From: "Swisher, Bob" <bswisher@ou.edu>
To: "'it-fyi@listserv.ou.edu'" <it-fyi@listserv.ou.edu>
Subject: Earnings Disputes over Distance Learning (Chronicle of Higher Ed,
Date: Wed, 3 Jun 1998 10:26:23 -0500
Professors and Universities Anticipate Disputes Over the Earnings From
Distance Learning
By LISA GUERNSEY and JEFFREY R. YOUNG
Professors and university administrators are jockeying for control and
ownership of fundamental elements of teaching -- course materials and
the courses themselves.
For centuries, professors have prepared lectures, organized readings,
and created exams without worrying about who owned them. But now the
growth of distance education and the widespread use of multimedia course
materials have convinced some administrators and faculty members that
they're sitting on gold mines: It might be possible to package college
courses and sell them over the Internet or on disks.
If people are, in fact, willing to pay for a CD-ROM or for access to a
World-Wide Web site that includes recorded lectures, syllabi, and course
notes, who should reap the profits? The faculty member who created the
course? The university that was paying her and that provided the
resources she used? Both of them? And if a professor uses university
resources to develop an on-line course, can he market the course on his
own? Can he take it with him to another university?
"Distance education puts academic freedom and intellectual property
under the microscope as never before," says David M. Rubiales, the lead
author of a recent report on distance learning for the American
Association of University Professors.
The problem is that on-line courses and course materials don't fit into
existing university policies for intellectual property. In some ways,
they're like inventions: Universities usually own the patent rights to
their professors' inventions and share with them the income from
licenses on those patents. In other ways, the on-line materials are like
textbooks: Universities rarely claim any rights to such works, leaving
professors to deal independently with publishers.
So far, neither Congress nor the legal system has offered much guidance.
"The law is utterly unclear on the answer of who owns traditional and
scholarly materials at the university," says Kenneth D. Crews, director
of the copyright-management center at Indiana University.
At the moment, the debate is also somewhat abstract. Few electronic
courses, if any, have become best sellers, or have even made much of a
profit. There are even fewer examples of profit-hungry universities'
stripping professors of rights to course materials.
But forecasters predict storms on both fronts. Unless people set
policies on course ownership now, experts say, universities and
professors may find themselves mired in legal battles.
"To have no policy will most likely cause major dysfunction in the years
ahead," says Graham B. Spanier, president of Pennsylvania State
University, which has shown an interest in distance education.
The way such policies are worked out could shape the future role of
faculty members.
Some professors fear that if they don't protect their rights, they might
soon be treated as producers of Hollywood-style courses that are
designed to draw a market. Others acknowledge that a university should
gain some profit from a collaborative production, but don't want to give
away too much.
Generating those policies can be a messy business. Administrators at the
University of California at Los Angeles are under attack by critics who
say the university's on-line extension program has given away
instructors' rights in an agreement with a private company. At Princeton
University, a draft policy led some professors to complain that it would
strip them of ownership of their Web sites.
Perhaps the messiest example is that at Athabasca University, in Canada.
Professors there are so angry over their institution's approach that
they are considering going to court.
Athabasca, founded in 1970 by the province of Alberta, offers mostly
distance-education courses to about 12,000 students. It claims the
rights to all courses its professors produce, and it sells some of those
courses to other institutions. Until 1994, the university gave 30 per
cent of the revenue produced by those courses to staff and faculty
members, in part through the faculty association.
But four years ago, the university's governing council changed the
policy, so that the university kept 75 per cent of the revenues and gave
the rest to the administration of those departments that had produced
the courses. The faculty association received nothing -- and it
vigorously protested the change.
Since then, says Art Nutt, vice-president for finance, the university
has recognized the professors' distress and has unofficially reverted to
the previous policy until a new one can be negotiated. "We are willing
to work with them on this," he says.
But professors say they are not satisfied and still resent the
administration's earlier position. "This shows contempt for the faculty
on the part of the university," says Alvin Finkel, a history professor.
"It essentially says that we didn't make a contribution, that we are
dispensable." Negotiation doesn't appear to be working, he says, adding,
"The next step is the courts."
The Athabasca model is exactly what many professors fear. To avoid it,
faculty groups are staking out what they believe their rights are. They
worry that if they yield ownership of course materials, they will lose
control over course content, which in turn would threaten academic
freedom.
The American Association of University Professors has just published a
report that holds tight to the belief that a professor's course, whether
taught via computer or otherwise, should be considered that professor's
property.
The report, which was published on the association's Web page, cites a
University of Texas policy as one worth emulating
(http://www.aaup.org/dlreport.htm). It is thick with specifics about
professors' rights to their distance-education courses: For instance,
professors have control of the use and reuse of their telecourses.
