9.16.2012

Copyright Laws in Higher Education

Credit: Dr. Marcus Gossler

Copyright laws continually present problems for institutions and faculty in higher education as the profitability of electronic materials increase (Simon, 2010, p. 457).  There has been a steady increase in “two- and 4-year degree-granting institutions in the United States, or 56%, offered distance education courses” (Kranch, 2008, p. 350).  As higher institutions disseminate course information via the Internet, the likelihood of copyright ownership and their infringements becomes apparent.  Instructors, students, and colleges become involved when their works become fixed in media through software and online platforms (Kranch, 2008). Students may not know that their “fixed” works are immediately copyrighted and that they have an exclusive ownership of their writings and photographs (Lyons, 2010). Web surfers are less likely to know that all the material they peruse, copy and paste is owned by someone or some institution, regardless of a copyright mark. The question of ever more laws to circumscribe the existing copyright laws must be addressed (Samuelson, 2011, p. 30). Furthermore, the laws governing nonprofits, higher education, corporations, and individuals are often difficult to navigate, only to be resolved by a court. The protection a copyright offers must be balanced with the deleterious effects of preventing material to be shared for the benefit of learning and progress (Samuelson, 2011).  Legal battles can forestall the sharing of good ideas, creative learning devices, and the advancement of society.
The Copyright Act protects the creator of a work by giving him exclusive rights to make copies of that work for a specified time (17 U.S.C. 101). Ownership of a copyright should be balanced by the benefits. While there are benefits to making more information available in the public domain or at least offer it through a creative commons license, society should not neglect the needs of the creative talent (Klein, 2010, p. 3). Institutions are like corporations, and they provide a sound base of salary and benefits for the creative genius to produce works worthy of copyright and financial rewards. Both the institution and the faculty members stand to benefit (Klein, 2010, p.8). Some faculty may not produce significant works that have monetary benefits and/or may be content to use others works. But for those who do create new materials while enjoying the security of a paycheck, benefits, and often tenure, the question of who owns the works comes under scrutiny. Institutions vary in the way they handle this, from offering “1) outright faculty ownership, particularly when faculty created work on their own time with ‘independent efforts; 2) outright institutional ownership, often as ‘works made for hire’; and 3) ‘joint ownership’”(Klein, 2010, p.3). Colleges may be more agreeable than corporations to negotiating a shared ownership, as evidenced by a study in 2008 showing that faculty still owned copyrights under the provisions of creating the work on their own time (Klein, 2010).  
Higher education may offer a more secure place of employment than the corporate world. Faculty may not need the extra financial income generated from one of their copyrighted materials. But they may better be able to protect their rights and claim that their contributions make the institution more valuable, both monetarily and notably. Faculty members that contribute course materials become more valuable to the institution, but if they wish to keep some ownership of their creations, they must navigate contracts that may stipulate exclusions for work that is hired or commissioned (Blanchard, 2009, p. 61). A more equitable agreement would include the faculty member and the institution, since both stand to benefit from the copyright works (Blanchard, 2009, p. 68). Of course, in the corporate world, almost all employees are required to sign away all of their intellectual property they develop during their employment. Corporations go to great lengths to have employees sign non-disclosure agreements, non-compete agreements, and a legal document signing away all their interest in any intellectual property they produce. While some protection for corporations is valid, too often they reach in and take everything. Some corporations and institutions of learning will compromise, signing agreements that spell out the arrangement of royalty in case of intellectual properties being constructed (Klein, 2010, p. 7).  However, as institutions of higher education become more like corporations, there is a legitimate concern that they will try to claim the rights to everything produced by their “employees.” As online learning demands more content, professors are being asked to create works. Plus, faculty members are creating more content that is assessable online (Kranch, 2008, p. 353). A great deal of time and creativity can go into preparing and launching materials for online courses. While it is true that institutions provide a safe harbor for their employees to develop educational materials, greater cooperation between employer and employee will benefit all of higher education (Blanchard, 2010, p. 68). Acknowledging this relationship should create an agreement of shared copyrights. Wise faculty members will approach their contract of work with a legally binding agreement specifying the shared works that he/she may produce (Kranch, 2008, p. 354). Left to the open market, universities that work with their faculty and share copyrights or even take a lesser royalty, will likely draw more top-tiered professors and aspiring educators, while those that claim the “work for hire” clause and take all the rights, may attract less interested parties. University settings contribute to the success of many educators’ endeavors by providing the campus, colleagues and recognition among the education community (Kranch, 2008, p. 351). But, the reverse is true as well; universities benefit by a rich, creative faculty. Of course, higher institutions and corporations can dominate the agreement process; they have legal counsel and money; the educator may feel he cannot negotiate a good agreement due to his overriding need for employment. On the other hand, a lone entrepreneur, unattached to a university may not be able to sell his wares as easily as the prominent Harvard professor. That the employer provides more than just a salary is possible and therefore may justify a small percentage of royalty going to the institution.
In contrast is the unattached creator who develops educational materials without the comforts of a weekly paycheck and job security. There should not be any contest here, as the holder of the copyright stands the need of financial benefits entirely, and has not receiving support from a higher institution or corporation (17 U.S.C. § 101, 2008). This is the example of the entrepreneur who forgoes the corporate or institutional salary to produce works in hopes that he will license his work and thus receive funds to support his endeavors. In such a case, the inventor probably had to live a more stressful life in hopes of creating a work for his support, yet there will be no question that he owns the copyright outright (17 U.S.C. § 101, 2008). Therefore, it seems a shared ownership of intellectual properties is equitable when works are produced in the context of employment; there is a benefit of the paycheck that may give an educator more freedom of time to create. Unfortunately, powerful institutions, like corporations often become greedy and reach in, taking more than what is fair and equitable (Blanchard, 2008, p. 68).
Students may not know that they hold the copyright to the works they write and produce in a fixed format (Lyons, 2010). This information is not usually visible or clearly explained in a course of study. That an instructor must ask permission to keep and use a student’s work alludes to this ownership, but it is most likely not spelled out in the context of course materials or conveyed to the student.  It seems fairly straight forward that a student, who pays for his education, would have the copyright for all the work he produces. He is neither producing “work for hire” or even under the guise of being employed (Kranch, 2008, p. 351). This may change if a student of higher education becomes a graduate student and receives some pay for being a teacher’s aid. For any of the work a student produces for a faculty member, copyright ownership may be contested. If the student contributes without pay, but the faculty member is paid and he falls under the “work for hire,” the copyright could be claimed by the institution, leaving the student without much recourse.
Some college graduates that have left the university setting are in a position to create and provide educational materials without the conflict of “work for hire.” For example, Salman Khan started his online academy from his home, where he was not forced to sign over his innovative works to his employer (Young, 2010, para. 2).  Students are in a similar situation where they are not bound to the university to which they attend, and can conceivably produce creative works and keep sole ownership of the copyright. Perhaps this is the best scenario and time to develop works, as a student.
Copyright rules become so complex and pervasive, that it stifles educators when putting together information to be shared with students. Not only do they need a contract defining their contributions, there is confusion to what constitutes “fair use” (Klein, 2010, p. 4). This is especially confusing in the global atmosphere of online learning, where countries may have differing copyright laws. For example, in Canada “Fair use is an American copyright concept and it does not apply to Canada” (Nenych, 2011, p. 5). The fact that online works do not need to carry any information about their copyright rules means little except everyone must assume it is copyright protected and off-limits for use (Lyons, 2010, p. 63). Fear of litigation can further plug the system of open knowledge bases. Greed certainly has a strong influence and slows the progress of disseminating information.
Higher education is essentially a business, whether it is set up as a nonprofit or for profit (Klein, 2012, p. 8). Therefore, the copyright laws for educational institutions that supply services should be the same as for corporations that provide goods and services. However, I would not adhere to the “work for hire” concept with either entities, but would instead offer a compromise where the creator holds the majority of the copyright and the institution or corporation holds a smaller royalty. This would strengthen the position of the faculty member and the employee and at the same time give them protection from infringers. One is less likely to use material if there is a fear of litigation, which is usually only affordable to big institutions than the lone person. This would allow the creator of works to receive financial dividends and have protection and contribute to a less adversarial relationship. Both parties can benefit.
Of course, if everyone’s work is copyrighted, everyone must pay to use it, and those without the financial means will be left out. This is of great concern in the field of learning (Lyons, 2010, p. 57).  Education may have more issues with copyrights covering educational materials that could be easily copied and reproduced, expensive to make the first time around, but easily copied (Boyle, 2008, p. 4). This is where protection may be needed.  For those who need finances to live, they need the benefits of a copyright that covers a profitable creation. On the other hand, for those creators who desire to share their innovations, they may do so under the less restrictive, Creative Commons (Boyle, 2008, p. 181). No one is happy to sign over his work without contributing to the decision in how it should be shared. The Internet has made information available at rapid speeds and to a global campus, “knowledge, once feeding the productive processes and services of these corporations, now is itself deemed property” (Sun, 2009, p.4).  This is a concern as education and educators look forward to a more open access model for learning (Lyons, 2010, p. 63).


