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Who Owns What Unbundling Web Cou


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									                                                                                              V I E W P O I N T

Who Owns What?
Unbundling Web Course
Property Rights
A policy on Web course ownership may settle conflicts on campus
By Robert Ubell

       tug-of-war between faculty and       year,2 online higher education is just        s When institutions market and dis-
       administration over who owns         being born. Many institutions haven’t           tribute e-courses, who owns the
       online courses is taking place       yet decided when to offer online                rights?
on our nation’s campuses. Pulling           courses, let alone whether to enter a         s Should copyright be in the name
forcefully on one end are those insti-      political struggle with faculty over            of the Web course developer or the
tutions that declare that because they      rights. Schools delivering Web-based            university?
paid faculty to develop e-courses and       classes face other hurdles first: selecting   s Under what conditions, if any, may
because they invested in Web-delivery       the right e-learning software, training         copyright be assigned to the school?
software, supported instructional           Web-savvy instructors, choosing which           Turning to use,
training and design, and absorbed           courses to offer, and calculating how to      s If a school engages faculty to develop
most other costs, online courses            compensate faculty for developing e-            online courses, may the institution
belong to the university. Tugging at        courses and teaching online, among              have someone else teach them?
the other end are those faculty who         dozens of other difficult tasks.              s May the university license e-courses
say that because they created e-               Recognizing that Stevens Institute           to third parties, such as other schools,
courses, copyright law and academic         of Technology’s long-established intel-         publishers, or distributors?
convention support their right to           lectual property policies failed to           s Do Web faculty have portability
ownership, no different from on-site        account for e-courses, the school               rights, allowing them to take their e-
courses. Web classes, they argue,           appointed a faculty committee to                courses when they leave?
belong entirely to the faculty.             explore online course ownership and             As for compensation,
  In a survey I conducted recently,1        to recommend a new policy. Com-               s Should schools pay course developers
about half the schools that offer           posed of veteran and junior members,            separately from their normal com-
online courses reported that their          the group first met in the summer of            pensation as faculty?
institutions have a Web course intel-       1999.3 As director of WebCampus.              s Should faculty be compensated sepa-
lectual property policy in place. At a      Stevens, the graduate school’s e-learn-         rately for online instruction?
quarter of these, the schools own all e-    ing program, I was named chair.               s If course developers receive portabil-
course rights. Just over 10 percent said                                                    ity rights — that is, if they can teach
that their faculty own the rights,          Ownership, Use,                                 their e-courses elsewhere — should
while another third reported that fac-      and Compensation                                the next school compensate the orig-
ulty and the university share them.            In preparing for our work, the com-          inating college?
Half the schools said they haven’t yet      mittee searched the relatively sparse e-      s Should developers receive additional
instituted a policy or are in the midst     learning rights literature, collected a few     payment in the event the school
of devising one.                            useful Web ownership policies in place          licenses online courses?
  As expected, the results show little or   at other colleges, and generated a list of    s In the event another faculty member
no consensus. And no wonder… While          key issues we felt needed study. We             at the originating school teaches an e-
the growth of e-learning has taken off,     divided these into ownership, use, and          course, should the developer receive
jumping from five percent of the            compensation.                                   extra compensation?
nation’s college and university students       “Who owns the rights to Web-based            Digging into the literature, we found,
in 1998 to a projected 15 percent next      courses?” covers these thorny issues:         as expected, that many had already

