Who owns the course? Online composition courses in an era of changing intellectual property policies

Computers and Composition IS, 2 15-228 ( 1998) ISSN 8765-4615

0 1998 Ablex Publishing Corporation All rights of reproduction reserved

Who Owns the Course? Online Composition Courses in an Era of

Changing Intellectual Property Policies

SUSAN LANG

Southern Illinois University

This article examines existing copyright law, the ambiguous case law concerning copyrightable material and educators, university policies toward patent and copyright law, and the changing nature of educational institutions in the 1990s to consider the question of who “owns” an online composition course, or any course for that matter, in the late twentieth century. I argue that composition instructors need to consider the following issues as they design and revise courses with a significant online component. Who has historically and contractually controlled course materials created by faculty members? Who owns course materiols developed for particular courses? Why should the transition to networked computing environments change the nature of course materials ownership? Are there substantiative differences between materials created for a traditional composition course and an online course? The answers to these questions may fundamentally change the ways instructors create and use instructional materials.

copyright and patent policy curriculum-legal issues instructional materials

intellectual property online courses

If you asked a group of English instructors what pieces of intellectual property they had

created recently, odds are slim they would mention instructional materials ahead of any

publishable articles or conference papers. Such results are hardly surprising. Despite the explosion of interest in copyright issues and the classroom, little has been said or written in composition journals about faculty-generated teaching materials as pieces of intellectual property. The issue of who owns the rights to these materials is particularly crucial for

composition instructors, because a greater percentage of their published work (as opposed to colleagues in literature and other disciplines) draws so directly on classroom materials and experiences. If educational institutions were unilaterally granted custody of the

substantial distribution rights defined by Section 106 of the 1976 Copyright Act, the careers of composition faculty, especially those at research institutions, could be compro-

mised. Thus, it is in our best interest to explore this question of course materials owner-

ship and to familiarize ourselves with the issues involved while the issue remains unresolved, and before other damaging precedents are set by the courts. This article exam-

ines existing copyright law, the ambiguous case law concerning copyrightable material

Direct all correspondence to: Susan Lang, Director of Computer Classrooms and Curriculum, Department of English, Southern Illinois University, Carbondale, IL 62901-4503. E-mail: <[email protected]>.

215

216 IANG

and educators, university policies toward patent and copyright law, and the changing nature of educational institutions in the 1990s to consider the question of who “owns” the online composition course, or any course for that matter, in the late twentieth century. I argue that composition inst~ctors need to consider the folIowing issues carefully:

. Who has historically and contractually controlled course materials created by faculty

members? . Who owns course materials developed for particular courses‘? Why should the transi-

tion to networked computing environments change the nature of’ course materials ownership?

l Are there substantiative differences between materials created for a traditional composition course and an online course?

COPYRIGHT LEGISLATION, CASE LAW, AND THE CLASSROOM

In considering the question of ownership of course materials, I turn first to past and present copyright legislation. In a typical employer-employee relationship, most products produced become the property of the employer in accordance with the definition of “works-made-for-hire.~~’ Section 101 of the Copyright Act of 1976 defined a work-for- hire as:

a) a work prepared by an employee within the scope of his or her employment: b) a work specially

ordered or commissioned for use as a contribution to a collective work, as a part ofa motion picture

or other audiovisual work, as a translation, as a supplementary work, as a compilation. as an

instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree

in a written instrument signed by them that the work shall be considered a work made for hire.

If one considers teaching classes to be within the scope of a faculty member’s work (and

for nearly all of us that is the case), then it appears an educational institution can legally claim ownership of materials produced for instructional purposes under the first portion of the definition. Although it initially seems that the second portion would exempt instructional works, which are defined later in Section 101 as “a literary, pictorial or graphic work prepared for publication and with the purpose of use in systematic instructional activities,” the existence of an employer-employee relationship as explained in part one would take precedence, and the conditions of the second part would apply only in the absence of the employer-employee relationship. In fact, under Section 201 (b) of the Act. “the employer or other person for whom the work was prepared is considered the author. . and, unless the

parties have expressly agreed otherwise in a written agreement signed by them, [the employer] owns all the rights comprised in the copyright.” Because it is clear that teachers are employees of educational institutions, the law, it would seem, has already granted custody of course materials to institutions.

Case law in this century, however, has cast some doubt on just how directly copyright law applies to the work of teachers. Russ VerSteeg (1990) described two cases, Shard1 11.

Grieses and W~l~~a~.~ v. Weisse~ that he said “simply cannot be explained using the work-for-hire principles developed by the courts unless they are recognized as explicit

‘Hereafter referred to as “work(s)-for-hire.” 2See Williams I?. Weisser, 273 Cal. App. 2d 726, 78 Cal. Rept. 542 (1969).

