistance, the purchase of particular materials, etc., must be acknowledged appropriately.

– In the event that extraordinary assistance (assistance exceeding usual department or area policy) is provided by the University, a division of royalty may be required. When extraordinary assistance is provided, it is the responsibility of the department chairperson or area head to notify the faculty member in writing that the assistance to be provided exceeds usual policy. The faculty member or employee is responsible for negotiating any division of royalty with the Office for Academic Affairs prior to signing a contract.

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Options• Does not have to be “all or nothing.”

• The online environment requires new thinking about ownership.

• Institutions and their faculty need to avoid past mistakes.

• Need to debate and discuss to find solutions.

• Need to update, revise, and/or establish policies acceptable to all.

• Need to consider the creator’s and the institution’s needs.