IP Problems

The public health crisis is forcing professors to put more and more of their lectures and other course materials online. Some of them now wonder if they still own that content.

The good news is that they generally do, for now. The bad news is that intellectual property experts foresee, through the pandemic fog, potential scenarios in which that could change. So they advise faculty members to demand that institutions affirm their IP rights for the COVID-19 era.

“A lot of things are on people’s minds right now and this, understandably, may not be at the top of the agenda,” said Christopher Jon Sprigman, a professor of law at New York University. “But it might be useful for faculty members to get clarification on how these materials are treated.”

U.S. copyright law includes a work-for-hire doctrine saying that works prepared in the scope of employment belong to the employer, not the employee (there are exceptions for independent contractors and commissioned works). Classroom professors have long enjoyed a cultural exemption to this statute, however: while they’re paid to teach and do research, their lectures, syllabi and other nonpatentable work almost always belong to them, not the university.

“If you just read the Copyright Act and didn’t work in academe, you might think articles and lectures belong to the school,” Sprigman said. “But it hasn’t usually worked out that way.”

‘Conventions Can Shift’

Most colleges and universities have formal IP policies to this effect. This has “little to do with the law and more to do with academic convention,” however, Sprigman cautioned. “And conventions can shift. This is at the root of the worry here.”

Will academe’s IP traditions survive the current disruption? Sprigman called it “an interesting question” and one that may depend on what happens in the next six months. If there is still no coronavirus vaccine or effective treatment, and institutions face dramatically lower enrollments, they may try to open up remote courses to registrants outside the typical student body, he said.

In that case, colleges and universities might seek to offer courses at scale by “widely claiming copyright ownership of those classes’ videos, presentations and associated materials. Those things will all start to look like patentable inventions.”

The risk or the opportunity, depending on where one stands, is having various instructors offer the same exact course using a playbook originally written by someone else. Higher education does not traditionally operate this way. Even professors who teach different sections of the same course put their own stamps on it, bringing insights from their own research and experiences.

Sprigman was speculating, of course, and said he hoped his vision wouldn't come to pass. But he’s not the only one to imagine a new academic landscape emerging in COVID-19's aftermath. Sprigman’s NYU colleague Scott Galloway, professor of marketing, for instance, is quoted in a recent New York magazine piece as saying, “We’re going to see schools slicing and dicing programming and product management, and they will have a new weapon: remote learning. The best universities are going to be able to expand enrollment dramatically, which will result in chaos for the tier-two and tier-three school.”

In some ways, this new world is already here. Some online-specific programs are already offered at scale, conceived of by teams of faculty members and collaborators who are experts in instructional design and technology. These programs are therefore not the intellectual property of a single faculty member, and ownership agreements are designed to reflect this.

Purdue University, for instance, in October adopted an IP standard saying that courseware and online modules are commissioned copyrightable worked retained and managed as Purdue IP. The policy defines courseware as curricula for distance learning or e-learning, and it recommends that university personnel who help create it enter into a formal ownership agreement with the university. In the absence of such an agreement, however, the courseware belongs to the university, even after the professor or professors involved leave Purdue.

Remote vs. Distance

As written, the new Purdue policy doesn’t explicitly rule out its potential application to traditional courses offered remotely. And the policy was already controversial among some professors because the university did not consult the Faculty Senate in adopting it. Concerned that Purdue could try to claim ownership of lectures and coursework from any course moved online as a result of the pandemic -- not just those courses conceived of as "distant" to begin with -- faculty members urged Purdue to pledge it wouldn't make any power grabs.

“There’s a distinction between remote delivery of traditional classes and online courses, and that’s very important to maintain and understand,” said David Sanders, a member of Purdue’s Faculty Senate and an associate professor of biology.

Joshua Kim, director of online programs and strategy at Dartmouth College (and a blogger for Inside Higher Ed), also said there are key differences between online education and remote learning. In a traditional online program, he explained, “courses are designed over a longer time period and faculty often collaborate closely with a team in the creation of the digital content." 

If a team that consists of a professor, a learning designer, a librarian and a media expert is developing digital content for an online course, then shared IP ownership (between the professor and the school) is probably appropriate, Kim added.

In the emergency remote learning environment of today, however, he said, faculty members are most likely creating digital content on their own. Nonfaculty educators may be helping or training them, but professors who are digitizing their teaching materials for remote learning “should retain ownership of the IP for that work product.”

