Intellectual Property Final Oct 2008

8/9/2019 Intellectual Property Final Oct 2008

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October 2008

Instructional Technology Council

One Dupont Circle, N.W., Suite 360

Washington, D.C. 20036

202-293-3110

www.itcnetwork.org

The Instructional Technology Council has had signicant help in actualizing this research. Special thanks go to Wayne County Com-

munity College District (WCCCD), Dr. Curtis L. Ivery, Chancellor. Dr. Stephanie Bulger (Principal Investigator) conducted this research

with assistance from talented and dedicated research associates, Antwan Jones and Christopher Shults, who deserve special mention.

Ronda Edwards (Director of Academic Programs, Michigan Community College Virtual Learning Collaborative) must be acknowledged

for her insights and encouragement. Fred Lokken (Chair-Elect, ITC Board of Directors and Associate Dean for e-Learning) and Travis

Souza (Coordinator of WebCollege) of Truckee Meadows Community College provided valuable technical assistance. A number of

WCCCD colleagues contributed feedback, information, or read drafts of the report and provided helpful suggestions. We thank them

as well.

About Wayne County Community College DistrictThe Wayne County Community College District (WCCCD) is the fastest growing community college in the nation serving residents of

Wayne County and surrounding communities. The District has ve campuses and numerous off-site locations conveniently located

throughout Wayne County. WCCCD serves 32 cities and townships. The District has more than 90 programs leading to either an as-

sociate degree or certicate in various disciplines. For more information, please visit www.wcccd.edu.

About the Instructional Technology Council

The Instructional Technology Council (ITC) provides leadership, information and resources to expand access to, and enhance learning

through, the effective use of technology.

An afliated council of the American Association of Community Colleges, ITC represents higher education institutions within the

United States and Canada that use distance learning technologies. Based in Washington, D.C., ITC was founded in 1977 as the

Taskforce for the Uses of Mass Media for Learning. As instructional technology has evolved, so too has ITC which has provided

national leadership for more than 30 years on an array of distance learning/e-learning issues. With nearly 500 colleges and

universities, ITC continues to grow, along with higher education interest in electronically-mediated instruction. For more information,

visit www.itcnetwork.org.

Copyright 2008 by the Instructional Technology Council.

All rights reserved. No part of this report may be may be reproduced or transmitted in any form or by any means, electronic or mechanical, includingphotocopying, microlming, recording or by any information storage or retrieval system, without prior permission in writing from the publisher. Spe-cic permission must be obtained in writing from the Instructional Technology Council for such copying. Direct all inquiries to ITC, One Dupont Circle,N.W., Suite 360 , Washington , D.C. 20036 , www.itcnetwork.org.


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GENERAL INFORMATION

Institutions Surveyed

Most respondents classied themselves as Associates or Associates Dominant colleges (85.4percent). Multi-campus district (55.7 percent) and single campus (38.6 percent) were the institutionsmost represented in the data. Multi-college district institutions represented the smallest percentage(5.7 percent) of the sample. Multi-campus districts consist of multiple campuses that operate undera single college structure (Cohen & Brawer 2003). Multi-college districts have independent collegecampuses that operate under a centralized district administration (Cohen & Brawer 2003).

Online Course Enrollment

Sixty-seven of the respondents estimated the total number of students enrolled in online courses forFall 2007. The average number of students enrolled in Associates degree colleges was 4,099. Theaverage online course enrollment for multi-campus districts was 4,745 students, signicantly higher

than the average online course enrollment for single campuses, 2,334. The average online courseenrollment for multi-college district institutions was 10,197.

Online Course Development

Respondents selected whetherdesignated faculty, full-time faculty,part-time faculty or a development teamdeveloped courses in their institutions.The vast majority selected full-timefaculty (78.6 percent) and part-time

faculty (70 percent). A developmentteam (32.9 percent) was more likelythan designated faculty to develop

courses (20 percent).

Teaching Load

Online Courses

Respondents selected up to three waysthat teaching online courses t in afaculty members overall course load:

as an overload, as a regular load, or asan entire load. The most said onlinecourses t with a regular faculty load(91.4 percent). A sizable number,47 percent, indicated that onlinecourses could account for the entirecourse load taught. Another 42.9percent said online courses could betaught in addition to a faculty members

regular load (i.e., overload).

2008 Survey Results

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Compensation

Most institutions (56.5 percent) paid faculty $501-$2,499 to develop an online course. More thana quarter of the institutions did not pay faculty (27.5 percent) and few paid them up to $500 (three

percent) or above $2,500 (13 percent).

