INTELLECTUAL PROPERTY in ONLINE HIGHER ED
Implementing Online Learning in Higher Education:
Intellectual Property Issues and Solutions
Cynthia P. Lyons
University of Maryland, University College
OMDE 670
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INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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Abstract
Traditional face-to-face (F2F) universities are gradually adding more and more online courses
into their curricula. As these institutions develop online programs, administration and faculty are
at odds over who owns the course content. In the F2F learning environment faculty are
accustomed to have ownership rights and control over their works. However, adding online
courses changes the status quo. Research shows that institutions struggle with developing
effective intellectual property (IP) policies that satisfy the needs of the administration and the
faculty.
This paper begins by defining IP and its importance in university governance and explores the
history of IP. The discussion continues to explain how IP policies in F2F institutions are not
sufficient to address the uniqueness of the online learning environment. This paper also
examines the legal implications of an ineffective IP policy to the institution and to the course
creator. The results of the research show various forms of IP policies are in place today. Using
the guidance of scholarly publications and examining sample IP policies from various
institutions, the author presents recommendations for a F2F institution to consider when
developing IP policy for online learning.
Keywords: intellectual property, online learning, face-to-face
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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Table of Contents
Introduction
Focus of research
What is Intellectual Property?
4
5
5
Intellectual property and institutional context
5
The institutional challenge with copyright law
6
Figure 1: Schematic view of copyright law
7
Online course development
7
A schematic illustration of the law
8
Background and relevance
8
Literature Review
10
Intellectual property at traditional universities
10
Table 1: A Comparison of IP Policy Elements from a Select
Group of Institutions
11
Selected institutional policies
12
Table 2: Sampling of Traditional University IP Policy
12
Shared ownership model
13
Fair use
14
OERs and MOOCs
16
Analysis
Figure 2: Type of learning vs type of ownership
17
18
Recommendations
19
The scenario
19
Considerations and recommendations
19
Conclusion
21
References
22
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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Implementing Online Learning in Higher Education:
Intellectual Property Issues and Solutions
Introduction
As the demand for online learning continues to grow, the traditional brick and mortar
public universities are building curricula to include more online courses. Indeed, a look at many
state systems of higher education indicates that the institutions are in the midst of developing
online learning courses and programs. This method of teaching and learning creates new
challenges for the institutions. The leadership must decide where online learning falls within its
mission and strategic plan. In addition there are legal concerns over course ownership that need
to be addressed when developing online courses. Twigg (2000) emphasizes the importance of
developing a robust policy governing intellectual property to protect the institution and the
faculty. Extensive research shows a long history of academic freedom and the general practice
of faculty ownership.
Traditionally, faculty have enjoyed ownership rights for the works they create. For
example, a professor who uses his time to conduct research and to prepare instructional materials
is considered the owner of those materials (Springer, 2004). The institution does not control
faculty output, thereby granting faculty the freedom to express ideas, explore theories, and to
create works. According to Springer (2004) institutions refrain from influencing and controlling
faculty works so as not to inhibit creativity. In addition, institutions do not want to be held
legally responsible for their faculty’s work (Springer, 2004). Indeed, the American Association
of University Professors (AAUP) maintains that “faculty rather than the institution determines
the subject matter, the intellectual approach and direction, and the conclusion” (Springer, 2004,p.
3). Throughout the years of face-to-face instruction, universities have subscribed to this practice
set forth by the AAUP. However, as universities develop online learning, they face several
problems with existing intellectual property (IP) policies.
One of the many issues to address in IP policy is deciding who owns the course content.
Since creating an online course is a collaborative effort between faculty and information
technology staff and requires substantial resources, institutional administration argues that the
course content should belong to the institution. This issue determines who has the right to
distribute, sell, or transfer the course content. The institution wants to control the content so that
the faculty member does not sell it or otherwise share it with another institution. However,
faculty members argue that they want to retain ownership rights to prevent unauthorized
modifications to their works by the institution (Springer, 2005). In addition, Twigg (2000) states
that a faculty member investing significant time and labor into developing an online course,
resents the institution reassigning that course to another instructor in the future.
Personal experience and research show that course ownership is a contentious issue
between administration and faculty in online course development. Many traditional institutions
find it difficult to implement online learning into their curricula because faculty are accustomed
to having physical control of course materials they develop. This research project explores the
impact of intellectual property and copyright laws on gaining faculty acceptance to online
learning at traditional institutions of higher education. Online learning changes the traditional
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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landscape and opens up the possibilities for unauthorized marketing, duplication, and distribution
of online course content (Levy, 2003). Moreover, Levy (2003) asserts that faculty are
considered employees and therefore their works are owned by the employer. This battle between
institutional administration and faculty over who owns the course content rages on as institutions
struggle to develop IP policy that satisfies both parties. After conducting extensive research, the
author presents considerations leading to possible solutions to support faculty acceptance for
online learning. While it is up to the institution to develop its IP policy, research shows that a
comprehensive policy that fits the institution’s mission and goals is most effective (Twigg,
2000). A customized policy that addresses IP as scholarly works in the traditional sense, yet
provides value to the institution in the online learning market, is desirable.