Who Owns the Course? 217

exceptions to the rule” (p. 393). In 1929, the Supreme Court of the District of Columbia decided in the case of Sherrill v. Grieves that “a professor employed by an institution of

learning is not obliged to reduce his lectures to writing, and if he does so they do not become the property of the institution employing him” (57 Wash LR 286). Forty years

later, Sherrill v. Grieves was cited in Williams v. Weisser, a case involving a UCLA anthropology professor who sued a company that purchased, reproduced, and sold his lecture notes to students. VerSteeg (1990) explained that the defendant, Weisser, “argued that Williams lacked standing, because UCLA owned the copyright to Williams’ lectures

as works made for hire” (p. 393). However, the judge decided in favor of Williams, apparently recognizing “that academic tradition, which had always assumed that professors

owned the copyrights to their works, was incongruous with copyright law and its attendant work-for-hire doctrine” (VerSteeg, p. 395).

Whether or not these two cases constituted a so-called “teacher’s exemption” to the 1909 Copyright Act’s work-for-hire doctrine is far from certain, as is whether or not that exemption also applies to the 1976 Act.3 Since the 1976 Act took effect, two cases focus- ing on copyright of scholarly publication have been decided; neither case provides

evidence for the continued existence of the teacher’s exemption. Both Marshall v. Miles

Laboratories, Irx4 and Weinstein v. University of Illinois’ contradict the Williams v.

Weisser decision. In the Marshall v. Miles Laboratories, Inc., a case involving a research scientist who wrote an article outside his regular work hours, it was decided that “a scholarly article written by an employee outside normal work hours was a work for hire under section 101(l) of the 1976 Act” (as cited in VerSteeg, pp. 400-401). In Weinstein v.

University of Illinois, a University of Illinois professor sued because he was listed as third author rather than first. VerSteeg (1990) noted that the case was dismissed by district court

on the grounds that the University owned the copyright, not on the basis of the 1976 Act, but rather, because the University’s official copyright policy-which was incorporated into official faculty contracts-controlled. (p. 401)

This case is of particular importance to the question of course materials ownership, because the presence of specific university policy overrules the Copyright Act itself. Equally disturbing, the circuit court decision acknowledged that if an agreement to the contrary (such as the university copyright policy) does not exist, “the work-for-hire doctrine applies to scholarly articles written by university professors” (VerSteeg, p. 402). The decision would also indicate that the teacher’s exemption was not, in 1986, univer- sally recognized and agreed upon by the courts.

The Basic Books v. Kinko’s6 decision, better known in the context of the fair use debate, illustrates another potential challenge to the instructor’s claims on course material. Although Section 103 of the 1976 Act defined a “compilation” as “a work formed by the

3VerSteeg (1990) noted in footnote 98/146 that the genesis of the term itself is uncertain. On the other hand, Barry Weiss (1995) actually claimed that “the Copyright of 1909 included a ‘teacher’s exception’ to the work-for-hire doctrine, wherein faculty could claim ownership of works prepared within the scope of their employment,” and that the 1976 Act “ignored the teacher’s exception, leaving the copyright ownership question unanswered.” 4See Marshall v. Miles Laboratories, Inc. 547 Federal Supplement 1326, 133&1331 (1986). ‘See Weinstein v. University of Illinois 811 F. 2D 1091, 1093-1094 (7th Circ. 1987). %ee Basic Books, Inc. V. Kinko’s Graphics Corp, Federal Supplement 758 (1991): 1522-1547.

218 LANG

collection and assembling of preexisting materials or of data selected, coordinated, or

arranged in such a way that the resulting work as a whole constitutes an original work of

authorship,” part of the grounds for the court’s decision in Basic Books 11. Kinko ‘s was that

“absolutely no literary effort” had gone into the assembling of the coursepack (as cited in

Woodmansee & Jaszi, p. 775). One wonders if this case will set a precedent for arguing

that an instructor has only limited claims to course materials because of a lack of “literary

effort” involved in their creation, unless the instructor includes in the coursepack a

substantial amount of her own original “literary work.”

RECENT DEVELOPMENTS IN UNIVERSITY PATENT AND

COPYRIGHT POLICY

Clearly, the courts have reached no conclusive decisions about ownership of copyright-

able scholarly work via the teacher’s exemption, and the broad wording of the work-for-

hire doctrine has given universities free rein in setting terms of ownership of employees’

work. In recent years, universities have paid far mom attention to the patent portion of

their intellectual property policies because of the potential income of patentable inven-

tions. As Robert Heterick (1994) wrote:

Colleges and universities have. certainly since the 1970s and 1980s. paid a fair amount of attention to patent policy, and striking it rich in biotechnology has been on the wish list of every research

university development officer. Copyright policy, on the other hand. has not captured similar atten-

tion on the part of institutional administrations. which habe generally seen it as part of the faculty

role in research output-something with little or no market value.

