Professors and Universities Anticipate Disputes Over the Earnings From Distance LearningBy LISA GUERNSEY and JEFFREY R. YOUNG
For centuries, professors have prepared
Join the debate: When professors create on-line courses, or materials for distance education, who owns the intellectual property? The professors or their institutions?
Sidebar: "UCLA Contract Shows Complexity of Issues Involving On-Line Courses," 6/5/98
More daily coverage from our Information Technology section
RELATED LINKS:
American Association of University Professors' report on distance learning
Reports by the Consortium for Educational Technology in University Systems
CAUSE/EFFECT article on ownership of course materials
University of Hawaii Professional Assembly Contract
University of Texas System Policy on Telecourses and Distance Learning Copyright Issues
A sample agreement created by the Copyright Management Center at Indiana University
If people are, in fact, willing to pay for a CD-ROM or for access to a World-Wide Web site that includes recorded lectures, syllabi, and course notes, who should reap the profits? The faculty member who created the course? The university that was paying her and that provided the resources she used? Both of them? And if a professor uses university resources to develop an on-line course, can he market the course on his own? Can he take it with him to another university?
"Distance education puts academic freedom and intellectual property under the microscope as never before," says David M. Rubiales, the lead author of a recent report on distance learning for the American Association of University Professors.
The problem is that on-line courses and course materials don't fit into existing university policies for intellectual property. In some ways, they're like inventions: Universities usually own the patent rights to their professors' inventions and share with them the income from licenses on those patents. In other ways, the on-line materials are like textbooks: Universities rarely claim any rights to such works, leaving professors to deal independently with publishers.
So far, neither Congress nor the legal system has offered much guidance. "The law is utterly unclear on the answer of who owns traditional and scholarly materials at the university," says Kenneth D. Crews, director of the copyright-management center at Indiana University.
At the moment, the debate is also somewhat abstract. Few electronic courses, if any, have become best sellers, or have even made much of a profit. There are even fewer examples of profit-hungry universities' stripping professors of rights to course materials.
But forecasters predict storms on both fronts. Unless people set policies on course ownership now, experts say, universities and professors may find themselves mired in legal battles.
"To have no policy will most likely cause major dysfunction in the years ahead," says Graham B. Spanier, president of Pennsylvania State University, which has shown an interest in distance education.
The way such policies are worked out could shape the future role of faculty members.
Some professors fear that if they don't protect their rights, they might soon be treated as producers of Hollywood-style courses that are designed to draw a market. Others acknowledge that a university should gain some profit from a collaborative production, but don't want to give away too much.
Generating those policies can be a messy business. Administrators at the University of California at Los Angeles are under attack by critics who say the university's on-line extension program has given away instructors' rights in an agreement with a private company. At Princeton University, a draft policy led some professors to complain that it would strip them of ownership of their Web sites.
Perhaps the messiest example is that at Athabasca University, in Canada. Professors there are so angry over their institution's approach that they are considering going to court.
Athabasca, founded in 1970 by the province of Alberta, offers mostly distance-education courses to about 12,000 students. It claims the rights to all courses its professors produce, and it sells some of those courses to other institutions. Until 1994, the university gave 30 per cent of the revenue produced by those courses to staff and faculty members, in part through the faculty association.
But four years ago, the university's governing council changed the policy, so that the university kept 75 per cent of the revenues and gave the rest to the administration of those departments that had produced the courses. The faculty association received nothing -- and it vigorously protested the change.
Since then, says Art Nutt, vice-president for finance, the university has recognized the professors' distress and has unofficially reverted to the previous policy until a new one can be negotiated. "We are willing to work with them on this," he says.
But professors say they are not satisfied and still resent the administration's earlier position. "This shows contempt for the faculty on the part of the university," says Alvin Finkel, a history professor. "It essentially says that we didn't make a contribution, that we are dispensable." Negotiation doesn't appear to be working, he says, adding, "The next step is the courts."
The Athabasca model is exactly what many professors fear. To avoid it, faculty groups are staking out what they believe their rights are. They worry that if they yield ownership of course materials, they will lose control over course content, which in turn would threaten academic freedom.
