III. UNIVERSITY COPYRIGHT POLICIES
Many institutions have formally included the academic exception in their copyright policies and are beginning to understand that ownership of online courses is not necessarily the main issue. Instead, rights of use is the essential element. After all, copyright is nothing more than a "bundle of rights" that may freely be used. These rights include the right to make copies, sell and distribute copies of work in public, prepare works based on copyrighted work, perform work in public and display work in public. 17 U.S.C. §106. Moreover, these rights are transferable and can be done through sale, donation, operation or law or licensing. 17 U.S.C. §201(d).

In light of these facts, an "either or" decision on copyright ownership may not be necessary and could hinder policy formulation unnecessarily. Instead, institutions and their faculty could focus on the issue of who can use the work and under what circumstances in creative ways that meet the needs of both parties. For example, a policy between a university and its faculty may provide that the faculty owns the courseware, but at the same time, the faculty member provides the university with a royalty-free, non-exclusive license in perpetuity or for a period of time, to make it possible for the university to make adaptations, transmit, distribute, perform or display the course to students. See American Association of Community Colleges Whitepaper, Fall 1999 at 21. Similarly, if the policy specified that the university retained ownership of the course, the institution's policy could provide for the faculty member to have a royalty-free, non-exclusive license for a limited time (or in perpetuity), and the right to use the work at another institution, after a specified period of time, in the event of a change of employment. Policies should also deal with the faculty member's right to attribution and the right to update the course. Id. By dividing the bundle of copy "rights", the goal of the law "to promote the progress of science and useful arts by securing for a time the rights of authors and inventors" is achieved and higher education institutions and their faculty can both benefit.Further, economic incentives to create new works that advance the progress of knowledge remain intact.

A. Examples
Most institutions and their faculty think the central question is ownership. However, the essential question is what rights each party takes away from the transaction. Universities and colleges across the country are implementing a variety of policy models that provide both faculty and institutions certain rights and conform to their normative values and cultures. Although originally published in 1994, the American Association of Universities has put together a good initial resource for faculty and administrators to consult when developing an institution's policy. http://www.ifla.org/documents/
infopol/copyright/intllpty.txt.

The following policies are from some Sloan Consortium systems or institutions with substantial enrollments in distance education. The policies provide some good examples of how institutions and their faculty are developing equitable policies that address the needs of both constituencies.

University System of Georgia
http://www.usg.edu/admin/
policy/600.phtml
USG's policy distinguishes between sponsor-supported efforts, institution assigned efforts, institution-assisted individual effort, individual effort, and other efforts. Either the institution or the author may own depending on category.

"The Board of Regents acknowledges that faculty, staff or students regularly prepare for publication, usually through individual effort and initiative, articles, pamphlets, books and other scholarly works which may be subject to copyright and which may generate royalty income for the author. Publication may also result from work supported either partially or completely by the institution. With the advent of innovative techniques and procedures, the variety and number of materials which might be created in a university community have increased significantly, causing the ownership of such copyrightable materials to become increasingly complex."

Stanford University
http://www.stanford.edu/
dept/DoR/rph/5-2.html#Sec1
"In accord with academic tradition, except to the extent set forth in this policy, Stanford does not claim ownership to pedagogical, scholarly...works, regardless of their form of expression."

"The University shall retain ownership of works created as institutional works. Institutional works include works that are supported by a specific allocation of University funds or that are created at the direction of the University for a specific University purpose."

Michigan State University
http://www.msu.edu/unit/
facrecds/FacHand/
develpcopyright.html
"The legal title to all University-sponsored educational materials as defined in Section II shall be held by Michigan State University with the following exception. Materials produced under grants from the federal government or other agencies shall be subject to conditions of the contract or grant with respect to ownership, distribution and use, and other residual rights.

The University may, at its discretion, assign, transfer, lease, or sell all or part of its legal rights in educational materials. Where feasible, formal statutory copyright shall be obtained for such educational materials in the name of the University."

San Diego State University
http://www.rohan.sdsu.edu/
dept/senate/sendoc/
distanceed.apr2000.html.
Specific policy on distance education that states ownership of materials, etc. involved in telecourses shall be agreed upon by faculty and University in accordance with IP policy and prior to initial offering of a course.

IP policy provides the results of "scholarship and creative work are the property of those persons who originate them, who therefore have the right of copyright and/or final disposition of their work. Such property rights, however, must be defined in relation to all of the resources contributed by persons, institutions, and agencies involved in the scholarship and development of the creative work."
http://gra.sdsu.edu/dra/
Intell_Property_5-9-00_Final.htm

Brigham Young University
http://ipsinfo.byu.edu/ippolicy.htm
BYU favors institutional ownership but allows author ownership of creative works using nominal university resources.

Indiana University
http://www.indiana.edu/~rugs/
respol/intprop.html
The University shall not exercise intellectual property rights in any work created by a Creator other than works meeting the definition of "applicable intellectual property" or "institutional works," unless such rights are voluntarily transferred by the Creator or secured through licenses set forth in the Policy.

University of Wisconsin System
http://www.uwsa.edu/fadmin/
gapp/gapp27.htm
UWS policy allows for either author or institutional ownership, depending on defined developmental conditions (e.g. no institutional support, minimal support, etc.)