Historically, universities could afford to be generous with published research, especially

in the humanities, because such scholarly works rarely possess a patentable component.

For example, the 1995-1998 collective bargaining agreement between the Florida Board

of Regents and the United Faculty of Florida advised employees that

upon creation of a work and prior to any publication. the employee shall disclose to the Prehi-

dent or representative any work made in the course of university supported effc>rts. together with

an outline of the prc+ct and the conditions under which it was done. employees need not

disclose. books. articles. or Gmilar works, the purpose of which is to disseminate the results

of academic research and scholarly work. ($ I X..?(c) (I ) (3))

Thus, the Florida policy seems to follow the historical precedent of allowing faculty

members to own their scholarly works, even if the published work was at least partially

created as part of the employee’s job.

On the other hand, the intellectual property policy currently in use at Southern Illinois University does not make such clear distinctions. Revised most recently in 1992, the

policy stated that

any patentable invention product. process, discovery. or any copyrightable material developed by

a university employee of the university belongs jointly to the university and the inventor(s)/

author(s). hut .vhull be wvrd and controllrd ill the sound discretion of the wzilvrTi!\. irl M’u~.) thclt

will producr the gmmst hmejit to tile ur~iversity arrd to the puhlir. (Emp1oyee.s Hwidhok, p. 120.

italics added)

The policy does note, subsequently, that the university


shall not place any claim or restriction on any copyright resulting from scholarly activity with the

exception of material produced under specific written contract. Material produced under specific

written contract means any material which a faculty member is specifically assigned or directed to

produce as part of his or her employment responsibilities with the university. (p. 120)

The policy, then, states that materials produced as part of an individual’s employment

responsibilities could include,

hur are nor limited fo a) textbooks, workbooks, articles and other forms of literary matter; b)

dramatic works and materials; c) educational television/radio programs and works in other media

such as films, videotapes, and recordings; d) musical compositions and visual art; e) tests and other

measurement devices; and t) computer software. (p. 120, italics added)

If we are to find any sort of teacher’s exemption in the Southern Illinois University policy, it apparently extends only to scholarly works. What is left unsaid is who those

scholarly works belong to if they are based wholly or partially on instructional materials

developed for a particular university course. Of particular concern for composition instructors is that textbooks, works in “other media,” and software, all items composition

instructors commonly create and develop, are listed among the material the university deems potentially claimable under the scope of employment responsibilities. Unlike its

Florida counterpart, the Southern Illinois intellectual property policy is designed to allow the university to claim nearly any article produced by a faculty or staff member, especially if the work promises financial rewards.

Intellectual property policies containing this more integrated approach may well be the

coming trend, especially because university patent policies have for some time been moving toward a broader definition of institutional ownership. Pat Chew (1992) examined

patent policies of the universities with the twenty largest research expenditures in 1987, and found that, with few exceptions, university policies follow one of three approaches:

1. The “resource-provider” approach, which allows the university to claim ownership if faculty “make significant use of university resources, [which] presumably include work time, facilities, personnel, equipment, and funds” (p. 277);

2. The “maximalist” approach, which adds to the use of university resources the stipula- tion that faculty inventions result in “course of employment” (p. 277); or

3. The “supra-maximalist” approach, in which the university claims ownership of all faculty inventions and does not recognize any time during the faculty member’s employment outside the scope of employment (p. 280).

Of the three options, the maximalist approach leaves the greatest room for controversy. According to this approach, the university claims only those objects developed as part of

an employee’s responsibilities and with significant use of university resources, but the definition of what tasks constitute the employee’s specific responsibilities is left open to interpretation. If it is determined that teaching falls under “course of employment,” then

those materials may well fall under the purview of the institution rather than the individual faculty member.