Focus of research
Using literature available on the Internet and personal experiences, the author examines
intellectual property (IP) issues and how they are addressed in institutional IP policies. Literature
also explores the challenges in traditional universities and issues concerning IP when attempting
to implement online courses into face-to-face (F2F) learning environments. In addition, the
author relates personal experiences and observations at a public university currently in the throes
of implementing formal online learning policies and procedures.
This paper is not intended to settle any arguments over who owns the content or to
interpret the legal context in policies. The goals of this paper are to emphasize the importance of
addressing the intellectual property issue and to suggest possible solutions. This report begins
with defining intellectual property, its application in academe, and proceeds to discuss
background and relevance in online learning. After understanding how IP relates to online
learning, the author examines literature discussing the challenges of IP and strategies for
addressing these challenges. Using the information provided in the literature review, this paper
describes scenarios found in research and relates personal experiences. The paper concludes
with recommendations for writing IP policies. The next section begins the journey through the
complex maze of IP by defining IP and how it relates to online learning.
What is Intellectual Property?
Intellectual property and institutional context
According to Merriam Webster (n.d.) intellectual property (IP) consists of works or
property created by the mind. The creator of such works is entitled to protection from
unauthorized copying and distribution of intellectual property. Article 1, Section 8 of the U.S.
Constitution states that Congress has the power “To promote the progress of science and useful
arts, by securing for limited times to authors and inventors the exclusive right to their respective
writings and discoveries” (Cornell University Law School, n.d.). Thus, creators and inventors
may copyright, patent, or trademark their works. While IP covers copyrights, patents, and
trademarks, the scope of this paper is limited to copyright and ownership issues.
In academia there is a stipulation called the “doctrine of fair use”, that permits limited
educational use of copyrighted works. The doctrine of fair use asserts that teachers and students
may use copyrighted works as references and examples for support if properly cited (U.S.
Copyright Office, 2012). Moreover, to add complexity to the IP issue, there is also a face-to-face
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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teaching exemption in the United States Code that applies in traditional face-to-face settings
(Towson University, 2002). That exemption states that copyrighted written works may be used
in a nonprofit face-to-face instructional classroom. However, audio and video presentations are
not exempted if the copy was acquired without permission (Towson University, 2002). Another
prevalent concept in the law is the work-for-hire arrangement. The U.S. Copyright Office (2012)
states, “If a work is made for hire, an employer is considered the author even if an employee
actually created the work. The employer can be a firm, an organization, or an individual” (p.1).
Understanding the three concepts, fair use, the teaching exemption, and work-for-hire are critical
to developing an IP policy. It is often these concepts that are used by the courts, institutions, and
individuals when defending a position. This paper covers some of the legal decisions that focus
on ownership and are still argued today. Because the law is vague in the academic arena due to
fair use, the teaching exemption, and work-for-hire, institutions struggle with who owns the
course materials.
The institutional challenge with copyright law
Institutional policies are written to guide employees in making decisions and for
developing business practices. However, policies cannot be written without regard to regulations
and the law. Institutions typically follow an established protocol for developing policies. For
example, a university that is part of a state system develops its policies using the system-wide
policies for guidance. The policies must also adhere to federal, state, and local laws, regulations,
and policies (University of Minnesota, 2013). In the case of intellectual property ownership at
universities, the law is very vague and often subject to interpretation. In order to understand the
critical nature of ownership, consider the evolution of today’s copyright law.
As previously stated, the Copyright Act was first enacted to provide authors and
inventors exclusive rights to their works (Cornell University Law School, n.d.). However, the
law has been revised several times since it was passed in 1790. In 1909, the work-for-hire
concept was added to provide consideration for employers. This concept introduced the practice
that authors had to share their privileges with their employer (Cornell University Law School,
n.d.). However, subsequent legal proceedings established that faculty are an exception to the
work-for-hire doctrine. In the case of Williams v. Weisser, the court ruled that faculty are not
considered work-for-hire because their created works evolve as they continue in their teachings
and research. The case documents refer to faculty as transient, moving from one institution to
another. If they were to lose their rights to their creations, they would have to change topics or
start all over again (Justia, 2013). The judge in this case ruled in favor of the professor, thereby
establishing legal precedence for the practice of excluding faculty from the work-for-hire
doctrine set forth in the 1909 revision to the Copyright Law.
In 1976 the law was revised again in an attempt to clarify work-for-hire arrangements
(Loggie, Barron, Gulitz, Hohlfield, Kromrey, & Sweeney, 2007). However, the 1976 revision
does not clearly state where faculty fall within the work-for-hire doctrine. Consequently, the law
is subject to multiple interpretations. According to Loggie, et al. (2007), legal proceedings in the
late 1980s continue to recognize the faculty exception to the work-for-hire doctrine even though
faculty are not referenced in the 1976 revision. Because faculty have been exempted since 1909,
and nothing in the 1976 revision suggests that this practice should terminate, it appears that
faculty retain ownership rights to their works (Loggie, et al., 2007). One can easily understand
the dilemma because the law is not clear on IP ownership. Some argue that the law does not
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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clearly state that faculty are exempt; while others argue that the law does not clearly state that
faculty are not exempt. Since the generally accepted practice since 1909 is that faculty are
exempt, it would appear that the faculty possess ownership rights. However, online course
development presents a uniqueness that facilitates a review of existing practices. The following
diagram illustrates the law and the division of faculty and administration on two critical factors.