Nearly three-fourths of institutions (74.3) pay faculty to develop an online course the first time it isdeveloped and few pay them to create learning objects (37.1 percent) or to modify a course (24.3percent). Institutions also use publishers content (71.4 percent) and work-for-hire agreements (32.9percent) when developing online courses.

INTELLECTUAL PROPERTY RIGHTS (IPR) POLICIES AND PRACTICES

Clarity of Ownership

Most of the survey participants (71.4 percent) indicated that it was clear who owns the intellectual

property rights at their institution.

Ownership Determination

When asked how ownership rights were determined, only 31.4 percent of the respondents indicatedthat their college workload policy stated ownership or that select individual contracts (20 percent) andunion contracts (21.4 percent) helped determine ownership. Less than 10 percent (5.7) were unawarehow ownership was specifically determined.

Domains of Ownership

Respondents indicated how ownership was determined on several domains: course syllabi, classroomassignments, course outlines, exams, class announcements, test components, lectures, tuitionrevenues, re-usage rights of courses, distribution rights, derivative works, reproduction of copies usedin course, public display of course, and sales revenue generated from courses. Respondents identifiedwhether ownership on these domains was by the institution, faculty, joint, determined on a case-by-case basis, or unknown.


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About a third of respondents indicated that, of

the 14 domains at their college, the institutionwas the sole owner of syllabus (29 percent),reproduction of copies (29 percent), andrevenue from sales (31.9 percent). In addition,the course outlines (39.7 percent) yielded thenext highest percentage of responses. Themajority, however, indicated that the institutionowned tuition revenue (88.4 percent) as itschief domain.*N = 68 for Course Outlines

Respondents indicated that faculty ownedannouncements (31.9 percent), lectures (21.7percent), examinations (20.3 percent), re-usage(20.3 percent), public display (18.8 percent),and assignments (18.8 percent).*N = 68 for Course Outlines

Joint ownership was manifested in course-specic domains such as assignments (43.5percent), examinations (42 percent), courseoutlines (39.7 percent), text components(39.1 percent), lectures (39.1), syllabi (37.7percent), and announcements (34.8 percent).

Additionally, reproduction of copies (33.3percent), and re-usage (33.3 percent) yieldedsizeable responses.*N = 68 for Course Outlines

Solely InstitutionN = 69*

Solely FacultyN = 69*

JointlyN = 69*

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Case-by-case determination of ownership

dominated the domains of distribution (23.2percent) and revenue from sales (21.7 percent).For these respondents, the ownership rights onsensitive matters regarding exposure and protfrom online courses are negotiated betweenfaculty and institutional personnel.*N = 68 for Course Outlines

While 71.4 percent of the survey participants

indicated that it was generally clear who ownsintellectual property rights, there was variationin the extent to which individuals were awareof ownership rights policies specic to certaindomains. The gray areas for those respondentswho were unknowledgable about the domainswere concentrated in the rights of distribution(29 percent), derivative works (24.6 percent),sales revenue (24.6 percent), and public display(18.8 percent).*N = 68 for Course Outlines

Case-By-CaseN = 69*

Dont KnowN = 69*


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Frequency of IPR Disputes

Respondents overwhelmingly said there hadnever been an IPR dispute at their respectiveinstitutions. In fact, 81.4 percent of surveyparticipants indicated they had no knowledgeof disputes over IPR, leaving 18.5 percent (13respondents) who stated there were disputes overIPR at their institution. The total equals 99.9percent due to rounding error.

Of the 18.5 percent of respondents, 11.4percent (8 respondents) recognized that therehad been less than three disputes within the lastthree years, and 7.1 percent (5 respondents)noted that there had been between three and vedisputes.

IPR Policies

Of the 70 colleges in this study, 54.3 percenthad a document that outlined ownership rightsof online courses within intellectual propertypolicies. This left a sizable percentage (45.7percent) that were not aware of a policy regardingthe ownership of online courses. Of the 38colleges that responded to the question abouttraining on intellectual property policies, 31.6percent had attended workshops and seminarsthat were related to intellectual property policies,while 68.4 percent had not.

Most of the respondents (81 percent) said theirIPR policy was created after 1999, with 45

percent between 1999-2002 and 36 percentafter 2002. Nineteen percent were crafted before1999.

The year the policy was created is signicantbecause Congress passed two monumental

pieces of legislation that have affectedintellectual property rights and policies sincethe Internet began to stimulate the common useof digital content. The 1998 Digital MillenniumCopyright Act (DMCA), criminalizes productionand dissemination of technology, devices, orservices that are used to circumvent measuresthat control access to copyrighted works.Twenty-eight percent of the 39 responses to thisquestion indicated that their IPR policy had beenupdated to comply with the DMCA.