References
Blanchard, J. (2009). The teacher exception under the work for hire doctrine: Safeguard of academic freedom or vehicle for academic enterprise? Innovative Higher Education, 35(1), 61-19.
Boyle, J. (2008). The public domain: Enclosing the commons of the mind. New Haven, CN: Yale
            University Press.
Copyright Act of 1976, 17 U.S.C. § 101 (2011). Retrieved from
             http://www.copyright.gov/title17/92chap1.html
Klein, M.W. (2012). Ten Years After Managed Professionals: Who Owns Intellectual Property Now? Journal of Collective Bargaining in the Academy, 2(2), 1-10.
Lyons, M. G. (2010). Open access is almost here: Navigating through copyright, fair use, and the TEACH act. The Journal of Continuing Education in Nursing, 41(2), 57-64.
Nenych, L. A. (2011). Managing the legal risks of high-tech classrooms. Contemporary Issues in Education Research, 4(3), 1-7.
Simon, D. A. (2010). Teaching without infringement: A new model for educational fair use. Fordham Intellectual Property, Media & Entertainment Law Journal, 20(2), 453-561.
Sun, J. C., & Baez, B. (2009). Special issue: Intellectual property in the information age: Knowledge as commodity and its legal implications for higher education. ASHE Higher Education Report, 34(4), 1-151.
Young, J. (2010). College 2.0: A Self-Appointed Teacher Runs a One-Man 'Academy' on YouTube. In The Chronicle of Higher Education. Retrieved September 15, 2012, from http://chronicle.com/article/A-Self-Appointed-Teacher-Runs/65793/


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