U.S. Constitution - 1788
Authorizes the proliferation and security for
original works
U.S. Copyright Law - 1790
Provides for the protection of copyrightable
works.
Fair Use Doctrine
Work-for-Hire
Faculty Position:
Institution’s Position:
Faculty Position:
Institution’s Position:
Institution cannot
apply the fair use
doctrine and
disseminate the
faculty’s work to an
unlimited audience at
the institution’s will.
Under fair use the
works are used for
educational purposes
with proper credit
given to the creator
and can be used at
the institution’s
discretion.
Faculty are exempt
under the law.
Created works belong
to the faculty
member.
Course developers
are employees under
the direction of the
institution. Their
work belongs to the
institution.
Figure 1. Schematic view of copyright law. This diagram illustrates the complexities of IP
discussed thus far.
Online course development
Web-based instructional design introduces a myriad of learning elements that the F2F
instruction lacks. As stated earlier, online course development is a collaboration between
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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faculty and staff personnel. Wang and Gearhart (2006) contend that an instructional design
team is needed to develop an online course. The instructional content, technological aspects, and
now the legal components must all come together to produce a dynamic learning environment
that utilizes synchronous and asynchronous tools, provides for data storage, promotes
collaborative learning, and provides the tools needed for assessment and feedback (Wang &
Gearhart, 2006). This joint effort between faculty and staff complicates the application of IP
policy. Faculty enjoy the exemptions afforded to them under legal precedence; but, staff fall
under the work-for-hire doctrine (U.S. Copyright Office, 2012). In addition, the institution
provides substantial resources to create online courses in the form of salaries, equipment,
consulting, marketing, and other costs. Therefore, it is not unusual for an institution to challenge
a faculty member’s claim to online course content.
Now that online learning is becoming a booming economic activity, faculty and
institutions are at odds on who owns the content. Institutional policy must address who owns
works created by employees using institutional resources. According to Springer (2004),
traditional institutions typically adopt a policy similar to a corporate policy. Please note that for
the purposes of this paper, “traditional institutions” refers to brick and mortar universities
offering F2F courses and programs. Research shows that these traditional institutions specify that
if works are created as part of the employee’s job, primarily using organizational resources, then
the organization owns the property. Towson University represents a traditional university.
Towson University’s (2002) IP policy states:
University owns all rights in copyright of technology-mediated materials produced by
non-faculty Personnel within the Scope of Employment. University shall have the right
to use, adapt, reproduce, transmit, distribute, perform and/or display for research and
educational purposes any technology mediated instructional materials it has provided
resources, whether such materials are owned by the University or Personnel. (p.9)
As this paper progresses, the reader will understand the implications of this policy. This
policy attempts to address the staff (i.e. “non-faculty Personnel”) contribution to the online
course development. It also provides relief for the institution in the second statement granting
rights to the institution for works developed using institutional resources. It appears that faculty
lose their rights in online course development. This is the crux of the problem. The next section
provides some background on ownership issues in academia.
Background and relevance
According to Sheehy (2013) the number of students enrolled in online courses continues
to increase at a steady rate. Schools recognize this increasing demand and anticipate adding
more online courses to their curricula (Sheehy, 2013). The author of this paper participated in
developing online policies and procedures at a traditional public university. The most
controversial issue was ownership. Several committee meetings ended in a stalemate over
intellectual property issues. University administration asserts that course content is the property
of the institution, while faculty argue that course content belongs to the creator. Indeed, faculty
are granted academic freedom and should not be subject to organizational controls over their
works (Springer, 2005). However, university administration argues that faculty are employees
using university resources, and subject to the same policies as staff employees (Kranch, 2008).
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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Experience and research show that ownership is a critical factor to address when a
traditional institution develops formal online learning policies and procedures. The author
served on the online workgroup whose goal was to develop a strategic plan for building an online
program at the university. During several meetings faculty expressed concern over course
material ownership. Existing faculty accustomed to classroom lectures stated that they refuse to
sign over online course content to the university. They argued that in a traditional classroom,
they have physical control over the content, but with online learning their works are stored
indefinitely, subject to access by other instructors. Faculty feel that since they put their time and
labor into creating the course, they do not think it is acceptable for other faculty to deliver or
modify the content. Because ownership turned out to be such a contested subject, the workgroup
decided to revisit its plan and address the IP issue much sooner than originally anticipated.
Consequently, the IP debate interrupted the momentum of the online workgroup’s progress and
now requires substantial consideration and changes to existing IP policies.
To add to the importance of IP policy, the online workgroup discovered that in some
cases faculty develop online courses on their own without entering into a work-for-hire
agreement. That is, they do not receive additional compensation for their work and have not
officially acknowledged that the university owns the online course content. They simply decide
they want to create an online course as a contribution to the institution. This creates a scenario
where faculty deliver online courses that have not gone through a formal process and
determination of ownership. Thus, having not signed a work-for-hire agreement, these faculty
are free to take the course materials with them if they should leave the institution; or, they may
use the content at other institutions. The institution does not have recourse in these situations
where no agreements have been executed. Therefore, a traditional institution must perform a
reconciliation of online course offerings to the work-for-hire agreements on file. In other words,
faculty cannot develop an online course without agreeing to a work-for-hire arrangement. The
online workgroup discovered that most tenured faculty will not agree to grant the university
ownership rights to their online course content. What appears to be a stalemate between the
institution and the faculty may be resolved by establishing clear policies on intellectual property
to govern online courses. It may even be necessary to create separate policies, one overarching
policy that pertains to the institution as a whole and then a section that relates specifically to
online learning. In addition to today’s challenges, the IP policy must consider future
developments in online learning.