Purdue responded to faculty demands by saying that it would not reuse or commercialize materials that are commissioned copyrightable works under the policy without a faculty member’s written consent. The university also said faculty members will continue to own “instructional” copyrightable works, such as lecture notes, syllabi, lab instructions, problem sets and exams, under existing policy.

For Sanders, the takeaway from the experience was that “on these things you have to take collective action. People make a difference in what happens. Without that, faculty could have potentially lost all IP rights in posting everything online in the transition to remote instruction.”

Alice Pawley, associate professor of engineering education at Purdue and chair of its American Association of University Professors advocacy chapter, described the university’s clarification as something of a ceasefire during a life-and-death emergency. As things begin to normalize, however, she said, Purdue will need to address outstanding concerns about IP and Purdue Online's relationship to campus offerings, including who owns curricular program designs, not just individual courses.

While Purdue may not want have wanted to claim traditional coursework thrown online during an emergency as its property, things will look different going forward, Pawley continued. Even if Purdue resumes face-to-face instruction in the fall, as planned, many professors are preparing synchronous and asynchronous coursework to put online for maximum flexibility. Those materials will be more thought out, of a higher quality and potentially more tempting for a university to retain and use again in another context. 

“How much of this could be done,” or taught, "by someone who’s cheaper?” Pawley asked. 

The lines between remote coursework and online courses are becoming ever more blurred, she said. Another “bright line discussion that realizes the complexities here” is needed, as “the language of our intellectual property policies don’t incorporate the nuance necessary for an increasingly online environment. What it all ends up as is very muddy.”

Looking Ahead

The American Association of University Professors has also warned of IP threats during COVID-19. In a joint statement with the American Federation of Teachers outlining principles for academe’s response to the pandemic, the AAUP said that institutions “should not take this opportunity to appropriate intellectual property to which they would not otherwise have had access.” Teaching materials moved online because of the “one-time emergency created by COVID-19 are not the property of the institution for future use.”

Moreover, the statement said, “New contracts signed with online program managers specifically to handle this crisis should be of short duration, should contain robust protections for faculty intellectual property and should be fee-for-service only (not a percentage of tuition).”

Aaron Nisenson, senior counsel at the AAUP, said faculty members can best protect their copyright ownership during the public health emergency “by being clear that they are continuing to engage in traditional teaching” and just teaching “remotely” or from a “remote location.”

Faculty members should not agree to move to formal “online teaching” or “distance education,” he said, “and they should not agree to have those policies apply to their teaching, without first reviewing the applicable policies or agreements.”

To that point, the AAUP-AFT guidance on the pandemic response also says that colleges and universities “should acknowledge that transitioning a course to an online environment in a one-time crisis does not necessarily mean the course can be successfully taught in an online environment under normal conditions.” Short-term success “does not obligate the faculty member to teach the course online in the future,” the guidance says, and decisions about the future of a course format should be made in consultation with the appropriate faculty bodies.

What about putting a course on Zoom, YouTube or the like? Nisenson said this doesn’t usually result in a loss of copyright ownership, but he suggested double-checking specific contracts and university policies anyway.

Nisenson, like Sanders, believes disputes or questions about IP are best addressed by “faculty working together, whether through any union or through their faculty senate.”

Sanders advocates for more education for students on copyright issues, as well. His own course materials have appeared on a third-party study site, where students probably shared it. The incident made him think twice about what course materials he puts online, even now.

Some institutions, including Dartmouth, have proactively gathered IP tips and resources for faculty members this spring. Citing Dartmouth’s standing IP policy, the Dartmouth library's resource page says the college “does not claim rights of ownership in teaching materials, including when faculty are teaching remotely, except in very narrow circumstances as outlined.”

The current situation is also “an opportunity to share knowledge more widely and to use openly available resources,” and sharers can indicate how they want their content to be used through licensing tools such as Creative Commons, the page, which also has additional resources on privacy, states.

Kim said the “challenge that we all face with IP in higher education is creating a fair system of incentives and protections,” one that recognizes “the contributions of all parties” to the creation of that content. He advised concerned professors to consult with librarians at their institutions for their IP and general institutional insights.

“Academic librarians are also champions of faculty and the creation and dissemination of knowledge,” he said. “An academic librarian can help a professor think through different copyright practices, such as Creative Commons, that both protect a professor’s IP rights and serve the goals of dissemination and sharing.”