Sloan-C View, Courseware Ownership

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The primary federal law governing copyrights is the Copyright Act of 1976. The 1976 Act allows for copyright protection "in original works of authorship fixed in any tangible medium of expression." See 17 U.S.C. §102(a)(2000). The 1976 Act provides for copyright ownership to vest initially in "the author or authors of the work." 17 U.S.C. § 201(a). And the Supreme Court has construed "author" as "the person to whom anything owes its origin; originator; maker.." VerSteeg, 75 U Iowa L.R.381, 387 (1990) [2]. The Act allows for ownership of works by: 1) the author; 2) joint authors and 3) works made for hire. 17 U.S.C. §201. Generally, the copyright analysis for purposes of determining courseware ownership involves determining whether lecture notes, syllabi and other items associated with course development are "works made for hire." The work for hire provision states the employer is the author "unless the parties have expressly agreed otherwise in a written instrument signed by them." 17 U.S.C. § 201(b). And a work is considered a work made for hire if it is done by an "employee within the scope of his or her employment." 17 U.S.C. §101 [3].

B. Academic Exception
A scholarly work produced by an instructor within the scope of employment has generally been considered a work for hire - in the area of patents. However, scholars have generally maintained their academic exception to the work made for hire rule in the area of copyright. The academic exception is not codified in the 1976 Act, but has its roots in 19th century English case law and has been recognized in federal case law [4]. Many institutions have created policies that formally recognize the academic exception and have voluntarily given faculty ownership of scholarly and teaching works.

A review of all of the cases that have addressed the teacher exception, before and after the 1976 Act, identify certain policies that have historically justified the teacher exception to the work for hire doctrine. However, some of these policies may no longer be applicable in the context of online education. These policies include the following:

1. Inconsequential Commercial Value —in light of the traditional low value of lecture notes, no compelling reason for institution to have copyright;

2. Employability — if a university owned the professor's lecture notes or other teaching materials, it would inhibit the professor's employability since the university could enjoin the professor from using the information at another institution;

3. Prior Work — works by a professor, such as class development prior to arrival at a university, does not imply an assignment to the institution of any copyright the professor already owns;

4. Uniqueness — professor's lectures are a unique kind of intellectual property and should not be treated automatically like other intellectual products that employees create;

5. Anarchy — abolishing the teacher's exception would wreak havoc in the settled practices of academic institutions;

6. Incongruity — the policy of work for hire doctrine and the conditions of academic production are not complementary.

See Holmes & Levin, 2000 BYU Educ. & L.J. 165, 186.

It is important to note that the available case law on this issue is quite limited. Perhaps a court case will definitively address the issue, but in the interim colleges and universities need to develop their own copyright policies. However, even if a copyright policy is developed it is unclear whether the policy will be able to sufficiently transfer copyright ownership [5].

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