Another topic for the online workgroup discussion centered on massive open online
courses (MOOC) and open educational resources (OER). These topics will be explored later in
this paper because there is evidence that institutions are exploring the increased use of open
courseware (Domonell, 2013). Therefore, this paper would not be complete without examining
the potential for MOOCs and OERs at our traditional institution. If the institution were to
develop an IP policy that did not consider these futuristic goals, the institution risks additional
pushback and unresolved issues. This would result in the laborious task of rewriting the IP
policy again.
Research shows that institutional intellectual property policies vary. For example, the
University of Maryland University College (UMUC) is a public online institution and their
policy states that instructors own the content, but the institution has the right to use it in online
courses taught by the creator (UMUC, 2002). However, Towson University (TU), a traditional
institution in the same state system as UMUC, does not specifically address the online course
content created by faculty. TU uses a work-for-hire contract where faculty sign over their rights
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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to the institution (Towson University, 2002). The University of Missouri System (UMS, 2012)
offers a typical example of IP policy. According to the UMS (2012) if the faculty is paid to
create an online course and uses significant university resources, the university owns the course.
Research shows that many universities adopt this corporate style approach to IP.
Examples include the University System of Maryland (2009), the University System of Missouri
(2012), and Harvard University (2010). However, the American Association of University
Professors (Springer, 2005) contends that even though the institution owns works created by
employees, instructors own their course materials, syllabi, and other items. It appears that
existing institutional policies are sufficient in face-to-face settings because instructors can
physically control access to their course materials. However, the increasing use of digital media
and the Internet adds efficiencies to the storage and distribution of information, thus making
existing policies ineffective.
According to Twigg (2000) prior to digital media and the Internet, universities did not
have to worry about instructors marketing digitized course materials. Using technology, today’s
instructors can package their works created for a course at one institution and sell it to another.
Furthermore, the increasing numbers of private for-profit universities, such as the University of
Phoenix, Strayer University, and others, increases the probability for these business transactions.
From an accounting and business perspective, the author recognizes the potential for using
University A’s resources to create a course and selling the course to University B. To further
complicate this arrangement is that University A could be public-funded and University B may
be a for-profit institution. Taxpayers balk at public funds used for profit-making endeavors
(Kranch, 2008).
Using literature available on the Internet and personal experiences, the author examines
institutional policies on intellectual property (IP) in traditional universities and issues concerning
IP when traditional institutions attempt to implement online courses into their face-to-face
curricula. Research also includes open education policies on IP as a basis for comparison and for
building a model. In addition, the author relates personal experiences and observations at a
public university currently in the process of implementing formal online learning policies and
procedures.
Literature Review
This section examines the literature on intellectual property policies in higher education. The
literature reveals that there are three models in place. For the purposes of this research project,
the author identifies these three models as follows:
1. Faculty Ownership (FO) – the creator owns all content on the basis of academic
freedom
2. Institutional Ownership (IO) – the institution owns course content on the basis that
the creator is an employee who created the work using substantial institutional
resources, and/or the work is created as the primary function of that employee’s job
3. Shared Ownership (SO) – neither the institution nor the faculty owns exclusive rights
to the materials and any use must be agreed upon by both parties
The next section examines the most common model at traditional universities, the IO model.
Intellectual property at traditional universities
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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Recall that for the purposes of this paper, traditional universities are institutions
established to deliver courses using a face-to-face format (F2F). As stated earlier, these
institutions are in the process of adding online education to their existing curricula. At
traditional universities the existing faculty are accustomed to owning their course materials and
therefore do not want to abide by the IO model. According to Loggie et al,. (2007) typical
university policies state that the university owns course materials that are created using
substantial university resources and/or as a work-for-hire status. Their study also shows slight
differences in public and private institutional policies. For example, private universities are
more likely to incorporate work-for-hire agreements into faculty hiring contracts, are more
stringent defining substantial resources than public universities, and more likely to recognize
academic freedom than public universities (Loggie et al., 2007).
Loggie et al. (2007) illustrate how institutional IP policies have developed or changed
between 1992 and 2005. The following table extracts some of their findings produced from their
sample of “42 Carnegie Doctoral Research-Extensive universities that consisted of 28 public
universities and 14 private universities” (p. 113).
Table 1
A Comparison of IP Policy Elements from a Select Group of Institutions
Policy Element
1992
2005
U owns works created with any
0
36%
university resources
U owns works created with substantial
60%
74%
university resources
Policy defines substantial university
23%
57%
resources
U has separate policy or section for DE
0
21%
U claims ownership of courseware or DE
0
36%
materials
U claims joint ownership
26%
26%
U requires work-for-hire agreement to be
0
24%
signed before work begins
Policy addresses faculty rights to use
0
24%
materials for nonprofit educational
purposes
Policy contains undefined terms,
0
38%
inconsistencies or vague language
Note: This table shows the percentage of sampled institutions that included the stated policy
element in their IP policy. For example, none of the institutions claimed the university owns
works created with any university resources in 1992. However, in 2005 36% of those sampled
claimed ownership.