The Technology, Education and Copyright

Harmonization (TEACH) Act of 2002, allowseducators to copy documents or use copyrightedmaterials in an online classroom setting. Whenasked if the IPR policies at the host institutionhad been updated to comply with the TEACHAct, 12.8 of the 39 responses indicated thattheir IPR policy had been updated.

Coinciding with the low percentage of institutionsthat integrate these two acts into their policiesis the 44.7 percent of institutions with no plansto review policies in the future. Of the 38 whoresponded to this question, only 21.1 percent

were knowledgable of some plan to review IPRpolicies in the future. In contrast, 34.2 percent

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did not know if plans were in place to reviewthose policies.

When asked to rate their IPR policy on a scalefrom 1 to 5, with higher values indicatingsatisfaction with the policy, the average rating

was 3.8 based on the responses from half of therespondents. This ranking is signicantly higherthan the expected average of 2.5, indicating therespondents were generally above average in theirlevel of satisfaction with current policies.Most of the individuals reported that theirinstitutions had policies (54.3 percent). Themost popular locations of online IPR policieswere the Board of Trustee Manual and the

Work-for-Hire Clause

Nearly one-fourth of the 70 respondents reportedthat a work-for-hire clause was present inwritten agreements (21.4 percent), collective

bargaining agreement (12.9 percent), facultyhandbook (12.9 percent), and administrativememorandum (11.4 percent). More than aquarter of the respondents (29.2 percent)reported the existence of a work-for-hire clausein their intellectual property agreements but didnot identify a location.

When asked about specic language in theirwork-for-hire clause, individuals reported thatcommon language in work-for-hire clausesexisted to some extent. Work prepared withinthe scope of employment (34.3 percent), facultysignature on a written agreement (27.1 percent),specially-commissioned work by the employer25.7 percent), limited terms of the agreement(20 percent), and agreement on speciedcategories of work (15.7 percent) garneredresponses.

Collective Bargaining Agreement. Yet, 71 perentof respondents eschewed the choices in thesurvey and reported Other as the location ofthe policies. Two respondents reported WebSite as the Other location. Most did notidentify a location.

Individuals reported that improvement couldbe made to the policy by adding more speciclanguage about online courses (32.4 percent)and removing ambiguity in the policy (32.4percent). Nearly a quarter (24.3 percent)reported that workshops or seminars wouldimprove awareness and dissemination of thepolicy.


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SURVEY RESULTSThe results of this survey indicate several

interesting points regarding intellectual propertyrights policies and online course ownership incommunity colleges. Institutional type is animportant distinction because previous surveysfocused on four-year universities, or included anunremarkable number of community collegesto ensure an informative discussion of theseinstitutions (Kelley 2002; Packard 2002;Sanders & Richardson 2002).

These ndings suggest that the development ofonline courses resides primarily among full-timeand part-time faculty members at an institution.

Thus, a potential conclusion could be thatfaculty members would own the material that isproduced for and within the classroom. However,respondents indicate a wide range of ownershipmodels. Course-specic domains includingannouncements, examinations, and lecturesyielded high sole faculty and joint ownershipresponses, although the percentages were higherfor joint ownership than sole faculty.

Individuals were consistently unclear about theusage and re-usage rights of online courses.Responses were high for the domain of re-

usage for both sole faculty and joint ownership.Moreover, there was no consensus as to whetherthe faculty or institution owned particularmonetary domains such as rights of distribution,derivative works and sales revenue.

Given the high prevalence of joint ownershipof course materials between faculty and theinstitution in these results, one may expect alow frequency of disputes with IPR. Indeed,the vast majority of respondents indicatedno knowledge of such disputes. Of thosewho did indicate at least one dispute at theirinstitution, most indicated there had been lessthan three disputes within the last three yearsand fewer noted three to ve disputes. A lowpercentage of respondents indicated that theirintellectual property policies were updatedafter the passage of the Digital MillenniumCopyright Act and Technology, Education andCopyright Harmonization Act, perhaps becausethe acts refer to the use of digital content.Notwithstanding the low incidence of disputes,

however, institutional policies may not be

satisfactory in their enumeration of IPR,specically ownership rights. For example,individuals in this survey felt that improvementcould be made to their intellectual propertyrights policy by adding more specic languageabout online courses and removing ambiguity.

The literature supports more consistent andclear language in intellectual property rightspolicies that balance faculty and college rights(Rhoades 2001). Institutions will have lesscontention and conict over ownership rights(Bruwelheide 1999). Additionally, policies

can be supplemented with contracts or writtenagreements that can be adapted to changingcircumstances (Kelley 2002; Johnson 2004;Farnsworth & Bevis 2006).

