Reconciling Copyright Ownership Policies for Faculty-Authors in Distance Education

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

Copyright protects the expression of the work, giving the author the exclusive power to: 1) copy or reproduce the work; 2) create derivatives or adaptations; 3) sell or transfer the rights; 4) publicly perform the work; and 5) publicly display the work.31 There is nothing special required to obtain common law copyright protection, which attaches once the work is reduced to a tangible form. Copyright protection lasts for the life of the author, plus seventy years.32 Works made for hire have copyright protection for ninety-five years from publication or one hundred-twenty years from creation, whichever is less.33

There are three requirements that will formalize copyright protection, which entitles the holder to additional benefits. First, the author should provide notice by affixing a copyright notice, including the word or symbol, "©", conspicuously on the work, along with the year of publication.34 Second, the author must register their copyright by filing the appropriate form and paying a fee.35 Registering the copyright simply establishes prima fade evidence of the assertions made on the registration form, which can be used in prosecuting copyright infringement and allows the claimant to receive statutory damages.36 Finally, the copyright holder must submit two copies of the work to the Library of Congress.37

The law governing ownership of on-line courses is "murky and untested."38 Who owns the copyright will vary depending on a number of factors that include who the author is and the circumstances under which the work is created. Under the Copyright Act of 1976 the creator or the author of the work is considered the owner of the copyright, subject to certain exceptions, such as "works for hire" or "works specially ordered or commissioned."39

The Copyright Act is silent regarding ownership of on-line courses. Moreover, recent amendments40 and reports on distance education do not address ownership issues.41 As a result, copyright ownership of distance learning courseware and content is determined by institution policy, contractual negotiation and common law copyright principles.

III. COPYRIGHT POLICIES AND EXCEPTIONS

The copyright policies of all fifteen institutions surveyed reflect the long standing tradition in academia to recognize the independence and relative autonomy of faculty in teaching and research.42 The tenor and flavor of some institutional policies reflect a mutual cooperation between institution and creator in developing works, sharing in any "royalties" derived from commercialization of such works, and a "codification of the tradition."43 Other institutions are more conservative in their language, acknowledging that the Copyright Act of 1976 grants them rights in faculty work,44 but disclaiming such rights subject to certain exceptions, citing the traditional practice to the contrary.45 Such institutions will often use terminology such as "grants," "reservation," or "retention of rights." The result is relative consistency in the effect of institutions' copyright policies, without any clear resolution of the legal basis for such rights.