The research performed by Logge et al. (2007) is subject to limitations and interpretation.
However, the important information here is the evidence that in a mere thirteen years
institutional IP policies underwent significant modifications. Another important factor to
consider is the institutional status.
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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University of Michigan’s Assistant General Counsel Jonathan R. Alger (2002) cautions
traditional institutions on their IP policies and agreements. According to Alger (2002) non-profit
universities must consider their status and reputation when entering into agreements for online
course development. As noted earlier in this paper, the marketability of online course content is
on the rise and nonprofit institutions must be cautious in how the owner of that content, whether
it is the institution or the faculty, distributes the content.
Selected institutional policies
In this section the author presents her own research into selected traditional institutional
IP policies. The following table lists examples of traditional university policies on intellectual
property.
Table 2
Sampling of Traditional University IP Policy
Institution
Ownership
Notes
Boise State
Boise State
Work-for-hire
Harvard
Shared
When using substantial resources, an agreement to
University
address sharing ownership should be executed
Indiana
Both
Scholarly works owned by faculty.
University
Substantial resources owned by institution.
Towson
Towson
Substantial resources, Work for hire
University
University
University of
University of
Works created using institutional resources belong
Florida
Florida
to the institution.
University of
Both
Commissioned works and works created under an
Minnesota
employment agreement are owned by the institution.
However, the institution and the faculty member
may enter into an agreement granting ownership to
the faculty.
University of
University of
Substantial resources, Work for hire
Missouri
Missouri
University of
University of
Substantial resources
Texas
Texas
Examining institutional policies is an arduous task because not all policies are written
alike. To illustrate the confusion interpreting IP policies, consider the policies at two
institutions, Boise State University and Towson University. Boise State University (BSU) is a
research institution with approximately 23,000 students enrolled in undergraduate and graduate
programs. In 2009 BSU updated its intellectual property policy to accommodate online learning
initiatives at the university. BSU now offers 21 fully online programs through its eCampus
division. BSU’s policy follows other such policies in that course content may not be “leased,
sold, or transferred” without BSU’s permission (p.1). Furthermore, BSU retains ownership to
the content and the language in the policy reads, “…this list [of rights] should not be considered
to include all of the rights reserved to the university” (p.1). These statements indicate that BSU
retains ownership and uses the IO model defined page 10 of this paper. Moreover, BSU is clear
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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that the faculty member must obtain university permission to use the course content in a setting
other than BSU. However, the faculty member is fully responsible for “the substantive and
intellectual content of the course materials, both at the time of their production and in subsequent
uses” (p. 2). Also, the faculty member is fully responsible for “maintaining, the content for
accuracy, currency, and clarity of presentation throughout its use at Boise State” (p. 2). BSU’s
policy addendum in 2009 appears contradictive to the initial policy. The addendum states that
faculty are required to manage the online content, yet are not given ownership rights to the
materials. This addendum is really no different than the original policy which follows the
corporate approach. BSU’s solution to updating its existing policy hardly seems like an
acceptable solution to faculty.
Towson University is a public institution with approximately 22,000 students enrolled in
undergraduate and graduate programs. Towson University (TU) is a traditional university with
some resident students, but mostly commuter students. TU is just beginning its journey to
develop an online learning division, somewhat like BSU’s eCampus. Towson has yet to update
its existing IP policy, but the current policy is just as confusing as BSU’s. Essentially TU’s
policy follows the IO model. Moreover, TU states that the university has the “right to use, adapt,
reproduce, transmit, distribute, perform and/or display for research and educational purposes any
technology mediated instructional materials for which it has provided resources, whether such
materials are owned by the University or Personnel” (p. 10). Furthermore, ownership of
materials “used in creation…remains unchanged” (p. 10). This policy is open to interpretation of
what “remains unchanged” means.
The author’s research into institutional policies reveals an issue in transparency. Policies
lack clear definitions for terms such as “substantial resources”. Indeed, looking back to the table
on page 11 the research by Loggie et al. in 2007 shows that only 57% defined “substantial
resources”. Today’s research still shows that IP policies are not clear on what “substantial
resources” means. The author’s research also reveals that some institutions use a shared
ownership model. This appears to be a compromise to satisfy both parties. The next section of
this paper explores the literature on the shared model.
Shared ownership model
Table 2 on page 12 shows circumstances where the institution establishes a work-for-hire
arrangement with the faculty by paying additional compensation to create an online course.
However, recall from earlier discussion that the court rules in favor of faculty under work-forhire arrangements. Institutions therefore require the faculty member to sign a work-for-hire
agreement which transfers ownership of the course to the university in return for additional
compensation. Faculty, however, retain the right to teach courses they develop as long as they
remain employed at the institution. Some traditional institutions impose the restriction that
prohibits them from reproducing the online course at another institution. According to the
Education Advisory Board this restriction is difficult to enforce ([EAB], 2009). However, issues
arise when the course content contains videos or other works that are unique to that instructor
(EAB, 2009). Specifically, if the instructor’s presence in the digital or written resources is
significant and the content would change if the instructor were no longer teaching the course, the
EAB recommends updating online course content when the instructor changes (2009).
