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Copyright in online course content: how are the neighbors handling that?

As online education gains popularity, some higher education administrators and professors are asking interesting questions about how copyright laws apply to the content for online courses. If a professor develops an online course while a faulty member at one university, can she take the course materials with her when she gets a job at another university? What is a course? Is it the syllabus? Exam questions? What if the online course contains student material, such as posts in a forum?

There are no simple answers to these questions, and universities vary in how they are addressing these and related questions. A good place to start though, is with the (slightly) simpler question of who owns course content in general.

Copyright law generally protects the creators. Authors, musicians, scholars, and scientists automatically hold copyrights to their creations. So, shouldn’t this end the inquiry? A professor writes a syllabus, and then it is hers to license and take with her as she pleases. Not quite. Federal copyright law contains important exceptions to the general rule that the creator owns the copyright. The most relevant here is the work-for-hire-doctrine. The US Copyright Act defines “work-for-hire” as “a work prepared by an employee within the scope of his or her employment.” If an employee’s creative output falls under this definition, then the law treats the employer, rather than the creator, as the owner of the copyright. Work-for-hire doctrine is the primary legal mechanism that universities use to claim intellectual property rights in the work of its professors. Under this framework, professors are employees and creating courses is within the scope of their employment. If the professor leaves University of Fantastic for the greener pastures of Unstoppable State, then UF decides whether to allow the professor to take her course with her. 

Please note that although the work-for-hire doctrine seems likely to characterize the faculty’s relationship with the university–at least in the context of the creation of courses, the AAUP challenges this assertion:

A. Academic work covers a wide range, from books and articles to syllabi, class notes, and course descriptions to on-line courses and computer programs to grant proposals and university governance materials. Ownership of these various elements of faculty work depends upon a number of factors, and may vary not only between categories but within them.

B. Quantifying individual aspects of faculty work is extremely difficult, because of its vast variety and scope. The majority of traditional faculty work belongs to the faculty, and doesn’t fit as work-for-hire. However, there are some faculty projects that are highly integrated and dependent upon the administration or outside entities. These are likely to be subject to joint or some other form of shared ownership, or be considered work-for-hire. All but the most blatant of such “commissioned” works, however, and everything else in between, fall into the gray middle area where individual decisions must be made on a case-by-case basis.

C. Faculty Scholarly Work:

1. Generally, faculty scholarly work is not considered work-for-hire. “[I]t 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.”Statement on Copyright, AAUP Policy Documents & Reports 182 (9th ed. 2001).

2. Despite this general practice and legal understanding, some colleges and universities still proclaim that even traditional academic works are “works made for hire,” and that the institution is the initial owner of copyright. “The most common standard employed by universities for claiming ownership of faculty works is the ‘use of university resources’ or ‘significant or substantial use of university resources.’ … However, since there is no tradition of applying this standard, the process of defining it will be one of uncertainty for both parties….” Laura Lape, “Ownership of Copyrightable Works of University Professors: The Interplay Between the Copyright Act and University Copyright Policies,” 37 VILL. L. Rev. 223 (1992).

3. Administration ownership of faculty scholarly works, lecture notes and teaching materials would profoundly contradict the practices of the academic community. Faculty scholarship as work-for-hire doesn’t fit, legally or policy-wise, into academic scholarship.

This document from the AAUP raises many interesting issues and is worthy of its own post or three. But, for the meantime, let’s just take it as a given that the work-for-hire doctrine does apply to the creation of coursework; VCU’s policy seems to operate on that assumption.

James Madison University and George Mason University, VCU’s neighbors in Virginia, take slightly different approaches.

The relevant James Madison policy, for example, states that the ownership of course materials for distance vests with the faculty member: “distance learning materials and courseware created by faculty without the substantial use of university resources remain the property of the faculty member.” Note that “substantial use of university resources” does not include “ the provision of office or laboratory space, access to the library, use of the university’s information technology infrastructure, or the payment of employees’ salary.” But even if the faculty member crosses the threshold of “substantial use,”  then, “the university will own the copyright, but the faculty member and the university will both retain a non-exclusive license to use these materials in educational settings, even if the faculty member leaves the university.
George Mason’s policy states that faculty members retain copyright both in their scholarship and the preparation of their course materials. George Mason’s policy demonstrates a less aggressive deployment of the work-for-hire doctrine, invoking it only with respect to “course materials created by faculty for additional compensation by the university.”  

Old Dominion’s policy claims ownership of course materials under the work-for-hire doctrine, but then grants a license to the faculty member to use it while employed at ODU. “This non-exclusive license continues in force when the employee leaves the University and personally teaches a course assigned by another educational institution.”

Given the diversity of approaches within Virginia, it would be interesting to see whether SCHEV or another group would be interested in creating a model policy or set of guidelines and, if so, how that policy would use the work-for-hire doctrine.



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