The National Education Association also advocates placing ownership of
course materials in the hands of professors. "We don't think that this
new-tech environment means that suddenly, because they've got a Web
site, the university owns it," says Christine Maitland, higher-education
coordinator for the association. "I sometimes think administrators get a
little carried away and think they can just grab these materials."
She says the University of Hawaii's latest contract with faculty members
addresses many N.E.A. concerns. The contract says that in most cases,
professors own exclusive rights to their work, and that the university
cannot reuse an on-line course without the professor's permission.
John H. Radcliffe, acting executive director of Hawaii's faculty union,
says the group fought for on-line rights while the contract was under
negotiation. "We wanted to be sure that we were safeguarding that," he
says.
Administrators at other universities say the issue is not so clear-cut.
Is it fair to presume that professors retain all rights to on-line
courses when those courses could not have been created without the help
of instructional designers and expensive university equipment?
At Raritan Valley Community College, a team of professors teaches a
course called "Global Patterns of Racism." The college plans to offer it
on line next fall, after its technical staff has added multimedia
components.
"The college has invested a lot of money in this course. We would not
want this course to just go away," says Chuck Chulvick, dean of academic
services. If a professor claimed full ownership of the course and then
left to teach at another institution, he asks, could the college still
offer it?
"And if a publisher came along and said, 'We want the course,'" he adds,
"the college would want to be involved."
Such questions prompted Mr. Chulvick to form a committee to set a policy
that professors and the college can agree on.
Other universities maintain that if a professor has developed an on-line
course, the arrangement is essentially an instance of "work for hire," a
legal concept that assumes that an employer can claim ownership of an
employee's work.
Kathleen Davey, dean of instructional technology at Florida Gulf Coast
University, contends that as long as professors are creating courses
that universities are paying them to create, the "first rights belong to
the university."
The policy that she is now drafting makes no mention of on-line courses
created with university support, although it does state that the
university cannot exert rights to materials developed without its
support -- such as books and articles written without substantial
university resources. Ms.Davey says on-line courses would probably be
subject to case-by-case negotiations between the institution and the
professors over how to split profits and control.
Such negotiations are typically associated with patent policies, and
some institutions say they plan to approach course ownership in the same
way they do patents. Some professors, however, argue that the patent
model is a poor fit for on-line courses.
At Princeton, a committee on intellectual property initially suggested
this spring that electronic courses fell under the existing policy for
patents, just as computer software does. Under its patents policy,
Princeton has the option of claiming ownership over intellectual
property created with university resources.
That approach drew the ire of professors in the computer-science
department. In an open letter signed by 14 faculty members, they
argued that such a policy would give the university control over
publication of all kinds of on-line materials that professors used in
their courses. "We think the proposed policy has potentially
far-reaching effects that will inhibit, rather than encourage, the
production and dissemination of knowledge," they wrote.
William Happer, a professor of physics at Princeton and a member of the
intellectual-property committee, says the panel made revisions in
response to those concerns. It now suggests that the university create a
new category -- separate from copyright or patent policies -- to cover
on-line courses. The final policy is expected to be approved by the end
of the calendar year.
Many professors say the most important issue is not ownership but
control. Larry Press, who is a professor of computer information systems
at California State University at Dominguez Hills, says he learned the
risks of putting work on the Web the hard way. He and his students had
created an elaborate Web site for the university's School of Management,
where he teaches. One day in 1996, when Mr. Press tried to call up the
site, he got a "file not found" message. Administrators had closed down
the Web site and created a new one for the school -- a site that
incorporated pieces of the one he and his students had created. He says
he had not been consulted.
"Policies need to be put into place that protect the rights of the
faculty and provide for due process in the case of questions and
conflicts," Mr. Press says. Noting that his personal home page is still
housed on a university computer, where administrators can delete or
alter it, he adds, "I still feel vulnerable. A big part of my academic
productivity is hanging out there, and it's vulnerable."
Universities say they, too, feel vulnerable. In the brave new world of
technology-enabled education, scenarios are possible that could not have
been imagined when professors wore black gowns to class and all students
learned Latin.
"Universities may see some of their faculty developing software for
other educational institutions, who in turn sell it, perhaps in
competition with the home institution's programs," says Mr. Spanier, of
Penn State.
Dan L. Burk, a law professor at Seton Hall University who has studied
the issue, says it is important to engage all the interested parties.
"The early adopters made some mistakes. Those were the universities who
simply said, 'We own everything,' and who didn't actually consult the
faculty."
Ultimately, suggests Mr. Crews, director of the Indiana copyright
center, professors and administrators will have to sit down and
negotiate. "I know that there is a real resentment that we have to deal
with these issues at all," he says. "But we're just going to have to
face the inevitable."