Reconciling Copyright Ownership Policies for Faculty-Authors in Distance Education

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

Since that time, other schools have begun to explore copyright policies for course content and lectures, particularly when used in distance education. Of twenty-five institutions of higher learning surveyed, fifteen of them currently have copyright policies related to ownership of faculty-authored works; while ten only address use of copyrighted materials under the "fair use" doctrine. Many institutions now see a potential market to capture some of the $225 billion market for distance education.14 Moreover, the government has aggressively promoted distance education by authorizing financial aid for students and funding to develop distance learning programs.15 While most of these programs are in areas other than law, it is just a matter of time before more law schools begin offering such courses.16 With institutions now seeing a potential financial windfall to be made in distance education,17 many institutions have adopted copyright policies under which home institutions have asserted more rights to what the professor does in his or her classroom, particularly when the lecture or course materials are put in an electronic medium.18

This article will examine the copyright policies of fifteen colleges and universities that have posted copyright ownership policies.19 The article offers a framework for faculty-authors who seek greater parity in ownership for their lecture and course materials when they are placed in digital form. It will focus on copyright ownership at the time the work is created or sought to be used commercially. It will not address permissive use of copyrighted course materials under the "fair use" doctrine.20

The next section will identify the basic components of a distance learning course that may be copyrightable. The third section will discuss the standard copyright policy and four general exceptions to author ownership adopted by these institutions: 1) works made for hire; 2) sponsored research projects; 3) institutional works; and 4) substantial use of institutional resources. The fourth section will examine misconceptions faculty often make about the value of their intellectual capital, and propose some win-win solutions that will allow both faculty and institution to benefit from the professor's work product.

II. COPYRIGHTABILITY OF A DISTANCE LEARNING COURSE

There are two components to any course, regardless of how it is delivered: 1) the course materials; and 2) the classroom instruction. The specific tools employed by faculty will vary, depending upon the individual's teaching pedagogy and style; their technical acumen, and the desirable learning outcomes and assessment.

In the traditional course, course materials include the textbook, hornbooks, and text and electronic study aids such as Computer Assisted Legal Instruction (CALI) lessons and Cyber Workbooks. The classroom component includes the professor's lecture and discussion, and a variety of teaching aids such as black or white boards, overheads and PowerPoint presentations; videotapes and other multimedia devices.