Reconciling Copyright Ownership Policies for Faculty-Authors in Distance Education

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

Distance education employs many of the same tools used in the traditional course; however, there is greater reliance on technology. The Register of Copyrights defines "distance education" as "a form of education in which students are separated from their instructors by time and/or space."21 This definition is very broad, and includes a broad range of instruction; from traditional correspondence courses to synchronous instruction where professors use audio or videoconferencing to interact with students.

A. Components of a Distance Learning Course

Distance education uses technology to capture, deliver the content, and facilitate interaction between faculty and students. Features of a distance learning program can include e-mail; on-line libraries; links to other websites; bulletin boards; chat rooms, list-servs; streaming audio and video; video and audio conferencing; automated examination and evaluation software; and search engines.22

To understand who owns what in distance education, it is important to distinguish between courseware and course content. "Courseware" is defined as a set of tools and technologies used to present course content, which is independent of the course content itself.23 Courseware focuses on the delivery tools for presenting the material, e.g., text, video or audiotape; audio or videoconferencing; websites;24 and other multimedia, such as CD-Rom or DVD. The courseware for the Cyber Workbook platform, for example, is the authoring software, and the presentation and functioning software for the websites.

Copyright issues related to courseware are distinctive because the professor is usually not creating the work alone. Instead, the creative efforts of other persons are involved, such as programmers, and graphic and instructional designers. This means that there could be multiple persons who could claim to be an author or creator. In addition, it also means that more resources are spent developing the courseware. Persons, or more likely institutions who finance the development of the courseware, may also have an ownership claim. This makes identifying the "copyright owner" of courseware, much more complicated.

"Course content" is the intellectual content of the course as it is taught at the university.25 Course content includes a professor's class lecture and extemporaneous comments, handouts, overheads, and PowerPoint presentations. Content would also include the substantive modules developed using the Cyber Workbook courseware. Course content is often developed primarily or exclusively by the professor. At issue for faculty-authors is whether courseware and content should be a "work-for-hire" under the Copyright Act of 1976 ("Act"),26 which would vest ownership in the institution, rather than the author.

B. Basic Copyright Protections

In determining the nature and scope of copyright protection in distance education, the material or work first must be copyrightable. The Copyright Act of 1976 protects "any original work that is fixed and reduced to some tangible medium."27 The definition of "works" has been extended to include electronic material such as courseware and course content.28 This means that courseware and course content are considered intellectual property that is copyrightable.29 Thus, copyright protection extends to textbooks, notes, overheads, audio and videotapes, and any software-generated materials. It would also include the professor's lecture if reduced to tangible form, such as a videotape or audio broadcast of the course sessions.30