Some of the ndings of this research areconsistent with trends in current literature.These results indicate that joint collaborationon course development is signicant at 32.9percent. Recent literature on collaborativecourseware and content developmentacknowledges that faculty members,administrators, technology staff and other

employees often play important roles indeveloping online courses (Paulsen 2002,Moore 2007). Unbundling the tasks of coursedesign, assembly, and content creation throughjoint collaboration is purported to lead touniformity, reusability, and enhanced studentlearning (Maeroff 2003).

The literature also suggests that the potentialrevenue gained from the license or sale ofcourseware or content is an issue that IPRpolicies must address, particularly because

it can be a point of contention betweenadministrators and faculty (Laughlin 2000;Kelley 2000). While a few respondents notedthat revenue is assessed on a case-by-casebasis, the small number of responses to thisissue suggests that it is not a major point fordispute at this time. Administrators in thesurvey appear to be more concerned about whohas course specic ownership rights ratherthan about the scal benets of online courses.It has been postulated that institutions

Discusion

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(universities in this instance) in unionizedenvironments provide greater avenues forappropriate remuneration through more equitable

prot sharing from the sale or license of facultyproduced works (Rhoades 2001).

These ndings have noted a signicant gap inthe presence and adaptation of IPR policiesin community colleges. Kelley et al. (2002)reported that 29 percent of the 68 collegesand universities in their study were withoutintellectual property policies and thoseinstitutions with a policy had updated it to meetemerging needs. With a comparable sample size,45.7 percent of respondents in this researchacknowledged that intellectual property rights

policies were not present at their institution.Equally revealing is that few respondents hadplans to update their IPR policies. Additionally,few mentioned updating their IPR to adhere toDMCA and TEACH Act legislation, though mostof the policies may have been already adaptedprior to the changing laws on copyright or werecomplete in their language so that there was noneed for an update. Few respondents noted thatwork-for-hire language was present in a variety ofspecied and unspecied locations. The resultspresented here show that community collegesneed to evaluate the need for IPR policies, the

efcacy of existing IPR policies, the need forwritten agreements, and work-for-hire languagein existing written agreements.

To understand IPR policies, one must beknowledgeable about the material in aninstitutions specic policy. This researchrevealed an area that has received very littleattention in the literature the need for trainingon IPR. Only 31.6 percent of respondents hadattended workshops or seminars related to IPR.Furthermore, the locations where IPR policiesmay be found were limited. Less than 20percent of respondents reported that IPR policiescould be found in the faculty handbook.

Thematic Analysis of Policies

Drawn from respondents surveys, 15 identiableonline intellectual property rights policies wereanalyzed to highlight thematic similaritiesbetween the policies.

Generally, IPR were negotiated (1) as sharedagreements between faculty and college, (2) post-hoc with executive persons of the college (e.g.,

board of trustees or president), or(3)

granted tothe college and then transferred to faculty. Eventhough IPR policies are somewhat strict, facultyare generally unrestricted in the classroom.Faculty who develop courses for exclusive use inthe face-to-face classroom owned the courses forthe purposes of instruction. However, softwarecreated for the college by the faculty belonged tothe college.

The use of college resources were anemergent theme in IPR policies. Resourcesencompassed both materials and time. Thus, the

creation of faculty work products should be doneoutside of time allotted for classroom instructionand be done without the aid of college-ownedmaterials. Work products that were created withcollege resources were unanimously the propertyof the college.

Although work products were dened as uniquelythe property of the college, many institutionsreferred to equitable ratios to evoke fairnessin deciding ownership in their IPR. There wasgreat variation in the extent to which facultycould prot from their work products. Most of

the policies suggested that some payment shouldgo to college. The most consistent percentagewas 50-50 in community college policies. Insome IPR policies, payment would go to college,and then the surplus (after properly allocatedthrough the college) would go to developer of theintellectual property.

For specic property ownership such asscholarship, the policies generally indicatedthat work at the institution was property ofthe institution. Unpublished material cannothave a nancial gain. Exceptions were personalworks that did not use institutional resourceswhich belonged to faculty. Lastly, even whenownership was given to faculty, institutionstypically forbade selling of the property tothe institution itself. If there were a conictof interest (dened as a conict betweencollege and faculty), then all of the institutionsconsistently named the board of trustees orpresident to dictate who owned the intellectualproperty.


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In these policy statements, students werealso protected. Students were not coerced tobuy property created by faculty and studentsintellectual property was the property of thestudent, not the faculty or college.

Lastly, there were legal ramications in theseintellectual property rights policies. However,only one college policy specically listed theexact legal ramications for violating IPRagreements. In addition, only one college policyspecically discussed its policy in tandem withthe TEACH Act and DMCA. However, manyof the policies cited the Fair Use doctrinein the Copyright Act, indicating some level ofcompliance in the policies with these legislativechanges.

