"Sovereignty of Reason:" An Approach to Sovereign Immunity and Copyright Ownership of Distance-Education Courses at Public Colleges and Universities

Journal of Law and Education, Apr 2005 by Klein, Michael W

The growth of online education at public institutions is causing some state governments to seek partners across state lines and to consider the need for long-range planning. In 2002, West Virginia and Kentucky entered an agreement allowing students in West Virginia to take online courses from community colleges in Kentucky.29 Virginia is considering legislation that would require its public colleges and universities to plan for the use of distance education. The bill would require that by January 1, 2005, "each public institution of higher education shall include in its strategic plan information indicating to what extent, if any, it will use distance learning to expand access, improve quality, and minimize the cost of education."30 Institutions using or planning to use distance learning in the future would be required to include in their strategic plan "the degree to which distance learning will be integrated into the curriculum, benchmarks for measuring such integration, and a schedule for the evaluation of such courses."31

III. COPYRIGHT OWNERSHIP OF ONLINE DISTANCE-EDUCATION COURSES

A. Faculty Interests v. University Interests

The development of online courses has led institutions and their faculty to clash over copyright ownership. Current institutional policies covering intellectual property typically do not adequately cover online courses and their materials, since these materials are part textbook-to which universities rarely claim ownership rights-and part invention, to which universities usually own the patent rights and share in licensing income.32

Faculty members assert practical and policy reasons for ownership. First, they often envision making a profit off of these courses.33 They are equally concerned that if they give up ownership of the course and its online materials, they will lose control over content of the course and dissemination of the work-including the manner of distribution, revisions, and derivative works-which in turn would threaten academic freedom.34 As one author put it: "[F]aculty copyrights are being constructed as badges of autonomy, independence, and control."35

The labor intensive nature of developing and teaching an online course also leads professors to seek ownership. Besides developing the course, they usually maintain chat rooms and respond to e-mail from students around the clock, which raises concerns over staffing, course loads, advising, faculty support, and teaching-assistant roles.36

Universities, like their faculty, have an economic interest in owning online courses.37 This interest is especially prominent when the institution incurred the primary cost of creating the materials.38 The distance-education company supported by Oxford University, Stanford University, and Yale University, called AllLearn, spent between $10,000 and $150,000 to produce each of its approximately fifty courses.39 At Fairleigh Dickinson University, the five year implementation cost of the university's requirement that all students take at least one distance-education course each year will be approximately $12 million; the expenses include costs for distance education, technology infrastructure upgrades, and related staffing.40 The "electronic-classroom" M.B.A. program at the University of Arizona, which connects its Tucson based classes to a classroom in Santa Clara, California, features a system of two videoconferencing rooms leased by the university for $17,000 a month.41