Sheila Slaughter and Gary Rhoades (1993) examined the patent policies in place at the University of Arizona in 1969, 1977, and 1988 and found that approaches documented by Chew have, at one time or another, all been in effect at the University of Arizona. They asserted that

220 LANG

the state was increasingly the owner, organizer, and producer of commercially relevant scientific

products and activities. In 1969, the ownership and reward.s claims of faculty and the university

were substantial. By 1988, the claims of the faculty were reduced. (p. 292)

For example, in 1969, faculty could claim ownership of their work if a) they had created it for someone else in a consulting capacity; b) they had created it on their own time; or c) the university released ownership of the work to the faculty member. The 1977 policy

eliminated the first two conditions, and by 1988, there was “no recognition that faculty had time that was separate from and outside of the control of the university” (Slaughter & Rhoades, p. 294). Slaughter and Rhoades also noticed that the ideological rationale under- lying each patent policy changed, shifting from an emphasis on the academic aspects of

science and research in 1969, to considerations of both public interest and private profit in 1977, and then, in 1988, to a stance that the state’s involvement in profit-oriented activities was essential to public interest (p. 292).

This increased university involvement in profit-oriented, entrepreneurial activities is not without its dangers, according to Barry Weiss (1995) who wrote that

[Universities] run the danger of confusing their priorities. For example. university researchers

engaged in the scholarly exchange of ideas through the publication of articles in journals or post-

ings on the Internet could defeat potential patent protection if they wait too long before filing a

patent application. This is because the Patent Act denies a product patent protection if “the inven-

tion was. described in a print publication in this or a foreign country. more than one year prior

to the date of the application for patent in the United States.” Since information-exchange activities

are a fundamental part of a university’s academic mission, the profit motive can interfere with the

researcher’s autonomy, forcing monetary and monopoly concerns to overshadow the quest for

ideas and technological advancements.

Despite these potential conflicts, universities show few signs of reducing the scope of their ownership claims to faculty work. Chew (1992) cited the 1933 patent case of the United

States v. Dubilier Condenser Corp., 7 in which the Supreme Court concluded that an employer owns an invention only if the employee is specifically hired to invent that particular invention, as a precedent for granting ownership of most inventions to faculty. Chew (1992) maintained that the most the employer retains is a “shop right”-the nonexclusive right to practice the invention. The employee/inventor continues to own the invention, as well as the exclusive rights conferred by the patent, if applicable. On the other hand, because of the shop right, the employer cannot be excluded from accruing benefits from the invention (pp. 269-270). Chew (1992) posited that the reason most universities succeed in claiming ownership of faculty inventions rests less on legal precedent and case law than on faculty members’ ignorance of their own rights and their reluctance to test

university policies (p. 281). Chew’s (1992) most essential point, for the purposes of this article, was his contention that the “hired to invent” standard is narrow and leaves little room for the typical university faculty member to be considered an employee specifically “hired to invent.” The question that remains, of course, is what, exactly, is a university faculty member hired to do? If a faculty member is hired to teach, then are materials produced by that faculty member owned by the university, because they are created within the specific scope of the faculty member’s employment? Or, would the university have. as Chew contended, only a shop right to those works?

‘See United Stutes 11. Duhilier Condenser Corp., 289 U.S. 178. 187 ( 1933)


Historically, then, the situation is unclear. Neither existing intellectual property legislation nor case law provide school administrators or faculty with easy answers to the question of who owns the composition course materials created by individual faculty. My point here is that such a question has not been as important in the past, when teachers and students were constrained or contained within the physical boundaries of the university. The absence of technology budgets for the humanities has also minimized the potential contributions of new ways of teaching composition with computers. If, however, as so many have argued, the traditional physical and temporal boundaries of the university are poised to fall, if the current combination of economic pressures on institutions to maintain

viability and continued advances in network technology continues, the question of who owns instructional material will assume a far greater importance. In the case of humanities courses in general and composition specifically, I believe we have not been substantially challenged for control of teaching materials because they are valuable to institutions only because they have been attached to the instructor’s physical self. But economic pressures both external and internal, as well as continued technological advances, are changing the potential of what can be and will be valued by our institutions.

THE ECONOMIC CATCH-22

Anyone involved in education at any level is all too aware of the frequency with which the terms “productivity” and “efficiency” are applied to educational institutions. As Seymour Papert (1994) noted, “higher education is suffering from a cost disease today, with costs increasing for the last 25 years (along with those of pharmaceuticals) at rates 3 to 5 percent higher than inflation.” Traditionally, composition courses, as required components of the university core curriculum, have produced revenue for schools, but reduced class size and labor costs have offset any dramatic financial gains for the institution as a whole. In an era marked by decreasing state and federal funding, roller-coaster enrollment, and institutional downsizing, the pressures on academic units to demonstrate their effective- ness and economic viability have made it impossible for many writing programs to incor- porate technology on more than a small scale, and usually as an attachment to existing curriculum. The cost of electronic classrooms in which students meet face-to-face as they do in traditional settings has thus far only reinforced this perception that such courses are not economically feasible, especially when a large number of student and faculty machines must receive frequent upgrades and repair and faculty clamor for the training and professional development time needed to learn to teach in electronic environments. When teaching online was a curiosity practiced only by isolated instructors, few university administrators paid attention and instructors could do largely what they wished with their materials.