IPR Law and Relevant Cases

Intellectual property rights are vested incopyright law and derived from the U.S.Constitution. Article I Section 8 states thatCongress shall have the power to promote theprogress of science and useful arts, by securingfor limited times to authors and inventors theexclusive right to their respective writings anddiscoveries (U.S. Constitution). Section 106of the Copyright Act of 1976 enumerates aset of exclusive rights of copyright consistingof reproducing, preparing derivative works,distributing copies, publicly displaying work,

and publicly performing work (U.S. CopyrightAct, title 17 U.S. Code). In addition, the ownerhas the right to transfer or license one or moreof these rights. The Copyright Act makes nomention of the ownership rights of online coursesspecically, nor do subsequent statutes such asthe Digital Millenium Copyright Act of 1998 andthe TEACH Act of 2002. Who owns faculty-createdworks, however, has been debated in litigationand the press.

Neither copyright law nor cases that seek tointerpret it have been conclusive, failing toprovide clear answers on who owns faculty work,due to the work-for-hire doctrine. Section 101of the Copyright Act states that a work forhire is a work prepared within the scope of anemployees employment or if a work is agreedupon in a written agreement signed by bothparties that it will be a work-for-hire (U.S.Copyright Act, title 17 U.S. Code).

In Community for Creative Non-Violence v.Reid, a 1989 case, the Supreme Court afrmedthe judgment of the Court of Appeals andestablished a test based on the common lawof agency to determine who is an employee(490 U.S. 730). In the Reid case, a sculptor

who created a statue for an organization had adispute about taking the statue on tour, and thesculptor refused to return the statue. A districtcourt ruled in favor of the organization, but theCircuit Court of Appeals reversed and remandedand held that the sculptors work was not a workfor hire. In their analysis, the Supreme Courtidentied a test to determine whether a person isan employee: the hiring partys right to controlthe manner and means by which the product isaccomplished; the skill required; the sourceof the instrumentalities and tools, the locationof the work, the duration of the relationship;

whether the hiring party has the right to assignadditional projects to the hired party; the extentof the hired partys discretion over when andhow long to work; the method of payment; thehired partys role in hiring and paying assistants;whether the work is part of the regular businessof the hiring party; whether the hiring party is inbusiness; the provision of employee benets; andthe tax treatment of the hired party.

Substantiating whether a person is an employeeis the rst test established in the Reid case.The second test is determining if the work byan employee was conducted within the scopeof his or her employment. Three factors, all ofwhich must be present, show whether or not anemployee acted within the scope of employment:1) whether the work is of the type that theemployee is employed to perform; 2) whetherthe work occurs substantially within authorizedwork hours; and 3) whether its purpose, atleast in part, is to serve the employer. In bothMiller v. CP Chemicals, Inc. and Marshall v.Miles Laboratories, Inc., courts found that theemployees who were suing their employers

produced work (software and an article) withinthe scope of their employment (808 F.Supp.1238, D. S.C. 1992; 647 F. Supp. 1326, 1330,ND Ind. 1986). While some authors have argueda teacher exception to the work for hire doctrine,case law is relatively absent to deny that collegesand universities own faculty work (Packard2002, 13, Moore and Andersen, 2003).

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There is little clarity of ownership rights incopyright law and by the courts. In the absenceof clarity regarding ownership rights to onlinecourses, colleges and faculty may rely on writtenagreements that are signed by both parties.Finally, written agreements between faculty and

institutions should be tailored to an institutionand its faculty (Laughlin, 2000).

Implications for Community Colleges

The results of this survey and discussion areintended to be of value to distance educationpractitioners. An important implication is thatcommunity colleges should review existingpolicies and create new policies if they do notexist. While most institutions had IPR policiesand were satised with them, many institutionsdid not have policies.

One area that requires further attention inthe policies is the domains of ownership. Inthis research respondents were clear that theinstitution owned tuition revenues from onlinecourses but unclear about the ownership ofmany course specic domains and usage rightsfor derivative works, distribution, and resale.Moreover, respondents recommended removingambiguity and including more specic languageabout online course ownership in their policies.

A second implication is the need for training

on IPR. Few respondents in the survey reportedparticipation in training to interpret theirpolicies. About half of the survey participantsexpressed a need for training on IPR.

A third implication is that community collegesshould establish written agreements to augmenttheir IPR. The IPR policies that were reviewedamplied the need for written agreements andexplicit language that incorporated the rightsof the institution, faculty, and students. Areview of IPR cases afrmed the need to includelanguage from the work for hire clause in writtenagreements to protect the institution and faculty.

