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Intellectual Property and Copyright: How Do We Manage These Issues in an International Electronic Environment and Protect Education Interests?

Janis H. BRUWELHEIDE <janisb@montana.edu>
Montana State University
USA

Abstract

How do we create an innovative, supportive environment for teaching and learning in an electronic environment while attending to copyright and intellectual property concerns? The subject of intellectual property is one of importance to individuals involved in all aspects of Internet and Web-based education globally. This session will set forth some intellectual property concerns and issues for faculty and institutions and suggest policy and content points for consideration.

Overview
Faculty and institutional concerns
Student and learner support issues and concerns
Closing statement
References
Resource list

Overview

The electronic environment is currently forcing educators at all levels to revisit issues concerning intellectual property. Quick availability of information and data through the Internet has changed the way the general public views information since it is in seemingly endless supply through use of computers on anyone's desktop. Thus, faculty and students alike are faced with an endless, figurative smorgasbord of materials in varied formats. A dilemma concerning intellectual property occurs when owners' rights collide with users' rights and the public need to access and use resources. Thought-provoking papers about the Internet and intellectual property are becoming available on the World Wide Web. Esther Dyson has written a book, Release 2.0, and several articles dealing with intellectual property on the Internet and the intellectual value of property. An article by Vincent J. Roccia presents an interesting perspective on copyright law in the United States and possible changes or clarifications needed perhaps to enhance applicability to the Internet. Current copyright laws in the United States perhaps do not quite address the Internet per se because it represents a challenge to existing law and interpretations. Burk presents a discussion of intellectual property issues and challenges presented by the "Electronic Frontier."

This paper will present a brief overview of several topics. The first is ideas and concerns as to why faculty and institutions in education, particularly higher education, have good reasons to ask questions concerning "who owns what" in a era where educational opportunities may be delivered through the World Wide Web and various distributed learning systems. Second, it will present issues relevant to learner support and student ownership. Finally, it will present some sources of information, sample policies, and ideas about ownership of intellectual property that institutions might consider. Copyright will be the focus of this brief paper on intellectual property concerns and issues.

Faculty and institutional concerns

Distribution mechanisms, format of materials, and traditional models of ownership are bringing increasing concerns about intellectual property development, use, and application to a new importance in academic conversations. University professors, under the old way of viewing ownership, were the single owners and authors of intellectual property with a few exceptions. However, in today's environment, ownership may be shared with several individuals or organizations as new technology encourages development of multimedia products using a variety of formats and pieces that may involve multiple layers of copyrighted materials.

The dilemma of "who owns what" is compounded when one considers matters such as how much support, use of facilities, and equipment involvement are used to produce a work using newer electronic technologies. Often the institution has invested a great deal of funds in a project or product before it is used for educational purposes. The author believes that basically four major issues concerning intellectual property need to be addressed by faculty and institutions through dialogues, policies, and communication:

Ownership of intellectual property
Rights to use intellectual property
Procedural issues concerning intellectual property
Special considerations concerning copyright

In most cases, an "audit" or checklist of what rights need to be acquired, cleared, or considered must be developed prior to design, production, and delivery of a course, for example, through the World Wide Web or through other distance learning distribution systems. Institutional personnel should think through what rights are needed for a course, and what all the future possible uses and distribution mechanisms of the course content might be prior to release. If not accomplished prior to development, they could find themselves having to retrace steps and renegotiate or acquire additional rights at more cost. Thus, planning ahead with a checklist approach could save a great deal of money, effort, and hassle for all involved.

Some authors and organizations have made information available that can encourage and guide discussions about intellectual property in the higher education environment. Many professional associations are discussing the issues, but no definitive checklist or statement exists currently since ultimately each institution must deal with the volatile topic of intellectual property and issues concerning "who owns what" at the state or local level. A few examples of resource materials are included at the end of this paper. An interesting document entitled Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning by the Consortium for Educational Technology for University Systems, CETUS (www.cetus.org), suggests several points worth considering in a discussion. The group sets forth a viewpoint that simple, individual ownership of all rights associated with copyright may not now be the most desirable avenue as it may stifle creativity and new work unduly. Thus, it is time for higher education to revisit ownership of intellectual property in order to avoid contention, place the focus on optimal access and development of works, and reduce the emphasis on economics that often dominates discussions about intellectual property. CETUS sets forth the "three C approach" to conversations about intellectual property: creative initiative, control of content, and compensation concerning published as well as unpublished works. The approach is quite useful as it may be less intimidating and antagonistic than beginning with the economic issues and may apply more broadly to faculty engaged in producing materials but not necessarily receiving compensation for those materials.

