This article originally appeared in Distance Education Report.
Does your institution have an intellectual property policy specific to online courses and course materials? If so, do you know and understand it? Do faculty know it? If faculty receive a financial payment or release time to develop online course materials, does that change who owns the rights to course materials? As the number of online courses and degree programs offered at institutions in higher education continues to expand, intellectual property rights will continue to garner increased attention.
According to the World Intellectual Property Organization, intellectual property refers to creations of the mind such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. And according to the World Trade Organization, intellectual property rights fall into two primary areas: copyright (e.g., literary works, music, art) and industrial property (e.g., trademarks, patents, trade secrets). The purpose of assigning rights to intellectual property is to encourage innovation and creativity, and to protect the rights of authors and businesses.
I learned the importance of having an intellectual property policy specific to online education early in my online administrative career. Way back in 2008, I had a conversation with a faculty member who was extremely apprehensive about developing an online course. He was concerned that an administrator (e.g., department chair, school director, college dean) would “take” his course materials and offer them to another instructor to teach.
I remember the conversation vividly, and I remember confidently reassuring the faculty member, “That would never happen.” Well, I was wrong, and I learned to be careful about using the word “never”!
The following year, an experienced online faculty member who developed an online course was scheduled to teach the class over our summer-school session. However, a dispute developed with the faculty member, the chair and the dean about how much this faculty member would be compensated for teaching the class.
The dean, unbeknownst to me, contacted our IT department and requested—and was given–access to the class in our learning-management system. The dean’s intention was to have that class taught by another instructor. I couldn’t believe it! I immediately contacted our IT department and had the dean removed from the class, which you can imagine caused a bit of a stir on our campus.
In the end, the situation was settled when all involved reached agreement on the compensation that would be paid to the faculty member who originally developed and who ended up teaching the class. However, shortly after that, I drafted a faculty sole-ownership agreement that was approved on our campus and is still in use today. I’ll share more on that agreement in a bit.
More institutions are developing intellectual property policies specific to distance/online education. In 2004, approximately 40% of institutions had such policies in place, and that number is closer to 70% today. You should really think of it as an essential component of your program.
Traditionally, faculty have owned or retained rights to course materials they develop for face-to-face courses, but online offerings are more complicated. Approximately 70% of institutions find ways to compensate faculty for online course development (e.g., financial stipends, course release time), and this additional compensation is often the complicating factor.
Intellectual property policies can be complex and confusing, but generally they boil down to one of three options: 1) Either the institution retains ownership of course materials; 2) the instructor retains ownership; or 3) there is joint ownership. Hoyt & Oviatt (2013) reported that at doctorate-granting institutions, the institution retained ownership of online course materials 36% of the time, the faculty member 10% of the time, and shared or joint ownership occurred 41% of the time. A few institutions reported other arrangements.
Many in higher education consider faculty to be the primary driving force behind the quality of the curriculum (including online) and the overall success of the students. Faculty have less enthusiasm to develop and teach online courses at institutions that don’t have an established intellectual property policy specific to online education. It would be a huge deterrent to faculty if an institution were to take course materials without the creator’s permission and make them available to other instructors—much like what almost happened at my institution in 2008.
Faculty at my university can receive funding of $1,000 a credit to develop online courses. With most courses at three credits, funding is $3,000. We created an agreement faculty can sign stating they have sole ownership of their course and course materials, even though they were paid to develop the class. Interestingly, not all faculty sign this sole ownership agreement, but about 75 percent do. And even if faculty sign the agreement, they can still share course materials with their colleagues if they want to. Many do, but it is their choice.
What is “substantial”?
As we were developing our faculty sole-ownership agreement, we reviewed the University of Wisconsin System’s policies on copyrightable instructional materials ownership, use and control. Those policies state that the system or our specific institution could retain ownership of course materials if the faculty member utilized substantial University of Wisconsin System or institutional resources and support. In this case, substantial was not clearly defined and could have included things such as direct investment of funds by the university or staff, and extraordinary use of computing resources.
I was curious to see if some of the deans at my institution considered $3,000 substantial. I first asked the Dean of the College of Liberal Studies, who said, “Yes, absolutely, I think $3,000 is a substantial stipend to be paid to develop an online course.” Then I asked the Dean of the College of Business. The response? I got only a laugh, which I interpreted as a no.
We consulted the University of Wisconsin System’s legal team prior to creating our ownership agreement, and we were told that such agreements were left to individual campuses.
If your institution does have an existing policy in place, it is important that faculty are fully aware of it so they know who maintains the rights to the online course materials they develop, if their course materials could be shared with other instructors who are teaching the same course, or if they can take their course materials and teach a similar class at another institution (some agreements prohibit this).
If your institution does not have an existing policy in place, I’d strongly encourage you to move this toward the top of your to-do list; gather the appropriate stakeholders such as faculty, administrators, and legal staff; and draft and circulate it for institutionwide review and approval. Doing so could help you and your institution avoid an unpleasant situation.
Hoyt J, & Oviatt D., Governance, Faculty Incentives, and Course Ownership in Online Education at Doctorate-Granting Universities. The American Journal of Distance Education, 2013, Vol 27, pps. 165-178.