A fourth implication is the dissemination of IPRin multiple locations including places wherefaculty may view the policies. The limitedaccess to IPR and availability to faculty weretwo important issues.

Directions for Future Research

The growth of online education drives the needfor IPR policies. The online education landscapeis changing rapidly, and the need for relevantdata and information has never been moreimportant. Interpreting the intellectual propertyrights of online courses is relatively new groundfor most distance learning administrators. Theyare developing more online courses and trainingmore faculty to teach online than ever beforeto meet the increasing demand for educationalexibility often with a limited understanding oftheir actions on their institutions and facultysintellectual property rights.

In three years, it would be instructive toconduct a similar survey to compare results andlearn the extent to which community colleges

have incorporated the changes outlined here.Some questions to be addressed are: Domore community colleges have IPR policies?;Have community colleges changed how theydisseminate IPR policies?; Do more communitycolleges use written agreements that includework-for-hire language, are tailored to particularinstitutional contexts, and include the interestsof all parties? Does training on IPR exist and whoparticipates in the training?

Future research should strive to increase thenumber of institutions and type of participants.

Of the 267 ITC member community colleges,70 responded to this survey. Few facultyparticipated. The perspectives of faculty andadministrators are critical to this research toillustrate the interpretations, approaches, andgaps in practice. Community colleges willnd value in giving greater attention to thisimportant area as the use, re-use, and potentialrevenue from online courses become centralto their strategy for providing access andsuccess opportunities to global participants.The evaluation and improvement of IPR policiesand practices is for the greater benet of their

institutions, faculty, and (ultimately) studentswherever one may nd them.


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References

Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).

Bowman, Megan. 2007. Intellectual Property Rights, Plant Genetic Resources and International Law: Potential Conicts and

Options for Reconciliation. International Journal of Intellectual Property Management 1:277-292.

Bruwelheide, J. H. 1999. Intellectual Property and Copyright: Protecting Educational Interests and Managing Changing

Environments. Article accessed February 8, 2008 at http://eric.ed.gov/ERICDocs/data/ericdocs2sql/content_storage_

01/0000019b/80/16/df/f1.pdfCate, Fred H., Patricia J. Gumport, Rolland K. Hauser, and James T. Richardson. 1998.

Copyright Issues in Colleges and Universities. Academe 84:39-45.

Johnson, Andrea L. 2004. Reconciling Copyright Ownership Policies for Faculty-Authors in Distance Education.

Journal of Law and Education 33:431-456.

Kelley, Kimberly B. 2000. Courseware Development For Distance Education: Issues And Policy Models For Faculty Ownership.

in Presented at EDUCAUSE Annual Conferences. Nashville, TN.

Kelley, Kimberly B., Kimberly Bonner, James S. McMichael, and Neal Pomea. 2002. Intellectual Property, Ownership and

Digital Course Materials: A Study of Intellectual Property Policies at Two and Four Year Colleges and Universities.

Libraries and the Academy 2:255-266.

Tomas A. Lipinski, (2007). Contemporary Issues in American Distance Education:

Legal Issues in the Development and Use of Copyrighted Material in Web Based

Distance Education in Handbook Of American Distance Education 2d edition.

ED by Michael Grahame Moore and William G. Anderson. Erlbaum Associates.Marshall v. Miles Laboratories. Inc., 647 F. Supp. 1326, 1330 (ND Ind. 1986).

May, Christopher, and Susan K. Sell. 2006. Intellectual Property Rights: A Critical History. Boulder, CO:

Lynne Rienner Publishers.

Miller v. CP Chemicals, Inc., 808 F.Supp. 1238 (D. S.C. 1992)

Murray, Fiona, and Scott Stern. 2007. Do Formal Intellectual Property Rights Hinder the Free Flow of Scientic Knowledge?

An Empirical Test of the Anti-Commons Hypothesis.

Journal of Economic Behavior and Organization 63:648-687.

Nemire, Ruth E. 2007. Intellectual Property Development and Use for Distance Education Courses: A Review of Law,

Organizations, and Resources for Faculty. College Teaching 55:26-30.

Packard, Ashley, 2002. Copyright or Copy Wrong: An Analysis of University Claims to Faculty Work.

7 Communication Law and Policy 275.

Rhoades, Gary. 2001. Whose Property Is It? Negotiating with the University. Academe 87:38-43.

U. S. Constitution.

U.S. Copyright Act, title 17 U.S. Code.

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1. Please select your institutions classication.

2. Please identify your institutional type.

3. Please identify your current Job Title.

4. What is the total online education course enrollment(duplicated) for Fall 2007?

5. Who develops online courses at your institution?

6. Identify the various ways in which faculty areassigned to teach online courses at your institution.

7. When faculty members develop online courses, howis ownership of the online course determined?

8. Who owns the following rights when a facultymember has developed an online course at yourinstitution?

9. For each particular component of an online course,is it clear who owns the intellectual property rights(institution or faculty) for a course that has beendeveloped by a faculty member?