                                                                                                Number 1 2001 •   E D U C A U S E Q U A R T E R LY   45
     rushed in, either to protect their vulner-
     able interests or to explore the new ter-
     ritory. Among others, copyright
     experts, faculty unions, college admin-                    Stevens’ Web-Course Ownership
     istrators, and elected officials had
     weighed in with their observations,
                                                                Policies Recommendations
     many sensibly, a few recklessly.                           Officially adopted by Stevens Institute of Technology in February 2001,
                                                             these recommended policies are considered by some to be among the most
                                                             liberal in the nation’s colleges and universities.
        Luckily, our group found some seri-
     ous work already done. The most                            Copyright: A course developer’s copyright to an entirely online course
     impressive was a study of “unbund-                      should be assigned to the school when the faculty member agrees to enter a
     ling,” a concept first articulated for e-               contract with the institution to develop it.
     courses by CETUS, the widely influen-                      Compensation: The agreement should compensate developers for creating
     tial consortium jointly sponsored by
                                                             entirely online courses in “virtual space” — a provision that should not apply
     California State University, State Uni-
                                                             to online material presented in conventional classrooms in “physical space.”
     versity of New York, and City University
     of New York.4 Among other things,                       Faculty should also be compensated separately for entirely online instruction.
     unbundling acknowledges that rights                        Use: While copyright for an entirely online course is assigned to the univer-
     are both extendable and divisible, and                  sity, the faculty member retains the right to use course material components
     that they exist in the context of rela-                 (notes, slides, exercises, and so on) for other purposes, such as conventional
     tionships. Unbundling recognizes that
                                                             classroom teaching, publication, and lectures.
     an instructional object — lecture notes,
                                                                Portability: In the event the developer delivers an entirely online course
     quizzes, and the like — can have many
     attributes and uses.                                    at other schools, a usage license fee should be paid to the originating
        Consider, for example, a slide presen-               institution.
     tation. Illustrations can be displayed on                  Third-party licensing: If an entirely online course is licensed to a third
     a screen for classroom instruction, sub-                party —publisher, corporation, distributor, or other school — the course
     mitted for publication in a periodical, or
                                                             developer should receive a percentage of the net licensing revenue.
     published in a textbook. They may also
                                                                Additional compensation and limitations: If an entirely online course is
     accompany a talk at a technical confer-
     ence. In an online course, students all                 taught at the school by someone other than the developer, the faculty mem-
     over the world can click on them.                       ber who created it should receive a percentage of the net tuition revenue.
        An instruction object can assume var-
     ious identities, like an actor playing dif-
     ferent roles, depending on where it’s                their intellectual effort disseminated        At the faculty end of the e-learning
     used. Unbundling proposes that differ-               globally in the scholarly literature.         enterprise is intellectual content, cre-
     ent parties can own such versatile learn-               Publishing also acknowledges the           ated by Web course developers. These
     ing objects when they perform different              divisibility of rights. Contracts usually     syllabi, lecture notes, bibliographies,
     functions on separate academic or                    call for authors to assign limited rights     reading selections, examinations, and
     scholarly stages — in the classroom, for             to publishers. In certain agreements,         other elements constitute a string of
     example, or online. Not only can they                authors assign their rights for North         instructional objects that can be used
     be used differently, but copyright law               American publication only, retaining          on site, online, and in other ways. At
     gives the owner the right to sell these              foreign rights for themselves. Or, they       the institutional end is commercializa-
     objects separately.                                  give the publisher the right to the hard-     tion, with activities such as marketing,
                                                          cover version only, with paperback            distribution, licensing, and manage-
     Publishing                                           rights reserved for the author. Free-lance    ment, among other services. These also
        Traditional scholarly publishing also             writers commonly give publishers rights       include technical and e-commerce
     offered policies adaptable to e-learning.            for their stories to appear in a magazine     infrastructure provided by the school.
     For centuries, academics have voluntar-              once only. The writer retains any                We also believed it important to dis-
     ily given certain rights to commercial or            remaining rights — reprinting, adapta-        tinguish between supplementary Web-
     university presses because they appreci-             tion, and translation, among others.          based course modules, created by
     ate that publishers possess the power to                                                           faculty to support conventional class-
     stock bookstore and library shelves                  Distinctions                                  room teaching, and entirely online
     aggressively. In exchange, authors ben-                Our committee articulated a number          courses, delivered to students exclu-
     efit by earning royalties or by having               of distinctions we thought important.         sively over the Web, with no or lim-