The EAB’s study shows some variance in this shared policy structure. For example, one
institution’s policy states that the university owns the online course content, but the faculty may
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
14
use the content for academic purposes, such as a “conference, article, or book” (2009, p. 6).
Another institution allows the faculty to transport course content to another institution, while yet
another’s policy prohibits this action (EAB, 2009). To further elaborate, some institutions
establish monetary thresholds for what constitutes “substantial resources”. For example, one of
EAB’s participants states that using less than $5,000 in university resources is not substantial and
therefore the works belong to the faculty member; resources amounting to between $5,000 and
$10,000 result in a shared ownership relationship; and, anything over $10,000 is considered to be
substantial and belongs to the university (p. 8). The author of this paper notes that establishing
these monetary thresholds could potentially result in situations where the creator (or institution)
may manipulate the numbers to achieve a desired outcome. For example, the creator and
institution may not agree on what constitutes the online course development cost, particularly if
shared resources must be allocated among different projects. One of the parties may move costs
to another project so that the online course falls within a desired cost range, thus benefitting
either the faculty or the institution.
An excerpt from the EAB’s study reveals some of the following variances:




Faculty may or may not have sole rights to teach the course at the host institution
After the faculty member leaves the institution, the university may or may not retain the
right to offer the course with another instructor
Should the institution retain the right to teach the course after the creator’s departure, the
institution may do so with or without consent from the creator
Some institutions allow faculty liberties in what they take to another institution, while
others strictly prohibit this action
Despite these variations all of the participants in the EAB’s study agree on the work-for-hire
arrangement for online course developers. This model appears more conducive and flexible for
addressing traditional institutions. Since this model covers the work-for-hire issue, further
research is required to understand what happens with the doctrine of fair use. The next section of
this paper explores fair use.
Fair Use
Recall from earlier discussion that fair use is one of the three critical components to
address in IP policy. This section explores the literature and details of fair use and its application
in IP. Implementing online learning into the traditional F2F institution requires substantial
considerations with regards to intellectual property. According to Levy (2003) the doctrine of
fair use adds more complexities to the copyright issue. What is fair use?
According to Section 107 of the U.S. copyright law (U.S. Copyright Office, 2012):
Section 107 contains a list of the various purposes for which the reproduction of a particular
work may be considered fair, such as criticism, comment, news reporting, teaching,
scholarship, and research. Section 107 also sets out four factors to be considered in
determining whether or not a particular use is fair.
1. The purpose and character of the use, including whether such use is of commercial nature
or is for nonprofit educational purposes
2. The nature of the copyrighted work
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3. The amount and substantiality of the portion used in relation to the copyrighted work as a
whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Interpreting the law can be complex and precedence plays an important role in deciding what
constitutes fair use (Levy, 2003). If common practice in F2F institutions was to grant ownership
to F2F faculty as indicated earlier in this paper, how can the institution expect to apply the fair
use doctrine with regards to online learning? Indeed, this is unchartered territory for many F2F
institutions.
The fair use section of the diagram on page 5 is included here for easier reference.
This diagram shows the division between faculty and administration with regards to fair use.
In addition to the issue stated in the diagram, faculty and administration must determine what
falls under fair use. Levy (2003) asserts that the fair use doctrine was intended to apply in
situations where there was some control over the distribution of information (such as a F2F
environment). The online environment creates the possibilities of unauthorized duplication and
distribution of content, thereby violating the fair use doctrine. Looking back to item number four
of the fair use doctrine on the previous page, the distribution of online course content that
initially complied with the fair use doctrine may no longer meet the guidelines for fair use. For
example, a professor uses content that meets the definition of fair use in his online course and the
professor works for an institution that grants the faculty permission to reuse the course at another
institution. The professor decides to reuse this course at a private institution. The content no
longer qualifies as fair use under item number 4 on page 14 because the content is now being
used for profit. The importance of re-visiting fair use in this section is to reinforce the legal
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
16
implications and issues that can arise when an institution grants permission to faculty to reuse
online course content. Another growing concern in ownership involves open educational
resources (OER) and massive open online courses (MOOC).
OERs and MOOCs
This section examines intellectual property policies in OERs and MOOCs because there
is evidence that traditional universities are considering using OER to supplement existing
courses. For example, the University of Maryland may use OER to replace commercial course
content (Fredette, 2013). The Open CourseWare Consortium website provides a current list of
members who support the use of OERs at their institutions. However, using OERs and MOOCs
is not without controversy. Currently San Jose State University is amidst a contested battle over
incorporating MOOC material into its course content. Specifically, the president of the
institution desires a partnership with MOOC providers in order to enhance its curriculum. But
the faculty resent having to include open courseware into their course materials. They want a
policy that forbids the university from entering into third party provider contracts without the
consent of the faculty (Kolowich, 2013).
Research shows that adding MOOCs to the traditional institution’s profile requires
additional consideration when writing IP policy. It is important to consider MOOCs in this paper
because if the institution is planning to incorporate MOOCs, the policy makers need to know the
implications surrounding IP policy. With the rapidly changing online learning environment, it is
inefficient to develop an IP policy without knowledge of MOOCs. Failure to recognize MOOCs
could lead to a policy that could potentially be obsolete even before it is implemented.