The CETUS model for discussion, the "three C approach," presents the following points. The first point is creative initiative and poses discussion questions such as "who generated the idea for the work, whether published or unpublished, and who created the work and fixed it in a tangible medium?" For example, a Department Chairperson might encourage faculty to publish but not dictate the ideas and content. The entities of initiator, creator, and "fixator" may not be the same. The second point for discussion deals with the control of content as to who controls creation, production, specifications, and authority for acceptance. The degree of control is something that might be negotiated. The third point is compensation and other support. The CETUS document suggests that unless the two were extraordinary--above what faculty are normally provided-- the faculty would most likely retain ownership of intellectual property they created. Again, there are many areas of negotiation under the third discussion point.

Another way of approaching ownership of intellectual property is presented in a paper by Dan L. Burk, an attorney and Associate Professor of Law at Seton Hall University. He presents a good overview of models for copyright ownership of electronic course materials between faculty and their sponsoring institutions. His paper presents detailed discussion of advantages and disadvantages of three sets of options and two models that might be considered by universities and colleges drafting documents for copyright. Option summaries are as follows:

Option set 1 assumes that faculty members are to be considered authors of their work produced while employed at a university:
- Option 1.1: Faculty member authors a work but assigns ownership to the university
- Option 1.2: Faculty member authors a work with a non-exclusive license to the university
Option set 2 assumes a work-for-hire interpretation when faculty are employed by a university where authorship does not reside with the faculty member:
- Option 2.1: University as the author with a non-exclusive license to the faculty member
- Option 2.2: University as the author but assigns rights to the faculty member
Option set 3 applies if faculty creators are treated as independent contractors on a project:
- Option 3.1: University as author but assigns rights or license to the faculty member
- Option 3.2: Faculty as author who then assigns rights or license to the university

In summary for this section, it is important for universities, colleges, and faculty to engage in dialogue concerning intellectual property so that ownership issues are clearly defined before products are developed by institutions, faculty, and even students. There is plenty of room for negotiation, but faculty must be informed about policies and participate in the development. If not, both faculty and institutions stand to lose a great deal. Creation of new intellectual property is very important and the climate must be supportive for both sides.

Student and learner support issues and concerns

Students' rights to ownership of intellectual property they develop while students or student workers at a college or university need to be considered in addition to rights of faculty. In some instances, universities and colleges lay claim to all work produced by students. This issue needs to be addressed by institutions, policies developed, and ways found to inform students as in the catalogs for the institutions.

Learner-support issues for courses delivered via distributed learning technologies bring new concerns to the discussion table. Included are topics such as electronic reserves for libraries and housing of course syllabi and materials on a university computer network. The author presents questions such as the following:

What rights need to be acquired and cleared prior to posting course materials including syllabi and readings on a closed versus an open network? The same question applies to courses delivered via the World Wide Web and other distributed learning networks such as video conferencing.
Is an online class treated the same or differently than a traditional "face-to-face" class when it comes to copyright issues? Many institutions are treating an online class such as one delivered via the Web or through computer conferencing software as a closed class that must be password protected. Thus, only students actually enrolled in the class could access materials with a password and not much material could be seen by nonenrolled individuals.
What about posting student work to a class Web site? It would seem certainly that clearances would have to be obtained from the students.
May students freely use materials they find via the World Wide Web for class projects? Does the format make a difference or are formats such as music, video, and graphics to be treated differently than print materials?
May library personnel scan articles for online class reserve systems? If so, must the network be closed except through students enrolled in a specific class?

Closing statement

This brief paper has set forth some ideas to provoke discussion and perhaps policy development for intellectual property issues, particularly copyright, which need to be addressed by institutions of higher education and faculty in order to maintain the flow of good materials in a changing electronic environment. Failure to discuss and address these issues may result in a curbing of creativity and much antagonism on the parts of faculty and their institutions. Many models and points for discussion exist that can lead to successful negotiation of ownership issues.

