Reconciling Copyright Ownership Policies for Faculty-Authors in Distance Education

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

A. Standard Copyright Policy

The standard copyright policy at the institutions surveyed allow faculty members, librarians, and students to own the copyright to traditional works such as books, articles and other scholarly writings that are created for educational purposes.46 Materials printed electronically, computer assisted materials, and multimedia materials are treated the same as textbooks and articles in most cases.47 Such works must be created under the individual's own initiative as part of their normal scholarly, professional, or academic responsibilities.48 Moreover, institution policies require that the work be created without using substantial institution resources or resources that are not usually made available to other faculty.49

"Usual" institution resources include computer facilities, ordinary library services, secretarial, office, telephone and administrative support.50 Resources not available at the law school but available in other departments would not be included. For example, ordinary use of the law school's computer Information Technology (IT) personnel may be considered usual resources; however, use of IT personnel from a university's computer science department or communication department would not.51

The University of Michigan defines faculty-owned material using usual resources to include lecture notes, transparencies, case examples, textbooks, interactive textbooks, CD-Roms, software, articles and books, regardless of the media.52 For most institutions, the right to commercialize the work is the only restriction on the faculty-author's use, so use for non-commercial educational purposes is retained by the facultyauthor or specifically licensed by the university." Commercialization of faculty work is usually subject to conflict of interest policies that such use is not inconsistent or competitive with the institutions interests, and requires prior approval from appropriate institution personnel.54 Institutions such as Northern Texas retain a non-exclusive commercial license to market courses outside of the institution.55

This standard copyright policy has been endorsed by the American Association of University Professors (AAUP) and relies upon the "prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member's own initiatives for traditional academic purposes."56 Moreover, even though the faculty retains ownership of ordinary course content, such as tests, syllabi, and assignments, the AAUP recommends that the institution be granted a non-exclusive license to use such materials for internal instruction, educational and administrative purposes.57 Institutions such as the University of Michigan and University of North Texas specifically reserve such a right.58

Where commercial use is contemplated, the AAUP recommends that there be some royalty-sharing arrangement between the faculty-author and institution, in the same way patented course material or content are handled.59 Most of the institutions that address commercialization of copyrighted work allow some split of the net proceeds with the faculty-author.60 The amount or percentage allocation of royalties is either set in advance61 or at the discretion of the institution,62 usually in consultation with the faculty-author.63