MOOCs are typically entrepreneurial in nature and designed to deliver information to a
global audience (Person, Terrell, & Wessell, 2013). Therefore, the question of who owns the
content gets blurred. Recall that in a work-for-hire agreement the employer establishes an
employer-employee relationship with the course creator, the creator is paid additional
compensation, and the institution assumes ownership of the course content. In an MOOC
arrangement the MOOC provider contracts with the institution to provide the mechanism to
deliver that course to a global audience. To illustrate the transaction, consider this hypothetical
example:
1. Professor Smith designs a math online course for ABC University.
2. ABC University contracts with MOOC provider, Global Institute.
3. Global Institute offers the course freely to some students but some students pay fees to
Global to receive a certificate for taking this course.
4. ABC’s contract with Global states that ABC is to receive 10% of the revenue from the
course.
What happens to Professor Smith? ABC could decide to share the revenue with Professor
Smith; but, Professor Smith may no longer teach at ABC; or, Professor Smith may not be
eligible to receive additional salary because she has already reached the maximum salary
allowed for her rank.
This scenario reveals two issues:
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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1. Professor Smith signed over her rights to a course that she could have developed on
her own and marketed herself.
and
2. ABC University is now making a profit in a venture that potentially violates ABC’s
nonexempt status.
Both of these issues are beyond the scope of this research paper, but are important to note
because IP policy dictates who owns the content. One possible alternative is to use the Creative
Commons license. According to Hylén (2006) the Creative Commons license provides a means
for openly sharing information, yet the author retains some rights. Another driving force for IP
is the TEACH Act. The TEACH Act states that online materials may be used for educational
purposes for nonprofit educational organizations (Pierson, Terrell, & Wessel, 2013). Since
Coursera, edX, and other MOOC providers are not considered educational organizations and
they operate for profit, the TEACH Act does not protect the distribution of online course content
through an MOOC arrangement (Pierson et al., 2013). Therefore, existing IP policies appear to
be ineffective for institutions seeking to contract with MOOC providers. This is all the more
reason to research and understand IP issues when developing policies. Pierson et al. (2013)
describe the reverse scenario in their study. Suppose the faculty member decides to use MOOC
provider material at the institution? Let us have another look at the Professor Smith example.
Consider the reverse case using the same characters as in the previous example.
1. Professor Smith creates an MOOC for ABC University to be delivered by MOOC
provider Global Institute.
2. She decides to use some resources owned by Global.
3. She then decides to use some of her MOOC content in her online course at ABC
University.
4. Because the MOOC content includes resources she would not have access to without
ABC’s contract with Global, she is not authorized to use Global’s materials in her
online course.
Finally, there is research evidence that emphasizes the growing concern for public-funded
institutions to operate more efficiently. Using OERs and MOOCs may improve efficiencies and
reduce costs, but the risks may outnumber the benefits. Furthermore, research shows that some
constituents believe that using public funds to create intellectual works should result in sharing
that information openly with the public (OER IPR Support, 2011). Indeed, as noted previously
in the University of Maryland and San Jose State University examples, there is movement among
public institutions towards OER and MOOCs. The information provided thus far provides the
basis for the author’s analysis and recommendations.
Analysis
This section begins with a review of the progression of instructional methods and
ownership discussed in this paper. The illustration below shows that our traditional institution
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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began with F2F learning and faculty ownership and is moving towards OER.
A. Face-to-Face
• Faculty Ownership
B. Online
• Institutional Ownership
C. Open
• Shared Ownership
Figure 2: Type of learning vs type of ownership. This figure depicts the change in relationship
between the type of learning and the ownership.
Point A in the diagram represents the beginning of the traditional institution. Recall the
three important concepts discussed on page 6: fair use, the F2F teaching exemption, and the
work-for-hire doctrine. As movement occurs towards Point B, ownership begins to change. In
1999 the AAUP issued the following Statement on Copyright:
Within that tradition, it has been 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 initiative for traditional academic purposes. Examples include class notes
and syllabi; books and articles; works of fiction and nonfiction; poems and dramatic
works; musical and choreographic works; pictorial, graphic, and sculptural works; and
educational software, commonly known as “courseware.” This practice has been
followed for the most part, regardless of the physical medium in which these “traditional
academic works” appear; that is, whether on paper or in audiovisual or electronic form.
As will be developed below, this practice should therefore ordinarily apply to the
development of courseware for use in programs of distance education.
The AAUP began to assert faculty rights 14 years ago and the issues are still contested today. At
Point B institutions began asserting their claims to course content due to invested resources and
potential marketability. In order to secure rights to the online course content institutions
implement work-for-hire agreements and pay additional compensation to faculty who develop
online courses. Some institutions grant the faculty permission to use the course at other
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
19
institutions. As the movement occurs towards Point C, ownership begins to take on a shared
profile. Indeed, research shows that IP policies are becoming more detailed, outlining the
various rules, practices, and limitations associated with the various scenarios that occur.
Research literature abounds in IP issues, policies, and considerations. In order to establish a
direction for the traditional institution, it is necessary to establish the starting point. The next
section of this paper details the case scenario and provides the author’s recommendations.