The American Association of University Professors has just published a report that holds tight to the belief that a professor's course, whether taught via computer or otherwise, should be considered that professor's property.
The report, which was published on the association's Web page, cites a University of Texas policy as one worth emulating (http://www.aaup.org/dlreport.htm). It is thick with specifics about professors' rights to their distance-education courses: For instance, professors have control of the use and reuse of their telecourses.
The National Education Association also advocates placing ownership of course materials in the hands of professors. "We don't think that this new-tech environment means that suddenly, because they've got a Web site, the university owns it," says Christine Maitland, higher-education coordinator for the association. "I sometimes think administrators get a little carried away and think they can just grab these materials."
She says the University of Hawaii's latest contract with faculty members addresses many N.E.A. concerns. The contract says that in most cases, professors own exclusive rights to their work, and that the university cannot reuse an on-line course without the professor's permission.
John H. Radcliffe, acting executive director of Hawaii's faculty union, says the group fought for on-line rights while the contract was under negotiation. "We wanted to be sure that we were safeguarding that," he says.
Administrators at other universities say the issue is not so clear-cut. Is it fair to presume that professors retain all rights to on-line courses when those courses could not have been created without the help of instructional designers and expensive university equipment?
At Raritan Valley Community College, a team of professors teaches a course called "Global Patterns of Racism." The college plans to offer it on line next fall, after its technical staff has added multimedia components.
"The college has invested a lot of money in this course. We would not want this course to just go away," says Chuck Chulvick, dean of academic services. If a professor claimed full ownership of the course and then left to teach at another institution, he asks, could the college still offer it?
"And if a publisher came along and said, 'We want the course,'" he adds, "the college would want to be involved."
Such questions prompted Mr. Chulvick to form a committee to set a policy that professors and the college can agree on.
Other universities maintain that if a professor has developed an on-line course, the arrangement is essentially an instance of "work for hire," a legal concept that assumes that an employer can claim ownership of an employee's work.
Kathleen Davey, dean of instructional technology at Florida Gulf Coast University, contends that as long as professors are creating courses that universities are paying them to create, the "first rights belong to the university."
The policy that she is now drafting makes no mention of on-line courses created with university support, although it does state that the university cannot exert rights to materials developed without its support -- such as books and articles written without substantial university resources. Ms. Davey says on-line courses would probably be subject to case-by-case negotiations between the institution and the professors over how to split profits and control.
Such negotiations are typically associated with patent policies, and some institutions say they plan to approach course ownership in the same way they do patents. Some professors, however, argue that the patent model is a poor fit for on-line courses.
At Princeton, a committee on intellectual property initially suggested this spring that electronic courses fell under the existing policy for patents, just as computer software does. Under its patents policy, Princeton has the option of claiming ownership over intellectual property created with university resources.
That approach drew the ire of professors in the computer-science department. In an open letter signed by 14 faculty members, they argued that such a policy would give the university control over publication of all kinds of on-line materials that professors used in their courses. "We think the proposed policy has potentially far-reaching effects that will inhibit, rather than encourage, the production and dissemination of knowledge," they wrote.
William Happer, a professor of physics at Princeton and a member of the intellectual-property committee, says the panel made revisions in response to those concerns. It now suggests that the university create a new category -- separate from copyright or patent policies -- to cover on-line courses. The final policy is expected to be approved by the end of the calendar year.
Many professors say the most important issue is not ownership but control. Larry Press, who is a professor of computer information systems at California State University at Dominguez Hills, says he learned the risks of putting work on the Web the hard way. He and his students had created an elaborate Web site for the university's School of Management, where he teaches. One day in 1996, when Mr. Press tried to call up the site, he got a "file not found" message. Administrators had closed down the Web site and created a new one for the school -- a site that incorporated pieces of the one he and his students had created. He says he had not been consulted.
"Policies need to be put into place that protect the rights of the faculty and provide for due process in the case of questions and conflicts," Mr. Press says. Noting that his personal home page is still housed on a university computer, where administrators can delete or alter it, he adds, "I still feel vulnerable. A big part of my academic productivity is hanging out there, and it's vulnerable."
