Policy Brief on Copyright and Distance Education Highlights How You Can Review and Upgrade Your Current Policies

October 2, 2001

This brief clarifies current policies regarding copyright in distance education. Policies reviewed here have either already been adopted by various institutions of higher education or are currently under serious consideration. The brief also highlights shortcomings of current policies and analyzes contemporary issues, which have not yet been addressed and require immediate attention. A tool for policy analysis and development is suggested to facilitate reexamining current policies and formulating new ones.

In recent years, distance education has commanded considerable attention in higher education and the corporate world. Traditional publishers and a new breed of online service providers have also shown great interest in the field.

This interest has been coupled with the recent realization among economists that intellectual capital is as important as other forms of investment, such as the means of production or liquid assets. This outlook has given rise to the concept of an emerging new economy. The currency of the new economy is knowledge. Simply put, the new economist’s argument is that wealth is created when intellectual capital is translated into innovative approaches to creating new goods and services.

Traditionally, university faculty have been a primary source of new knowledge. As such, they have authored numerous books to disseminate their knowledge and have published them by contracting with traditional publishers. Such intellectual property has always been owned by the faculty, and institutions of higher education have rarely had any claim over it.

The current interest in distance education, however, has created a new controversy over the ownership of intellectual property by faculty. Under the traditional system, faculty own the narrative of their lectures. What makes the current debate remarkable is the question of who owns the narrative if it becomes part of a mediated course on television or the Internet. The ownership of courses created for distance teaching and learning is not always clear, potentially altering faculty’s basic relationship to their institutions.

Until very recently, most universities did not have a policy on this issue. Although some major institutions now have policies in place, there is considerable confusion among administrators, faculty, publishers, online service providers, and others about ownership rights. There is also confusion over royalties derived from the proceeds of courses that include a faculty’s narrative or likeness. The situation becomes even more complex when the course—once captured on a medium—is taught by an instructor other than the faculty who helped create the course.

In many ways, this scenario is similar to when an instructor adopts another instructor’s book to teach a course. Distance teaching, however, requires more scrutiny because the institution often devotes considerable time and effort to re purposing a faculty’s content for distance teaching. Given such effort, the institution may lay claim to some degree of ownership.

Traditionally, when a book is published, the author receives a royalty, and graphic artists, photographers, editors, and others who have worked on the book are compensated for their work and the use of their creation. When a faculty uses his or her own book in a course, the use of the material creates no legal issue. When a faculty displays other works in a classroom, such as photographs borrowed from a library or a video taped from PBS, the use of such materials falls under the fair use doctrine in current copyright law. However, if the faculty puts his or her course online, the use of such materials on a broadcast medium—like cable television or the Internet—goes beyond fair use in its traditional sense. Thus, the overriding issue for educators, legislators, judges, and policy makers is how to balance the interests of copyright owners with the interests of students who have a need to access information in various forms.

In clarifying these issues, this policy brief will reflect

  • state-of-the-art university policies regarding ownership of faculty’s intellectual property for distance education,

  • current copyright laws regarding the use of copyrighted material in distance education, including the TEACH Act, which was passed in June 2001, and

  • resources for further study on these issues.

Future briefs in this series will address:

  • Faculty & Distance Education: Development, Tenure, and Promotion

  • Student Support: Financial, Library, and Technical Services

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