Recommendations
The scenario
The following scenario is representative of many public-funded traditional institutions.
State University (a fictitious name) is a traditional institution offering F2F learning to
approximately 22,000 students. There are some existing online courses, but there is no formal
online course development process in place. In addition, the intellectual property policy follows
the IO model with regards to online courses created using the work-for-hire agreement.
However, it is discovered through the catalog that there are several online courses offered where
no work-for-hire agreements exist. The absence of agreements occurs because the creators are
not aware of the work-for-hire agreement; or, because the creators intentionally circumvent the
work-for-hire arrangement in order to retain ownership rights to the content. State University
(SU) is in the process of developing a formal online course division to oversee online course
development, delivery, maintenance, and other practices. In order to develop this new division,
SU must revise its existing IP policy. Existing faculty who will create the online courses resist a
policy that transfers ownership to the institution. Considering the research presented thus far,
there are several possible solutions to SU’s dilemma. According to OER IPR Support (2011),
the policy makers must begin with the institutional mission, or else they risk developing an
ineffective policy unable to support the faculty and the institution. The proposed solution begins
with SU’s mission and strategic plan. The following considerations developed by the author are
the result of research and experience.
Consideration 1
SU’s mission is to increase its online course offerings to provide learning access to
regional students who cannot attend F2F classes; to provide online learning opportunities as an
option for all students; and to increase its market presence among area institutions by
diversifying its course delivery options. SU’s strategic plan is to increase its student population
to 30,000 over the next five years and believes that offering online courses will help to achieve
that goal.
Recommendation
SU is committed to increasing its online course offerings and increasing its student
population by 20% over the next five years. Therefore, the new IP policy should include
stipulations to accommodate the identified trends, such as MOOCs and open courseware. The
policy can be written in sections pertaining to the various types of scenarios.
Consideration 2
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The author recommends that SU consider its prior activities with respect to how much
course development is anticipated. Since SU is continuously developing programs to meet the
demands of area employers and to remain competitive, this indicates a need for an IP policy that
addresses a considerable volume of cases.
Recommendation
The author recommends a policy that clearly states the variables and who owns what and
under what circumstances the materials may be distributed with or without consent. This will
reduce the risk of noncompliance and the possibility for an overwhelming number of exception
requests.
Consideration 3
According to OER IPR Support (2011), SU should examine the extent of third party
engagements. Since SU is public-funded, it wants to minimize risk and exposure related to third
party agreements. However, SU is part of a statewide higher educational system and other
institutions within that system are moving towards using MOOC arrangements.
Recommendation
At this time SU does not have the resources to deliver a MOOC and would not be able to
support a MOOC without backfilling a full-time faculty position. Nevertheless, the new IP
policy should include a section on MOOCs to demonstrate SU’s position on ownership and to
provide recourse for the institution in the event a faculty member creates a MOOC.
Consideration 4
Legal counsel must be a part of the policy development. Considering the ambiguities in
the Copyright Law concerning work-for-hire, case precedence, and the confusing language
evident in TU and BSU policies, it is imperative that SU counsel provide up-to-date guidance on
IP law and practices throughout the policy development.
Recommendation
SU must establish from the beginning the degree of IP expertise it has in house. The
author recommends engaging an outside consultant to examine the IP policy for accuracy,
completeness, currency, relevance, and transparency. Considerable research indicates a
significant lack of understanding with IP issues and policies.
Consideration 5
SU employs various types of faculty, including tenured, tenure track, non-tenure track
full-time, part-time, and adjunct faculty. The IP policy should clearly state how the policy
applies to all types of faculty.
Recommendation
Since each type of faculty requires a specific faculty contract, the faculty contract should
refer to the IP policy and the signing of the contract indicates that the faculty member also agrees
to the IP policy.
Consideration 6
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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Consider the marketability of online course content and to what degree the institution or
the faculty may take liberties in selling or transferring the content.
Recommendation
Develop specific guidelines for the distribution of online content and clearly state that the
contents may not be used to generate profit. In addition, the policy must outline the penalties
imposed for the unauthorized distribution of proprietary materials.
Consideration 7
Existing policies are laden with ambiguities and are difficult to navigate.
Recommendation
Write the policy in a format that includes definitions, links, indexing, and other methods
that allow stakeholders to jump to relevant sections. Make sure that legal counsel, academic and
administrative staff review the policy for clarity.
Conclusion
After researching intellectual property issues and the various types of policies in place, it
is evident that there is not a specific template that fits every institution’s needs. However, the
lack of a suitable one size fits all model does not preclude the institution from performing its
duty to ensure the protection of the institution and its employees, including faculty. Policy
development does not happen quickly, but requires careful consideration and dedicated
resources. As policies expand to include more circumstances and details, policy makers can use
links, tags, and indexing to organize the policy content. The recommendations presented in this
report address IP issues and concerns that a traditional institution experiences in developing
online courses. Research and experience show that the policy should be a shared model to
accommodate the needs of both the institution and the faculty. This may require mediation and
discussion between the administration and the faculty, but it is important to develop a policy that
is sustainable and enforceable.
INTELLECTUAL PROPERTY in ONLINE HIGHER ED
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