46   E D U C A U S E Q U A R T E R LY   • Number 1 2001
ited face-to-face instruction. Finally,      Acknowledgments                                        Moeller, Jr. and School of Engineering
we recognized that Web faculty               I gratefully acknowledge David Sternbach,              Dean Bernard Gallois.
engage in two distinct functions: They       Esq., for his review of the legal issues cov-     4.   Consortium for Educational Technology
                                             ered in this article. I am especially indebted         for University Systems, Ownership of New
develop instructional objects for deliv-
                                             to Rosalyn Deutsche for her insight into               Works at the University: Unbundling of
ery over the Internet, and they teach        questions raised by the extension of rights.           Rights and the Pursuit of Higher Learning
online.                                                                                             (California State University, 1997). Also
                                             Endnotes:                                              available online at http://www.cetus.
Policy Recommendations                       1.   The results are from an online survey of          org/ownership.pdf.
   In the end, our committee proposed             Web-based distance learning programs at      5.   Available at http://attila.stevens-tech.
the key recommendations shown in the              U.S. colleges and universities conducted          edu/dof/intellectualprop.htm.
                                                  from November 20 to December 13, 2000.       6.   R. Ubell, “Unbundling Intellectual Prop-
sidebar.5 By unbundling different rights
                                             2.   Laurie Lewis et al., Distance Education in        erty: Recognizing Rights in Distance
and uses, the policy recognizes the                                                                 Learning,” delivered at the 6th Interna-
                                                  Postsecondary Education Institutions:
sometimes competing claims of faculty             1997-98 (U.S. Department of Education,            tional Conference on Asynchronous
and academic institutions to intellec-            Office of Education Research and Devel-           Learning Networks, held Nov. 3–5, 2000
tual property contained in Web courses.           opment, Washington, D.C., 1999)                   at the University of Maryland in College
   In November 2000, after our recom-             [http://nces.ed.gov/pubsearch/pubsinfo.           Park, Md. A Powerpoint slide presenta-
                                                  asp?pubid=200001313].                             tion is available online at http://
mendations had gone through a year of                                                               www.aln.org/alnconf 2000/.
                                             3.   Members of Stevens’ Ad Hoc Committee
review by faculty, staff, and trustee pan-
                                                  on Web-based Intellectual Property
els, Stevens’ faculty endorsed what our           Rights are Stanley Clark, Dilhan Kalyon,
group believes is one of the most liberal         Lawrence Levine, David Naumann,              Robert Ubell (rubell@stevens-tech.edu) is
Web course policies introduced in the             Keith Sheppard, and Robert Ubell             director of Web-based distance learning at
nation’s colleges.6 In February 2001,             (chair). The committee was formed by         Stevens Institute of Technology, Hoboken,
                                                  Graduate School Vice President Joseph J.
Stevens’ Board of Trustees adopted it as                                                       New Jersey.
the school’s official e-learning intellec-
tual property rights policy. It took more
than 18 months for it to navigate                                          E     D   U     C   A    U      S    E
through Stevens’ academic channels —
and we believe it was worth the wait.
   The new rules were announced
November 2000 at an e-learning confer-
ence at the University of Maryland.7
Experts who attended the Sloan Foun-
                                                     Take advantage of professional networking that gives you the
                                                     best of two worlds: responsiveness of a small group, and the range
dation-sponsored meeting applauded
                                                     of expertise within a large one.
Stevens’ solution. One senior college
administrator claimed that the school’s              More than two dozen of these informal, special-interest discussion
model “appears to have solved the                    groups offer EDUCAUSE members as-needed access to colleague
question of Web course ownership in                  experience throughout the year, as well as face-to-face meetings at
our universities.”
                                                     the association’s annual conference.
   The new policy is both academically
fair and economically just. Faculty
receive reasonable compensation for                     s   Teaching and learning
their intellectual contributions, not
                                                               s   Administrative technologies
only from online development and
instruction, but also from projected                                  s   Leadership in times of change
income streams that may flow from
licensing and other revenue sources.                                         s   Large and small campus challenges
The policy also gives faculty complete
academic freedom over learning objects                Constituent Groups focus on issues particular to specific types of
they create for scholarship and teaching              institutions, professional positions, and hot topics that our
outside of Web-based courses. What’s                  members need to talk about. For descriptions and
more, universities — which may have                   participation guidelines, listserv subscription instructions,
invested heavily in e-learning and its
                                                      discussion archives, and related resources see
marketing and licensing capabilities —
can enter the e-learning marketplace                  www.educause.edu/memdir/cg/cg.html.
confidently, their rights and potential
income protected as well. e

                                                                                                        Number 1 2001 •   E D U C A U S E Q U A R T E R LY   47

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