Yet, this may all change as administrators search for ways to make their institutions function more productively in the face of decreasing government support, especially if they continue to view information technology as a centerpiece for change. James R. Mingle (1995) proposed that “technology development in the delivery of instruction may call into question virtually all of the organizational and financing policies operating in the states,” and that

historical relationships between costs and the production process in higher education are being

turned on their head. New delivery sites no longer look like “unnecessary duplication” but a way

222 LANG

to pay for the significantly greater up-front costs of a distance learning operation. Assumptions

about appropriate student/faculty ratios, which are at the basis of most funding allocation systems.

are being called into question.

Similarly, Robert Heterick ( 1994) called for the formation of a learning infrastructure based on information technology which would complement the existing structures supporting research and teaching:

We have an extraordinary national research infrastructure. and a highly developed teaching

infrastructure (composed of institutions of higher education and their physical plants and faculties.

publisher\ of textbooks, and shared precepts of curricula promulgated through disciplinary soclet-

ies). [However] Learning is still primarily place and time constrained, offered in a one-sire-fits-all

style characteristic of the industrial era.

And, Andrea Lunsford and Susan West ( 1996) alluded to this teaching infrastructure as the most probable reason for continued perpetuation of “traditional concepts of author-

ship, authority, and ownership of intellectual property” in the “contemporary writing [and literature] classrooms“ (p. 397). Lunsford and West also considered the location of this transaction and asserted that “composition instructors-in the (entitled) role of teacher/ authority-have typically attempted to own the space of the classroom, labeling it with individual knowledge claims and perceiving courses as opportunities to demonstrate the

teacher’s expertise, rather than to facilitate collaborative learning” (pp. 397-398). In addi- tion, they maintained that the “realities of late twentieth-century existence in a quite liter- ally electrified world” (p. 400) will soon destroy the notion of classroom as teacher-

centered, and thus. teacher-controlled, performance space.

The question is, then, what will replace the classroom as we currently know it? Current

(and future) networking technologies provide the capability of delivering courses to a wider audience which were heretofore limited by the physical boundaries of the university. The idea is not new; the British Open University has been delivering distance education since 1969, and the Air Force Institute of Technology has delivered courses via video, audio, and the Internet since 1992. However. the distance education movement as a way to

reach previously untapped student markets is gaining momentum. One of the most ambi- tious distance education projects is the Western Governors University, described as

ZI virtual unicersq in the making. backed by the governors of IS western states and one tenitor).

The goals of the university include expansion of access to postsecondary education for the citizens

of the western state%. cooperative efforts by member Atatec to develop curriculum. and the creation

of assessment standards based on student performance rather than “seat time” measures of perfor-

mance. (“In the knoti .Western Governers University.” I YY7. p. 3)

In a 1997 Educom RrrGerr~ interview. Colorado governor Roy Romer described some of

the premises behind the university:

Look. we’re coming into a new era. The traditional “talking head” in front of a clad of XI-plus kid%

in college tries to accomplish three somewhat distinct educational transactions-( I) delivering

information: (2) dellbering skills: (3) providing coaching in the ability to reason. We need to look

at that clubter of transactions and break it up. We don’t need a talking head any longer to deliver

information. ho we reverse it, and make the whole process student-oriented rather than faculty- and

institution-oriented.

This new emphasis on creating distance education courses that respond to the needs of the growing body of nontraditional students promises to move distance education beyond the


realm of previously taped lectures and live performances by faculty members with two-

way audio feeds. In the past, universities have tried a number of strategies to make distance education more attractive to students; in one of the more bizarre cases of the

work-for-hire principle in action, the Florida university system hired an actor to deliver lectures prepared by faculty members! (Joint Committee on Instructional Technology of

the Florida State Legislature, 1995, p. 30).

Faculty unions are expressing growing concern over the development and subsequent ownership of distance education materials created for new technologies. In “Technology and The Unions” (Monaghan, 1995) Janis Bruwelheide suggested that

faculty members who prepared material for telecourses that were offered repeatedly would need to

bargain for fair compensation. At the outset they should seek full ownership of materials, or at least

a joint ownership. (A17)

Bruwelheide also strongly suggested that faculty avoid any type of work-for-hire agree-

ment that granted full ownership of materials to institutions. In the same article, several union leaders concede that ownership rights of course materials “had not yet become major issues because [relatively] few professors were using teleconferences or networks

such as the Internet in their teaching” (as cited in Monaghan, 1995, A19). If such initia- tives as the Western Governors University catch on, ownership rights will become

increasingly crucial, especially because the operating papers issued thus far by WGU make no mention of a governance role for faculty in developing curriculum or academic standards (“In the know,” 1997, p. 3).

