Policy Characteristics and Best Practices Kimberly Bonner, Esq. And Kimberly B. Kelley, Ph.D. University of Maryland University College Center for Intellectual Property ( Copyright Kim Bonner and Kim Kelley (2002). This work is the intellectual property of the authors. Permission is granted for this material to be shared for non-commercial, educational purposes, provided that this copyright statement appears on the reproduced materials and notice is given that the copying is by permission of the author. To disseminate otherwise or to republish requires written permission from the author. Copyright Ownership and Digital Course Materials:

2 Views With Courseware Ownership American Association of University Professors states: “the academic exception should ordinarily apply to the development of courseware for use in programs of distance education.” See American Association of Universities states: “the university…own[s] the intellectual property that is created at the university by faculty [and] research staff…with substantial aid of its facilities or its financial support.” See ( tml). tml

3 Issues in the Online Environment: The Faculty: –revenue –control –academic freedom (unpopular, edit suggestions) –quality –loss of professional respect The Administration: –up front costs (unusually expensive, like patents?) –support staff = team approach –repeated use rights –what happens when the faculty leaves?

4 AA Author is generally the owner in copyright law pursuant to 17 U.S.C. 201(b) Exception is to this approach is work made for hire. In that case, the employer is considered the author “unless the parties expressly agreed otherwise in a written instrument signed by them…” 17 U.S.C. 201(b) Legal Framework

5 Policy Justification Historic policy justifications behind the Academic Exception –Inconsequential Commercial Value –Employability –Prior Work –Uniqueness –Anarchy –Incongruity »See Holmes and Levin, 2000 BYU Educ &L.J. 165, 186

6 The Academic Exception to the “Work for Hire” Doctrine Work held not to be a work made for hire. Context has been academic books, articles, professor’s notes (traditional scholarly works).

7 Legal Precedents Weinstein v. University of Illinois, 811 F2d 1091 (7 th Cir. 1987) Hays v. Sony Corporation of America, 847 F.2d 412 (7 th Cir. 1988) CCNV v. Reid (490 U.S. 730 (1989) Cases are few, not definitive Academic Exception is not codified in Copyright Act of 1976

8 The Continuum Academic exception Contracts Explicitly stated in policy Below threshold in use of resources Unrelated to job responsibilities Work for hire contracts above threshold in use of resources explicitly stated in policy

9 Courseware Ownership Study Institutions selected based on their distance education enrollments (>2000) in Peterson’s Guide to Distance Learning Programs institutions surveyed. Included 2 and 4 year institutions 86% response rate

10 Purpose of Courseware Study To: Determine types of policies Identify separate or subordinate policies Identify exemplary policies, per respondents Investigate role of collective bargaining Examine use of contracts

11 Findings: One overarching policy typical 29% had no policy on intellectual policy Separate or subordinate policies rare Most policies current, but inadequate for courseware issues Collective bargaining is rare 48% indicated they rely on contracts Student ownership issues handled inconsistently

12 One Policy vs. Multiple Policies One policy –Ease of use for faculty, staff, students –Provide a single, unified document –Simply merge courseware into already existing copyright policies dealing with teaching materials Two or three policies –Specialized expertise can be utilized –More options in each policy with regard to sharing rights –Each policy can be specific and shorter than unified document –More work to develop, more maintenance required –Ensure coordination of separate policies

13 Conclusions: Contracts used to clarify ownership Courseware often subsumed under teaching works Exemplary policies (as identified by respondents) consistently recognize the academic exception Specialty policies, while rare, are quite valuable

14 Why Do We Need Policies? In absence of clear legal framework, need clarity for institutions and their faculty Define whether, when, and how the academic exception is applied Decide who is the “default” owner Lessen likelihood of litigation Encourage creativity and experimentation

15 Summary: Three Possibilities University ownership model: If any university resources are used, university owns the copyright. Or, university claims all work as a work for hire. Shared ownership model: each party has certain rights, responsibilities, and benefits. Faculty ownership model: ownership defaults to the faculty and university rights are carefully prescribed.

16 Exemplary Policies University of Kansas University of Alabama University of Washington University of Massachusetts For other excellent examples, see Portal article in your handouts

17 Examples of Ownership Univ. of Kansas: Mediated Courseware: –Self-initiated mediated courseware. When employees develop mediated courseware without specific direction by the institution, unless otherwise agreed, the ownership of the courseware shall remain with the employee. –Institution-directed mediated courseware. When the institution specifically directs the creation of mediated courseware by assigning one or more employees to develop the mediated courseware and supplies them with materials and time to develop the mediated courseware, the resulting mediated courseware belongs to the institution and the institution shall have the right to revise it and decide who will utilize the mediated courseware in instruction. The institution may specifically agree to share revenues and control rights with the employee.

18 University of Alabama –Materials produced by faculty and employees of the University shall be the exclusive property of the faculty member or employee, so far as copyright is concerned. It shall be the responsibility of the faculty member or employee to copyright appropriate material. University assistance, such as released time, research or secretarial assistance, the purchase of particular materials, etc., must be acknowledged appropriately. –In the event that extraordinary assistance (assistance exceeding usual department or area policy) is provided by the University, a division of royalty may be required. When extraordinary assistance is provided, it is the responsibility of the department chairperson or area head to notify the faculty member in writing that the assistance to be provided exceeds usual policy. The faculty member or employee is responsible for negotiating any division of royalty with the Office for Academic Affairs prior to signing a contract.

19 Options Does not have to be “all or nothing.” The online environment requires new thinking about ownership. Institutions and their faculty need to avoid past mistakes. Need to debate and discuss to find solutions. Need to update, revise, and/or establish policies acceptable to all. Need to consider the creator’s and the institution’s needs.