10. If there is a formal process for resolving intellectual

property disputes with faculty, please describe it.

11. Have you ever had disputes with faculty overintellectual property rights regarding the use or reuseof online courses?

12. Within the last three (3) years, how often have youhad intellectual property disputes with faculty overthe use or reuse of online courses?

13. Does your institution have ofcial intellectualproperty policies, rules, or guidelines that addressthe use or reuse of online courses?

14. What year were your intellectual property policies,rules, or guidelines crafted regarding the use or reuseof online courses?

15. Please identify where the intellectual propertypolicies, rules, or guidelines regarding the use orreuse of online courses can be found.

16. Have you revised your intellectual property policies,rules, or guidelines addressing the use or reuse ofonline courses based on the following legislation?

17. Are there plans to review your intellectual propertypolicies, rules, or guidelines addressing the use orreuse of online courses in the next year?

18. Have you attended a workshop or seminar at yourinstitution on interpreting the intellectual propertypolicies, rules, or guidelines addressing the use or reuseof online courses?

19. In order of importance, select the best options forimproving your intellectual property policies and theirimplementation regarding online course ownership?

20. Based on your past experiences with your policies, pleaserate the adequacy of your intellectual property policies asthey relate to online course use and reuse.

21. If there are issues with your intellectual property policiesthat we have not identied, briey describe those issues.

22. Please indicate which of the following apply in regards tothe compensation for full-time faculty who develop andmodify online courses.

23. Please indicate which of the following apply in regardsto the compensation for part-time faculty who developand modify online courses.

24. Please indicate which of the following apply in regards tothe non-monetary benets for full-time and part-timefaculty teaching online courses.

25. How much do you pay faculty to develop online courses?

26. How is pay for developing an online course determined?

27. For what are faculty paid when developing an onlinecourse?

28. What are additional ways for managing online coursedevelopment at your institution?

29. If you have a work-for-hire (a contractual agreementwhereby the institution outlines the rights for each party)clause in your intellectual property agreements, where isit?

30. What is included in the work-for-hire clause?

31. If you did not provide a url in Question 15 above, is itpossible to contact you to get a copy of your intellectualproperty policy?

APPENDIX A

Intellectual Property Rights &Online Course Development Survey Items


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APPENDIX B

Sample Language from Community College IPR Documents*

Sample Language 1

The ownership rights to a creation shall be determined generally by the provisions below, but ownership may bemodied by an agreement, sponsorship agreement, or other condition.

Institutional Works. Intellectual property rights in institutional works belong to the college... Institutional worksare works made in the course and scope of employment by employees or by any person with the use of collegeresources, unless the resources were available to the public without charge or the creator had paid the requisitefee to utilize the resources. A course outline is an institutional work. Scholarly works and encoded works are notincluded within the denition of institutional works.

Scholarly Works. Intellectual property rights in scholarly works belong to the faculty member, student or professional

staff who created the work, unless an agreement, sponsorship agreement, or other conditionprovides otherwise.Scholarly works are creations that reect research, creativity, and/or academic effort. Scholarly works include coursesyllabi, instructional materials (such as textbooks and course materials), distance learning works, journal articles,research bulletins, lectures, monographs, plays, poems, literary works, works of art (whether pictorial, graphic,sculptural, or other artistic creation), computer software/programs, electronic works, sound recordings, musicalcompositions, and similar creations.

Encoded Works. Intellectual property rights in encoded works belong to the faculty member or student who createdthe work, unless an agreement, sponsorship agreement, or other conditionprovides otherwise. Intellectual propertyrights in encoded works created by a professional staff member belong to the college or university unless anagreement, sponsorship agreement, or other condition provides otherwise. Encoded works are creations that aresoftware and other technologies for the electronic capture, storage, retrieval, transformation, display, or transmissionof information.

Personal Works. Intellectual property rights in personal works belong to the creator of the work. A personal work isa work created by an employee or student outside his or her scope of employment and without the use of collegeresources other than resources that are available to the public or resources for which the creator has paid therequisite fee to utilize.

Student Works. a) Intellectual property rights in student works belong to the student who created the work. b) Acreative work by a student to meet course requirements using collegeresources for which the student has paidtuition and fees to access courses/programs or using resources available to the public, is the property of the student.c) A work created by a student employee during the course and scope of employment is an institutional work andintellectual property rights to such creation belong to the collegeunless an agreement, sponsorship agreement, orother conditionprovides otherwise.