Clearly, administrators and university governing bodies have high hopes for distance

education. In an era of increasing competition for the student dollar, administrators hope their institutions can assemble a distance education package that will draw students unable to physically attend classes on campus. They also see the potential of creating corporate/

academic partnerships, of delivering training to employees of area businesses that has previously not been feasible because of time or distance constraints. Although it is hard to predict how those outside the field of computers and writing view online composition

courses and whether or not online composition courses would be part of a distance education package, the question composition instructors should prepare to answer is how easily

adaptable the courses they currently teach would be to distance education environments. This is an important question, because faculty apparently have few proprietary rights to telecourses and current discussions on the topic, such as the one considered in the follow-

ing paragraphs, seem bent on further limiting faculty rights to course materials.

A 1995 report by the Joint Committee on Information Technology of the Florida State Legislature examined a variety of issues related to intellectual property and distance education. The report first considered distance education at the higher education level, examined current policy toward the creation of distance learning materials, and reported that “any work created with university support becomes the property of the university.

Each university [in the Florida state system] then provides for faculty compensation [usually in the form of short-term release time]. Telecourses in the community college and university system generally have not been treated as creating intellectual property rights for the faculty/staff who participate in their development and delivery” (p. 5). Thus, this existing policy already gives rights to any materials developed for distance learning courses to the university.

224 LANG

However, the K- 12 situation is not so clear. The Florida report noted that the state currently has no standardized policy for intellectual property agreements with its K-12

teachers. Because there is no policy in place, the report described a potentially disturbing situation:

Because the Internet has dramatically facilitated the nhility to disseminate teaching materials. there

is the possibility that a creative K- 12 teacher may develop a highly successful multimedia course.

For example. that teacher may develop a revolutionary, or at least cutting edge, method ofteaching

via the Internet, utilizing unique course materials or even a cartoon character along the lines of the

Public Broadcasting System’s Barney the dinosaur. While the Icour\e] material would nonetheless

he copyrighted, unless a policy were articulated beforehand and an agreement reached. the copy-

right would rest entirely with the teacher. Although it may be considered remote at present, such a

scenario is arguably plausible. (pp. 32-33)

The committee also proposes that although the “work for hire provision might bolster the

institution’s claim [to any materials developed for such a course], it is far from certain that

would be enough to make such a claim stand up in court,” and that such claims become more problematic “if a teacher pursues the creation of such material on their own time

[and, one would presume, their own equipment], yet with knowledge acquired on school time” (p. 43). In light of such ambiguity, the committee urges that school districts be

required to adopt guidelines for determining ownership of course materials, because the “state’s financial interests may be at risk” until explicit policies are made (p. 8).

Additionally, recent case law. even as it acknowledges the ambiguous nature of determining whether or not a work was made for hire, presents a set of conditions that ulti-

mately favor the institution over the individual. The first was the 1988 H~z,vs 1’. Sot7y Corp.

of America8 case, in which two high school teachers had written a word processing

manual, sections of which were incorporated verbatim by Sony in a revision of the

manual. The case was thrown out on procedural grounds: despite the dismissal. the circuit judge wrote at some length on the pork-for-hire doctrine. Although the judge reaffirms the survival of the teacher’s exception after the enacting of the 1976 Act, he acknowledges

that this discussion does not reach cases “where a school directs a teacher to prepare teaching materials and then directs its other teachers to use the materials too” (VerSteeg,

1990, fn. p. 158). This observation does not bode well for those faculty members specifi-

cally directed to produce materials, print-based or electronic, for a writing program. Simi- larly, Circular 9 (1995) from the United States Copyright Office discussed a 1989 Supreme Court decision ~C~~f~lirzit~ for Creative ~~~il-V~~Ie~7~~e v. l&+8), which found

that the determination of “whether or not a particular work is made for hire is. . . difficult because the statutory definition of a work made for hire is complex and not always easily

applied.” The court held that to determine whether a work is made for hire, one must first ascertain whether an “employer-employee” relationship exists as defined by agency law.

Determining factors included:

l Control by the employer over the work (e.g., the employer has a voice in how the work is done, has the work done at the employer’s location. and provides equipnlent or other means to create work).

‘See HUTS ~8. Son.v Corp. Qfhwrica 847 F. 2D 4 I?. 416-I 7 (7th Cir. 1988).

