A new frontier: in the digital environment, administrators must decide: are faculty members free agents or employees bound by copyright law?

Matrix: The Magazine for Leaders in Education, April, 2001 by Karen Singer

Arthur Miller, a Harvard University Law Professor, received a crash course in copyright issues when he sold a series of videotaped lectures to an online institution.

Harvard objected, suggesting Miller violated a school policy because he didn't ask permission to "teach" at another law school. Miller has contended he isn't teaching, and has often conducted lectures at other places via other media, including television.

This case is one example of how the emergence of new technologies for creating and disseminating course materials is posing vexing questions for higher-education administrators about faculty output in a digital era.

Distance learning, in particular, is challenging the traditional belief that professors own their classroom courses and related creations such as articles or books.

Online learning has spawned a new learning environment and new markets for faculty-created works.

Controversy over who owns that work--and where and under what circumstances it may be used--is causing many schools to rethink, and change, their policies.

Related issues, including faculty Web sites and student sale of classroom notes to Internet companies, also are generating disagreement. And, as more schools participate in distance learning, the debate is intensifying.

The parameters of distance learning are a bit easier to define than to quantify. At the moment, the most lucrative areas appear to be in the business and professional markets, with non-degree programs aimed at large numbers of lifelong learners not far behind. Less clear is how important undergraduate and graduate programs will become. Although double-digit billion dollar sales figures have been bandied about, it seems to be strictly guesswork as to how this market will grow.

Making megabucks from multimedia course materials, however, is unlikely, according to "Who Owns Online Courses and Course Materials? Intellectual Property Policies for a New Learning Environment," a report by The Pew Learning and Technology Program 2000.

When members of the symposium on which the report was based were asked about this so-called gold mine scenario, "there was universal agreement: most online courses and the materials contained within them are not valuable enough in economic terms to result in much, if any, corresponding pecuniary rewards," the report says. "It is unlikely that even a small percentage of faculty or institutions will experience any commercial success whatsoever, just as it is unlikely that most faculty members' lecture notes will become successful textbooks, though with help from a good publisher, some will. The agreed-upon estimate of those courses that may be successful was less than 1 percent."

Moreover, the cost of producing and managing online courses may be even higher than expected.

"Recent studies are showing more people want the right to ask questions by e-mail, which takes even more time and resources," said Trotter Hardy, associate dean of technology and professor of law at the William and Mary School of Law. "So it may not be the cash cow many are expecting."

Despite how much, or how little, may be earned, a major problem, from an administrative perspective, has become one of determining who owns what, and under what circumstances.

"Copyright law provides that the work of employees does, during their employment belong to their employer," said Rochelle Dreyfuss, a New York University law professor and director of the school's Engelberg Center on Innovation Law and Policy.

"Under the prior copyright act, there was always thought to be an exception for academics and their writings, and there was a set of cases under the old act on that.

The new act didn't really address those cases at all, but there have been a few cases on things like articles, in which faculty members were recognized as owning their own work."

There's a need for a more creative approach because there's far more involved than "just the economic rights to some finished work," said Kenneth Crews, associate professor at the Indiana University School of Law-Indianapolis IU School of Library & Information Science, and the director of the Copyright Management Center at IUPUI.

Also at stake, he says, are issues of integrity of the work as well as issues of the professional reputation of the individuals and the institution. Until recently, course materials were perceived as having little intrinsic value, Dreyfuss said, adding, "Nobody's ever really fought over them. Sooner or later things will change, possibly because of a court case, with somebody like Arthur Miller being sued by a university."

Exhibit A in the Debate

Miller often is cited as "Exhibit A" in the university/faculty debate because he sold his videotaped lectures to Concord University of Law, an online institution. Harvard's apparent objection is that Miller is profiting from the sale of course material produced as part of his job at Harvard, and that the course material is being used at another institution.

Although it often comes up in discussions about digital media, the copyright or intellectual property issue "really is a red herring," contends Dan Burk, a professor of law at the University of Minnesota.