Modication of Basic Ownership Rights. The general provisions for ownership of intellectual property rightsshallbe modied by the following provisions if any of these provisions is applicable to the situation.

Sponsorship Agreement. The ownership of intellectual property rights in a work created under a sponsorshipagreement shall be determined by the terms of the sponsorship agreement. If the sponsorship agreement is silent onthe issue of ownership of intellectual property rights, ownership will be determined under applicable law.

Source: http://www.mnscu.edu/board/policy/326.html

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Sample Language 2

The college owns all syllabi and denitions of the contents of its courses, although the facultymembers own the contents, notes, etc., of the courses they create unless receiving substantial helpfrom the college, This means that if a faculty member develops a new course and no longer wishesto teach it, the syllabus may be used by another faculty member to develop a similar course, meetingthe same curricular need.

Use of Intellectual Property

If a faculty member, using his/her own time and resources, creates a web or other distance course, he/she may choose to teach it at the college or elsewhere. If the faculty member leaves the college, thecourse, being his/her property, will go with the creator, to do with as he/she pleases.

Transition of Use of Intellectual Property

If a faculty member, using his/her own time and resources, creates a web or other distance course,which is critical to a specic college program, the creator owns the materials, and can control theiruse while teaching at the college. However, if the creator leaves the college, he/she needs to allow thecollege a fair period of transition to replace the materials, so that the program is not interrupted. Thiscan be done by giving warning one year in advance that the materials need to be replaced or it canbe done at the time of separation. In order to smooth the transition, the college may assign anotherfaculty member or adjunct to use the teaching materials if the creator either has left or choosesnot to use them. However, after a transition period of one year, the college must either arrange tocompensate the former faculty member for use of the materials, or create new materials to replacethem. If the creator prefers, and if the college and creator can agree on a monetary value for thecourse, the creator can donate the course to the college for a tax write-off.

Source: http://www.nvcc.edu/depts/vpnance/aspm/aspm.htm (Section 29.2.4)

*These excerpts were taken from IPR documents provided by survey participants. They are intended to be best practiceexamples. Inclusion of these excerpts does not, however, constitute an endorsement by either ITC or Wayne County Community

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APPENDIX C

Sample Written Agreement

Right to Teach Agreement

The faculty member agrees to undertake and develop a distance learning course for (Course Title) on behalf of the Board

of Trustees (Board) of [community college name]. The faculty member shall be paid [number of] dollars to developsaid coursework. The coursework is to be completed on or before Payment shall be (date) contingent upon satisfactorycompletion and timely delivery of said coursework to the Board.

Ownership and Royalty. The college shall be the sole owner of the coursework and any copyright applicable thereto. Shouldthe coursework be offered for sale by the college outside the institution, and if still employed by the college or ofciallyretired from the college, the faculty member shall be entitled to receive, as a royalty, fty (50) percent of the proceedsfrom sales received by the college to be paid by the Board to the faculty member semi-annually provided the courseworkhas not been substantially changed. In the event faculty members collaborate on course development, the Facultymembers shall divide the fty percent (50%) royalty.

Right to Teach. The Faculty member shall have the non-exclusive right to teach the course using the coursework developedby him/her for the next three (3) semesters the course is offered by the college provided there is sufcient enrollment

and further provided, however, that if another Faculty member develops similar coursework for the same course or two (2)Faculty members collaborate to develop the same coursework, then the Faculty members right to teach shall rotate. Theright to teach is dependent upon the satisfactory teaching performance of the Faculty member and continued employment.

Obligation to Maintain and Update. The Faculty member shall have the obligation to maintain and update the courseworkwithout additional compensation during the time the faculty member retains the right to teach set forth above. Thereafter,any faculty member using and teaching the coursework shall be obligated to maintain and update the coursework withoutadditional compensation unless substantial revision is necessary and approved by the Board in advance.

Coursework Approval. The coursework developed under this agreement shall be considered an online course and subject tothe online course approval process. Further, any substantial revision to the coursework shall require approval through theonline course approval process.

Copyright Infringement. The faculty member warrants that he/she will in no way infringe upon any copyright of another inthe development of this coursework and will give appropriate attributions and obtain all permissions where necessary.

No Other Agreements. The Board and faculty member state that there are no other representations or agreements regardingthe subject matter of the agreement between the parties except as contained herein.

_______________________________________________Faculty member/Date

________________________________________________

College President Name/DateRepresenting the Board of Trustees[College Name]

Source:http://www.spjc.edu/eagle/administration/forms_procedures/RighttoTeachContract.htm

*This document was drawn from IPR documents provided by survey participants. It is intended to be a best practice example. Inclusion of this documendoes not, however, constitute an endorsement by either ITC or Wayne County Community College District.

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