Reconciling Copyright Ownership Policies for Faculty-Authors in Distance Education

Journal of Law and Education, Oct 2004 by Johnson, Andrea L

I. INTRODUCTION

In an era when technology has transformed how higher education can be taught, distance education has become a viable alternative to traditional methods of instruction. As a result, faculty who develop innovative teaching materials for their classes must increasingly become aware of the copyright implications associated with use and ownership of their works. What was previously considered a non-issue for institutions is now a point of heated debate. The right to control and exploit the intellectual capital of what faculty do in the classroom is at stake.

In 1996, this author taught the first distance learning course at an American law school, teaching simultaneously at Cleveland-Marshall College of Law in Cleveland, Ohio and California Western School of Law in San Diego, California.1 As part of the course, students connected with experts at four different sites in California and Ohio via audio and videoconferencing.2 The course required students to have Internet access for E-mail, a list-serv for posting assignments, and an electronic workbook in lieu of a textbook. The biggest surprise and success was the effectiveness of videoconferencing. The biggest disappointment and subsequent challenge was using the electronic casebook, which was neither user friendly nor was it effectively integrated into the classroom experience.3 The electronic casebook simply became a repository for reading assignments.4

The solution was to develop a web-based platform for authoring electronic materials called "Cyber Workbooks." The Cyber Workbooks' platform consists of an authoring tool with wizards for creating modules that test different skills and learning outcomes; a student website to access modules; and an administrative site that allows faculty to assess learning outcomes, generate reports, and tailor the modules to their particular teaching style. Since then, modules have been developed for different faculty to supplement class lectures and course materials. In addition to buying a textbook, students pay a license fee to get a user name and password that will enable them to access the assigned module.

My law school supported my efforts by paying for me to attend and speak at conferences on distance learning, and by giving me "credit" for conducting research in this area that would satisfy my contractual obligations to the school. However, my institution did not assert any interests, rights, or claims to Cyber Workbooks, and did not participate in my negotiations with other institutions. I did, however, grant to my law school and the faculty a non-exclusive, royalty-free, license to use Cyber Workbooks to develop course materials.5 Modules created for other faculty or institutions were either subject to a joint copyright or were construed as "works for hire" under which I was a paid a fee for my services, and assigned my rights to the institution.

The administration's acquiescence to sole copyright ownership was due, in part, to the fact that much of the development of Cyber Workbooks was financed using personal funds,6 supplemented incidentally with research grants,7 federal work study for research assistants, and later with stipends from institutions that wanted me to develop content material for their faculty. Under many copyright policies adopted today, it is unclear whether the asserted copyright would go unchallenged by the institution.

This experience reflects how many institutions, until recently, dealt with copyright issues related to faculty-authored electronic content. Prior to 1998, few, if any, law schools had copyright policies governing electronic content developed by professors. The absence of copyright policies was due, in part, because institutions did not perceive a viable commercial market for such materials in legal academia.8 As a result, there was little threat that revenue would be diverted from the institution.9 Institutions that had copyright policies generally applied these policies to disciplines other than law, such as science and engineering where there is heavily reliance on third-party sponsorship of research and development.

In 1998 law schools started to take notice of copyright issues in distance education after Concord University, the first on-line law school, accepted its initial class of eighty students.10 Concord offered eleven videotaped class lectures on civil procedure by Harvard Law School's Professor Arthur Miller.11 Harvard's Dean Robert Clark challenged the action, claiming that Professor Miller had violated the school's conflict of interest policy that prohibits faculty from teaching at other institutions without permission. Professor Miller disputed the claim, charging that he was not "teaching" since he does not meet, interact, or exchange e-mails with any of the students.12 In response, the law school revised its faculty manual, which now requires permission from the dean before serving as a teacher, researcher, or salaried consultant to an Internet-based "university."13