References

Burk, Dan L. Ownership of Electronic Course Materials. Cause/Effect, fall, 1997. www.cause.org/cause-effect/cause-effect.html

Burk, Dan L. Transborder Intellectual Property Issues on the Electronic Frontier.
http://www.nlc-bnc.ca/ifla/documents/infopol/copyright/dburk2.txt
no date

Consortium for Educational Technology for University Systems.
http://www.cetus.org

Dyson, Esther Intellectual Property on the Net. Release 1.0.
http://www.eff.org/pub/Intellectual_property/ip_on_the_net.html
no date

Dyson, Esther, Intellectual Value. Wired, March, 1997.
http://www.wired.com/wired/3.07/features/dyson.html

Dyson, Esther. Release 2.0: A Design for Living in the Digital Age. New York: Broadway Books, 1997.

Roccia, Vincent. What's Fair Is (Not Always) Fair on the Internet. Rutgers Law Journal, 29:1.
http://www-camlaw.rutgers.edu/publications/lawjournal/rocciahtm.htm

Resource list

Materials dealing with intellectual property globally are abundant and quite easily located via the World Wide Web. The materials selected for inclusion in this list are by no means comprehensive and the list is not exhaustive. Sites were selected because they provide unique information and/or links to many additional resources on a variety of intellectual property topics issues and perspectives. Readers may follow links in the resources to obtain more information. While the primary focus is on U.S. resources, some URLs are provided for international perspectives and have links to hundreds of sites. Sources are current as of in mid-1998.

Print materials by the author

Bruwelheide, Janis H. (1994). Copyright Concerns for Distance Educators, in Willis, Barry. Distance Education: Strategies and Tools, Educational Technology Publications.

_____(1997). Copyright: Opportunities and Challenges for the Teleinstructor, in Cyrs, Thomas. New Directions for Teaching and Learning: Distance Education. Jossey Bass

_____ (1997). Myths and Misperceptions, in Gasaway, Laura. Copyright Growing Pains.

_____(1995). The Copyright Primer, 2nd edition. Chicago, IL: ALA Editions, American Library Association. http://www.ala.org

World Wide Web source list

Consortium for Educational Technology in University Systems:
CETUS Discussion Series
http://www.cetus.org
Fair Use of Copyrighted Works
The Academic Library in the Information Age
Information Resources and Library Services for Distance Learners Ownership of Intellectual Property

Fair Use Center
http://fairuse.stanford.edu

Sample intellectual property policies in the United States

Carnegie Mellon:
http://gollum.mac.cc.cmu.edu/univ_policy/documents/IntellProp.html

Johns Hopkins Medical School:
http://cwis.welch.jhu.edu/policy/intellectual_prop_guide/som_intpol2.html

University of Massachusetts:
http://woods.uml.edu/www/telecom/TADS/tadsfwc.html

Library issues

Electronic Scholarly Publication:
http://www.arl.org/transform/esp/index.html

Electronic Reserves:
http://www.research.umbc.edu/aok/reserve.html

Faculty Guidelines:
http://www.lib.umich.edu/libhome/Reserves/faculty/faculty.html

Liblicense: Licensing Digital Information:
http://www.library.yale.edu/~Llicense/index.shtml

Licensing:
http://www.arl.org/scomm/licensing/licbooklet.html

International intellectual property sources

Digital Future Coalition
www.dfc.org

Electronic Freedom Foundation
http://www.eff.org/pub/Intellectual_property/

European Commission Legal Advisory Board Intellectual Property
http://www2.echo.lu/legal/en/ipr/ipr.html

Franklin Pierce Law Center:
http://www.fplc.edu/ipmall/pointbox/pb_intr.htm

Intellectual Property: Copyright and Intellectual Property
http://www.nlc-bnc.ca/ifla/II/cpyright.htm

Intellectual Property Law World Wide
http://www.ipww.com/index.html

Public Policy Issues Related to Intellectual Property
http://www.essential.org/cpt/ip/ip.html

World Intellectual Property Organization - WIPO
http://www.wipo.int/eng/index.htm

World Trade Organization - WTO
http://www.unicc.org/wto/Welcome.html

World Wide Web Virtual Library: Law : Intellectual Property
http://www.law.indiana.edu:80/law/v-lib/intellect.html

Intellectual Property and Copyright: How Do We Manage These Issues in an International Electronic Environment and Protect Education Interests?

Abstract

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