Distance Learning Courses: Who Owns Them?
August 1, 2000
Ieuan Mahony - Boston
Developing an online distance learning course requires a significant
commitment of effort and resources. Once captured in a form for digital
delivery, the lectures and related visual effects can be re-used again and
again, and may become a strong revenue source through, among other means,
licensing beyond the “home” college or university. Accordingly, questions as
to ownership will invariably arise.
No clear consensus has emerged as to ownership of online courses or how to
allocate the revenue from them. For example, Duke University has a new policy
(announced May 23, 2000) whereby online courses using substantial Duke resources
will belong entirely to Duke, as works for hire. If the professor creates the
course independently, the professor will enjoy full ownership. For courses that
“fall in between,” a Committee appointed by the Provost will decide
ownership. In contrast to the relative clarity of this policy, under the new
policy of San Diego State University, the professor and the University must
agree on who will own the course before it is developed, with no provision for
situations where such an agreement does not exist.
Assessing Existing Copyright Ownership Policies
The first step in addressing these issues is determining whether the
institution has an existing copyright ownership policy and whether it properly
covers distance learning. Many institutions have in place a copyright ownership
policy generally applicable to educational and research materials. To encourage
professors to create such works, these policies expressly grant copyright
ownership to the professors, with certain limited exceptions.
These ownership provisions, however, generally have not been drafted with
distance education courses in mind, and thus are not well tailored to address
the online environment. In particular, most copyright policies do not directly
answer the question of whether a distance education course belongs to the
professor or the institution: the course content generally appears to fit the
definition of a “traditional work,” yet the delivery mechanism and certain
features of the course are anything but traditional.
Resolving Ownership Issues By Contract
Institutions and instructors should seek to reach an agreement at the outset
as to copyright ownership and revenue sharing. Developing an online course
requires a significant commitment from the institution, often including the
purchase of additional hardware and software as well as additional training for
instructors. Similarly, the instructor will need to make a significant
investment in the form of “sweat equity,” tailoring his or her lectures for
online consumption. Once the course is complete, the instructor’s role and “indispensability”
may diminish sharply. The instructor, therefore, may want to commit the
institution to maintaining his or her continuing role. Given the potential
return on a successful course, and the instructor’s need at the outset of the
development project for institutional support and resources, a contractual
resolution makes sense.
Certain universities are already changing traditional arrangements to
determine who owns what in the distance learning field. Penn State, for example,
has put in place a revenue splitting structure with faculty members who develop
distance learning courses in their departments. New York University reports that
its new subsidiary will hold ownership rights for all developed online courses.
Ownership Issues In the Absence of A Contract
Even without a contract or existing copyright policy, an institution may
still have copyright claims to distance learning materials, if they were
developed by the instructor using the institution’s resources. These claims
fall under two headings: (1) the “work for hire” doctrine, and (2) the “shop
right” doctrine.
The “Work for Hire” Doctrine
The Copyright Act recognizes the so-called “work for hire” doctrine by
which the “author” for copyright purposes is the party who hires an
individual to create the work. 17 U.S.C. § 201(b). The hiring party owns all of
the rights comprised in the copyright unless the parties have expressly agreed
otherwise in a signed writing.
A “work for hire” arises in two situations: (1) where the hiring party
and the work’s creator enjoy an employer-employee relationship, such that the
hiring party has the right to control the manner and means by which the work is
created, and the employee prepared the work in the scope of his or her
employment; and (2) where the hiring party and the work’s creator agree in
writing that the resulting work will be a “work for hire,” and the work
falls into certain specified categories, including a contribution to a
collective work, part of a motion picture or other audiovisual work, or an
instructional text. 17 U.S.C. § 101.
The “Academic Exception” to the “Work For Hire” Doctrine.
Some courts traditionally recognized a so-called “academic exception,”
under which academic writing was presumed not to be work made for hire. The
exception was based on the assumption that the work created by the instructor
was not rendered “within the scope” of his or her employment because
colleges and universities did not supervise their faculty in the preparation of
academic books and articles, and because institutions were poorly equipped to
exploit the works.
It is unlikely that the academic exception will apply to the creation of
online courses. Its continued validity has been questioned in light of
amendments to the Copyright Act and weaknesses in the underlying reasoning.
Specifically, the academic exception is based in large part on the assumption
that the work falls “outside” the instructor’s duties. Yet where an
instructor is hired specifically to create an online course, the basis for the
exception disappears. Nevertheless, the presence of this doctrine further
emphasizes the benefits of clarity, as a written contract would resolve any
doubts over application of the “academic exception.”
Non-Exclusive Licenses and the “Shop Right” Doctrine.
Worst case, if the instructor develops the materials using the institution’s
resources, the institution at a minimum is entitled to a non-exclusive,
royalty-free license to the materials. This “shop right” license arises by
implication and through the conduct of the parties. Although the institution
would not be able to prevent the instructor from using the distance learning
materials on his or her own, the institution at least would also have the right
to use the materials.
It is preferable by far to resolve ownership and revenue allocation issues at
the outset by written agreement, rather than rely upon “work for hire” and
“shop right” arguments after the fact. Substantial value may be present in
an online distance learning course. To avoid disputes over ownership of the
proverbial “goose with the golden eggs,” institutions and professors are
well advised to develop clear policies and contracts proactively.
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