B. Policy Checklist
When developing a policy on copyright ownership, it is important to consider the following points:

1. The policy should allocate ownership, use and/or revenue.
2. The policy should define what ownership rights students and non-faculty have, if any.
3. The policy should address the issue of revenue sharing.
4. The policy should address the issue of competition usually by referring to the institution's policy concerning competition.
5. The policy should specify the role of agreements between faculty and the institution.
6. The policy should be written in light of federal copyright law and state law on employees of public educational institutions, when applicable.
7. The policy should address whether the amount of institutional and/or other resources will affect ownership and use.
8. The policy should set up procedures for administration of the policy.

As the popularity of distance education continues to grow in the 21st century, it is essential that institutions develop a policy, using whatever model is agreeable to the faculty and administration, for copyright ownership. Copyright policies clarify the "rights" issues for the institution and its faculty and provide the type of stability that heightens creative activity, since the parties understand the ground rules before embarking on their endeavors. Further, policies that address ownership issues up front, lessen litigation, increase incentives, avoid unnecessary competition and encourage experimentation.

The Center for Intellectual Property and Copyright in the Digital Environment conducted a study of over 80 distance education institutions and reviewing the policies for those colleges and universities. The results of the Center's study will be published in the journal, Portal, in April, 2002.

April 23, 2002

References

[1] U.S. COPYRIGHT OFFICE, REPORT ON COPYRIGHT AND DIGITAL DISTANCE EDUCATION (1999) at 14 (citing NATIONAL CENTER FOR EDUCATION STATISTICS, DISTANCE EDUCATION IN HIGHER EDUCATION INSTITUTIONS: INCIDENCE, AUDIENCE, AND PLANS TO EXPAND (Issue Brief, Feb, 1998)

[2] For excellent overview on the origins and meaning of the "authorship" concept see Peter Jaszi, 1991 Duke L.J. 455.

[3] See CCNV v. Reid, 490 U.S. 730 (1989) (outlining factors to be considered in determining employee status).

[4] See Abernathy v. Hutchinson, 3 L.J. 209, 214-215 (1825); Weinstein v. University of Illinois, 811 F.2d 1091 (1987); Hays v. Sony Corp. of Am., 847 F.2d 412 (7th Cir. 1998).

[5] For example, 17 U.S.C. §204(a) states that transfer of copyright ownership other than by operation of law is not valid without a written instrument of conveyance signed by the copyright owner. Moreover, §201(b) provides that the work for hire ownership arrangement may only be altered by a "written instrument signed" by the parties. The Seventh Circuit in Weinstein recognized the fact that the University policy was incorporated into the professor's contract altered the work for hire arrangement and effectively retained the teacher exception.