‘)See 490 U.S. 730.


. Control by employer over the employee (e.g., the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assign- ments, determines the method of payment, and/or has the right to hire the employee’s

assistants). . Status of employer (e.g., the employer is in business to produce such works, provides

the employee with benefits, and/or withholds tax from the employee’s payment).

The Circular (1995) also noted that “the closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment would be a work made for hire.“” Ironically, part-time adjunct instructors

may find that in the court’s eyes, they have more right to whatever instructional materials they develop than do full-time, tenure-track, or tenured faculty.

TENTATIVE CONCLUSIONS: OR, “THE FUTURE ISN’T WHAT IT USED TO BE”

Clearly, the work composition instructors do and the knowledge of electronic communication technologies will play a vital role in helping educational institutions move into the next century. The course materials we develop in the short term may well become important parts of our institutions’ recruitment and retention programs. If so, it seems logical that being able to access certain materials freely on the Internet would be counterproduc- tive to institutional interests. After all, if someone does create a “revolutionary, or at least cutting edge” (Joint Committee, 1995, p. 32) course, a school could stand to lose substantial amounts of tuition fees, especially if the course could be offered on the Internet and taught as part of a distance education initiative. Many composition programs have already taken a portion of curricular development decisions out of the hands of the individual instructor. This is particularly common at schools where the bulk of first-year composition courses are taught by graduate students and adjunct faculty, the former constrained by their position as both teacher and student, the latter often juggling two or more part-time positions. In an attempt to compensate for the different teaching styles, experience levels, and the limited time these instructors may have for course development, many larger programs have taken curricular decisions out of the hands of the individual instructor by using common texts, and in some cases, common syllabi designed by a director of first- year writing or by a committee of permanent faculty.

It is also unsettling to think course materials represent only a small portion of the instructional items generated by faculty. Many composition specialists currently work as writing center directors and develop online components of these centers or create technology training programs for faculty and staff development. Assuming these duties are specifically written into an individual’s contract, it is probable that an individual would be forced to leave this work behind should she leave that institution and would be subject to legal action should any subsequent work appear to borrow too heavily from her earlier efforts. Soon, those of us who create materials for specific classes may be equally at risk.

So where does this leave computer-mediated communication (CMC) specialists and their courses? If we have maintained control over our own work only because the courts

“See Hays v. Sony Corp. OfAmerica 847 F. 2D 412,416-17 (7th Cir. 1988).

226 LANG

believe that, as in the Williuttts case, “no practical reason existed for. the University [to own] the copyright since there was little financial reward to be earned” (VerSteeg, p. 395).

where does that leave us if there is now a more substantial economic reward? The Will-

imtts decision also commented on the highly mobile nature of academics and how the awarding of copyright to an institution could prevent the instructor from using the material, should she change jobs (VerSteeg, pp. 407-408). The current job market and univcr- sity climate have made many academics into nomads who patch together term appointment after term appointment; even more common are the academics forced to teach part-time at two or even three institutions to pay bills. Given course loads and commuting time for some of these instructors, if educational institutions demand to control access to course materials developed for use at a particular school. the effect on these part-timers could be devastating. In such a climate. educational use of the Internet would certainly decrease, as no instructor could risk placing materials on the Web for fear a previous employer would see them and initiate legal action. Is this a far-fetched scenario’! Hardly, at a time when an industry feels it can blame and consequently sue a talk-show host for comments made on her show that have allegedly led to a loss of industry profits. ’ ’

What we are currently witness to, then. is the clash of two types of currency. Most of us are highly invested in intellectual currency, the type of information that carries less value outside the academy than within. Few of us wouid deny that the sharing of information that goes on among technorhetoricians has enriched most of our teaching and, consequently, the education of the students enrolled in our courses. What we have tended to ignore, though, is that many institutions have long been invested in turning our intellectual labor into hard currency. and that in the humanities, that currency may come in the form of innovative course design and implementation rather than research grants. As John Oberlin ( 1996) concluded:

Part of the mythology dominatin g information technology management i\ that it ib ~111 about tech- rlical issue\. It cm he argued instead that it‘s actually all ahout managing change-technvxl. wcial, pedagogical, political, and financial. We face. at the end of the millennium. a number

of critical strategic decisions about the business of higher education. What appears to be a discus-

sion about technology is, in reality. B discussion about curriculum. Rrwurce allocation will deter-

mine what is done and what is not done for our students. (p. 12)