Universities say they, too, feel vulnerable. In the brave new world of technology-enabled education, scenarios are possible that could not have been imagined when professors wore black gowns to class and all students learned Latin.
"Universities may see some of their faculty developing software for other educational institutions, who in turn sell it, perhaps in competition with the home institution's programs," says Mr. Spanier, of Penn State.
Dan L. Burk, a law professor at Seton Hall University who has studied the issue, says it is important to engage all the interested parties. "The early adopters made some mistakes. Those were the universities who simply said, 'We own everything,' and who didn't actually consult the faculty."
Ultimately, suggests Mr. Crews, director of the Indiana copyright center, professors and administrators will have to sit down and negotiate. "I know that there is a real resentment that we have to deal with these issues at all," he says. "But we're just going to have to face the inevitable."
The extension program at the University of California at Los Angeles has become a lightning rod in the growing
Join the debate: When professors create on-line courses, or materials for distance education, who owns the intellectual property? The professors or their institutions?
Main article: "Professors and Universities Anticipate Disputes Over the Earnings From Distance Learning," 6/5/98
More daily coverage from our Information Technology section
The program, which boasts the largest selection of continuing-education courses in the United States, is known among faculty members for allegedly signing away instructors' rights by working with a private company to market distance-education courses. That's the story told widely by David F. Noble, a professor of history at York University (Ontario), who has attacked the program.
But the exact terms of the extension program's agreement remain unclear, and its administrators say they have been unfairly portrayed.
In 1994, the program signed a 10-year contract with the Home Education Network (THEN). The contract granted the company exclusive rights to distribute and market video recordings of U.C.L.A.'s extension courses. In 1996, the agreement was amended to include on-line courses as well. Last month, the company changed its name to OnlineLearning.net.
Last year, Mr. Noble, who is writing a book about instructional technologies, requested a copy of the contract. The legal language he saw seemed to confirm his worst fears, he says.
"At the heart of the THEN-U.C.L.A. deal is the crucial matter of copyright," Mr. Noble writes in a two-part article, "Digital Diploma Mills," that has been distributed on the Internet. According to the contract, he says, the extension program claims the rights to instructors' courses and transfers them to the company.
Officials of the extension program and of the company deny that they have ever claimed ownership of instructors' courses.
"The original agreement has been terrifically distorted by Mr. Noble," says Robert Lapiner, the university's dean of extension. For one thing, he says, the contract was intended to cover only recordings of lectures and speeches, not on-line materials.
And though the contract may appear to transfer rights away from instructors, he adds, in practice it does not. He consulted the university's lawyers, who assured him that the language was "standard."
"We would never compel our instructors to give away their rights," he says. "The only thing THEN owns is the right to distribute the class with us. They don't own any of the content."
But even Mr. Lapiner had some concerns about the wording of the original contract. "I'm not a lawyer," he says. "The language in much of what I sign sounds very worrisome to me."
That contract has since been replaced by a revised agreement that, according to officials, states the terms of the arrangement more clearly. Mr. Lapiner says the parties are now operating under the new terms, even though the agreement is still in draft form and is not available for review.
Meanwhile, some professors at U.C.L.A. have become concerned about the contract, even though it does not affect them directly; extension courses generally are not taught by regular faculty members.
Edward Condren, an English professor who is an expert on copyright, fears that the contract means that U.C.L.A. is moving away from traditional instruction.
"To many of us," he says, "this seems to be an attempt to complete the transition from education as we once knew it to a kind of supermarket of the mind, where you can push your basket down the aisle and pluck stuff in." He says he is also worried that administrators may try to claim the rights to materials in all university courses.
He and other professors have asked the university to let the faculty senate review the revised contract before it is signed. Dean Lapiner has agreed.
For their part, some instructors who teach the extension courses say they aren't worried about copyright issues. To them, the question of who owns their courses has a simple answer: They do.
"That issue," says one instructor, "has never been talked about, discussed -- nothing."
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Copyright 1998 The Chronicle of Higher Education, Inc.