C. Control
1. The Faculty Perspective
The issue of control regarding online
courses has to do with academic freedom, quality, and faculty
concerns about their profession. In particular, faculty fear
that online courses mean that fewer faculty will be employable
and institutions of higher learning will be able to do "more
with less." From the viewpoint of many faculty members, ownership
is directly tied to academic freedom. If the institution owns
faculty members' work, there is the possibility that their employer
might want to have greater say in their work products. For example,
institutions might want to edit faculty work, or give faculty
"suggestions" for changes. An example of this in the online
course environment might be having an instructional designer
rewriting an online lecture because the faculty's opinion is
considered too "inflammatory" and as a result, could affect
the "marketability" of the final courseware product. The portability
of digital work, and the ease of making changes to digital content,
heightens faculty awareness of the academic freedom issue and
online courseware. There is a concern among faculty that once
the control is transferred to the university, the quality of
the product could be jeopardized. Or, the original product,
that was up-to-date when it was created, could become outdated
and the faculty originator could find he is still mentioned
as the author.
2. The Institutional Perspective
While faculty members have legitimate concerns,
so do the institutions developing and delivering online courses
and programs. In the view of some institutions, faculty members
are not the exclusive creators of online courses. In such cases,
including at the University of Maryland University College, the
faculty member is one of several individuals who contribute to the
final product or "courseware." The faculty member is part of a team;
he is not the only individual making a significant contribution
to the final product. Thus, the idea of one individual being the
creator is questionable when so many contributed their talents and
abilities to create a high-quality online course. Also, there is
the issue of the institution's costs to develop and deliver the
online course. There are many estimates of what it costs to develop
an online course ranging from $25,000.00-$50,000.00, depending on
the discipline and the extent to which multimedia is incorporated.
Institutions see their investment in courseware as being similar
to the investment they make to obtain a patent. Thus, they assert
they have a right to own the courseware also. Institutions are also
concerned about faculty ownership and the resultant possibility
of a conflict of interest or competition such as in the Arthur Miller
case at Harvard University.
II. THE LEGAL FRAMEWORK
As the number of market entrants to distance
education increase, there is also an increase in the need for greater
legal certainty about issues of ownership and liability in the dissemination
of digital courses. In light of all of this change and confusion,
the issue of who owns the copyright to courses transmitted in digital
format has surprisingly not been squarely addressed by the courts
and the United States Congress has not specifically addressed the
issue either. As a consequence, institutions and faculty involved
in distance education must turn to existing copyright law for guidance.
In light of the legal ambiguity, it is more important than ever
that colleges and universities, particularly if heavily involved
or considering getting involved in online distance education, adopt
copyright policies that address issues of ownership and use of digital
courses.
A. Copyright Analysis
Article I, Section 8, Clause 8 of the United
States Constitution provides that "Congress shall have Power.to
promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries." This provision allows Congress
to reward innovation by granting copyright — a temporary monopoly
— to authors and inventors.
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