We cannot forget that these questions about who develops and subsequently owns course materials are just one small component of an enormous picture-of how the educational system itself is changing. To assume we will not be subject to systemic change would be a grievous oversight on our part. Too often those of us committed to the use of technology in our work get caught up in the daily operating problems and find ourselves with no time to consider, for example, what form education will take “in an age when nn one talks any

longer about hardware and software platforms, when protocol problems have been solved. and when the new issues are the ancient issues: semantic, rhetorical, philosophical, and scientific” (Heterick & Gehl, 1995). More specifically, we will need to examine such issues as: What will a “course” entail‘? Who will design, direct. and teach it? Will we still draw distinctions between distance education and traditional education? And, the most

“I am. of course, referring to the civil suit brought by a group of Texas cattlemen against Oprah Win- frey for allegedly misrepresenting the beef industry on her show.


immediately relevant question: What will being a faculty member entail? As with ques-

tions in other areas of intellectual property, the issue of who owns the course is firmly grounded in our present model of the educational institution and the faculty reward system. I suspect that the grounds for debating this issue will shift radically within a

decade. Until then, the question of “whether a teacher exception exists-and if so the scope of that exception-pose[s] an imminent financial and emotional dilemma for teachers and schools” (VerSteeg, p. 413).

Susan M. Lang is an assistant professor of English at Southern Illinois University where she teaches courses in literary theory, composition, and film and trains graduate instructors in using computers in the classroom. Her e-mail address is <[email protected]>.

REFERENCES

Chew, Pat K. (1992). Faculty inventions: Who owns the golden egg? Wisconsin Law Review, 75,

259-306.

Heterick, Robert, & Gehl, John. (1995). Information technology and the year 2020. [World Wide Web]. Educom Review, Online. Available: <http://www.educom.edu/web/pubs/review/ reviewArticles/30122.html>.

Heterick. Robert. (1994). A new order of things. [World Wide Web]. Educom Review Online. Avail- able: <http://www.educom.edulweb/pubs/reviewlreviewA~iclesl29l68.html~.

Joint Committee on Instructional Technology of the Florida State Legislature. (1995). An overview of intellectual proper@ issues ussociated with distance learning in Florida. (ERIC Document Reproduction Service No. ED 393 464).

In the know. . . Western Govemers University. (1997). NEA Higher Education Advocate, 15(l), 3.

Lunsford, Andrea, & West, Susan. (1996). Intellectual property and composition studies. College Composition and Communication, 47, 383411.

Mingle, James R. (1995). Changes ahead for state policy in higher education: the world comes to the academy. [World Wide Web]. Educom Review Online. Available: <http://www.educom.edu/ web/pubs/review /reviewArticles/30408.html>.

Monaghan, Peter. (1995). Technology and the unions. The Chronicle of Higher Education, 4/(22), A17, A19.

Oberlin, John L. (1996). The financial mythology of information technology: Developing a new game plan. Cause/Effect, 19(2), 10-17.

Papert, Seymour. (1994). Transforming and preserving education: traditional values in question. [World Wide Web]. Educom Review Online. Available: <http:llwww.educom.edu/web/pubsl review/reviewArticles /29636.html>.

Romer. Roy. (1997). A Matter of Degrees: Colorado Governor Roy Romer on the Western Governors University. [World Wide Web]. Educom Review Online. Available: <http://www.educom.edu/ web/pubs/reviewlreviewArticles/32116.html>.

Sherrill v. Grieves 57 Wash. L. Rep. 286,20 C. 0. Bull. 675 (1929).

Slaughter, Sheila, & Rhoades, Gary. (1993). Changes in intellectual property statutes and policies at a public university: Revising the terms of professional labor. Higher Education, 26,287-3 12.

Southern Illinois University. (1996). Employees handbook. Carbondale, IL: University Document Editing.

United States Copyright Office. Copyright Act of 1976. [World Wide Web]. Available gopher: <marvel.loc.gov:70/1 l/copyright/circs>.

228 LANG

United States Copyright Office. (1995). Work jiw hire. [World Wide Web]. Available gopher: <rnarvel.Ioc.gov:70 Directory: /OO/.ftppub/copyright/circs/circO9>.

VerSteeg. Russ. (1990). Copyright and the educational process: The right of teacher inception. 101s~ tart Rei%m, 75, 38 I-4 16.

Weiss. Barry. (1996). Technology transfer: From the ivory tower to the marketplace. [World Wide Web]. Educom Review Online. Available: 4~ttp:lJwww.educom.edulweblpubslreviewi reviewArticles/ 1539.html>.

Woodmansee, Martha. & Jaszi, Peter. (1995). The law of texts: Copyright in the academy. Collqe En&h, 57. 769-787.

Documents

Who owns the course? Online composition courses in an era of changing intellectual property policies