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More than Digital Content: Long Live Your Course

Having served as a dean and an interim provost, as well as being a widely published faculty member himself, Jack Wilson has seen the complex issues of intellectual property up close and from nearly every angle, including digital rights. Here, he reflects on the nature of digital content in relation to the policies and practices that are still evolving within higher education.

It all used to be so easy. As far as a university administrator was concerned, content came in two forms: written materials and patents. Over the centuries, a very simple way of dealing with these was developed: Faculty were left the ownership of the text materials, and the university got custody of the patents. The university benefited from publication of the texts because the fame of the professor accrued to the institution, which was always recognized on the article or textbook. The faculty benefited from the patent because it could be included in the promotion and tenure process, and they would also share in the profits through a pre-negotiated percentage of the royalties.
Then the world changed. As the bumper sticker says: "IT happened." Information Technology, that is. Being digital. What was clear became obscure. What was known became perplexing. Content now became digital, and it could be copied, altered, stolen, distributed, and sold at rates never before imagined. When greed and paranoia are added to sudden change, it is a recipe for trouble, and that is exactly what we have.
Trouble in the Kingdom
Perhaps greed struck first. The media decreed that "Content is King," and corporations moved to lock up as much content as they could and then worked to develop the digital distribution systems to capitalize on that content. Universities, seeing dollars in digital content, began to promulgate policies to assert their intellectual property rights. Faculty were not much wiser. They began to think that their content was so valuable that they were going to be able to make big money by digitizing and selling it. Very few did. Content providers, the companies formerly known as "publishers," moved to take advantage of their ownership of the content.

Every publisher had a strategy
to capitalize on its content in the digital world. For example: Harcourt Higher Education was launched as a college in 2000 and confidently predicted "50,000 to 100,000 enrollments within five years." Unfortunately, by late 2001, the Harcourt effort was gone after enrolling a total of 32 students.
I am not suggesting that faculty and universities do not have the right to be compensated for their intellectual property. I believe they do. I am suggesting that a foolishly inflated sense of the value of their property (read: greed) leads to foolish and counterproductive policies and actions.
So much for the greed. What about the paranoia? While serving as provost and dean at Rensselaer Polytechnic Institute, I had to adjudicate many disputes between faculty and the university legal counsel over the ownership of digital materials. At one point, the counsel asserted that "anything on the university servers becomes the property of the university." That got the faculty excited. It also created havoc in our education programs as faculty threatened to remove materials from our Web sites. With a lot of work and reference to tradition and legal precedent, we were able to craft a policy that was acceptable but far from perfect.
As part of several national projects, I have had the opportunity to work with faculty and administrators from all over the country. Many faculty seriously fear that their work will be digitized, their lectures put in digital video, and then there will be no more need for them. I was once on a panel where another panelist suggested that we were moving toward a day when Paul Samuelson would teach all the introductory economics courses and Jack Wilson would teach all the introductory physics courses. I stood up and said, "I object!" This is a serious misconception that seems to equate the role of the professor with the presentation of content. I have often said that any faculty member that could be replaced by a videotape, CD, or Web site should be replaced—as soon as possible. I don’t expect many to be replaced. Teaching is not presenting. Watching is not learning.

What’s Wrong with This Question?
It has become popular, in the past few years, to ask the question: "Who owns courses?" I think that is a question that comes from confusion between courses and course materials. I also think it is a profoundly dangerous question. Merely asking the question presumes that someone actually "owns" courses. That contravenes centuries of traditions of freedom of speech and academic freedom. In some sense, academic disciplinary communities take ownership of courses though defining a general community understanding of a course’s content. Usually this definition is arrived at informally and over a period of time. It is always under discussion and revision.
At times, a community makes a more formal effort to define a course. This definition of ownership is acceptable because it is community-generated, permissive, non-restrictive, and non-c'ercive. For this reason, the syllabi of particular courses (in mathematics, history, economics, art, and so forth) look pretty much the same wherever they are taught. Not identical, but very similar. One can own course materials, but one cannot own courses, syllabi, pedagogies, or ideas. Those are in the collective custody of various communities who are charged with their stewardship, but without the prerogatives of ownership. We do not want to allow the necessary dialogue over ownership of "materials" to in any way alter this essential freedom.

The Least Valuable
What have we learned over the past few years? Teaching is not about content. That d'es not mean that content is not important. I have taught physics (and other subjects) for 33 years. The content is very important. It is just that it is a commodity in most cases. The introductory courses that I have taught use pretty much the same content as those taught by nearly every other professor in the world. In fact, the content found in the introductory physics courses of the 1980s was substantially the same as that found in the courses of the 1940s.
When MIT announced that it was providing free access to the materials from all of its courses, I was immediately called by several reporters all asking variations of the question: "If MIT is giving away their courses for free, why would anyone pay for courses from UMassOnline?" I would ask the reporter if MIT was giving away access to their classes, their academic credit, their faculty, their students, their campus, their library, or any other aspect of their educational environment. The answer was always no. MIT is planning to give away free access to some or maybe even most of their content. That is all. Of the entire value chain of higher education, content is the least valuable part.

It All Adds Up
Another way to look at this is to point out that more than 170 students paid more than $3,000 each to be in my "live-on-line" graduate class last academic year at RPI. All of the content of that class was available for free on the Web or available for roughly $50 in a text. If so, why were students so eager to pay the $3,000 tuition that I had to raise the course enrollment limit four times? These students were certainly interested in the content, but they were far more interested in the holistic educational experience, which included "live-on-line," or live interaction with a faculty member, stimulating interactions with other bright and experienced students, team-generated case studies, academic credit from a well-respected university, and the experience of being part of an academic community.
Looking at it from another angle: UNext, through its Cardean University offspring, planned to acquire content from five leading universities in the United States and Europe and then use that to offer degrees from Cardean. They spent amounts up to $700,000 per course to massage that content into very well-produced online courses. Unfortunately, the expected market has yet to materialize. Students want access to Chicago, Columbia, Carnegie Mellon, and Stanford degrees; to faculty, fellow students, and classes; and not to their content.
Harcourt officials stumbled over the content issue in a different way. As a leading content provider, they assumed that they had a leg up on the competition with their extensive library of content. To their credit, they quickly realized the need for the rest of the value chain and set about building it from scratch. Still, it is hard to build the kind of reputation in a few months that took universities more than a century to acquire.
Publishers make a business by aggregating this content value over a large number of providers. It may be true that the content is worth only $50 out of a course that costs $3,000 per student to deliver, but this 1.7 percent adds up when spread over hundreds of thousands of students in thousands of universities. Content is worth more to the publisher than it is to the university. For a few faculty members—the authors—the content is worth more to them than it is to the university.

Rights and Compensation
Online courses have raised further questions. While textbooks were often the product of one or two authors, teams of faculty, staff, students, and even commercial providers often produce online course materials. How should value be apportioned? There is also a need to provide for reusability of materials that were produced, often at great expense. Some programs have attempted to solve this problem by invoking the "work for hire" doctrine. That is unlikely to work given past traditions in academe. It is also unnecessary, in my view. There are better ways to apportion credit and value.
One way that has worked in the past is to negotiate royalty-free rights of reuse for each party. Then the materials may be reused in future classes, and they may also be reused by the faculty members for future (electronic or traditional) publications. In other cases, it may make sense to pay a royalty for reuse. That has often been done for reuse of video materials. When a faculty member’s reputation is clearly linked to materials, there will also have to be provision made for ensuring that materials are not marketed in a way that would be detrimental to the faculty reputation. Although many faculty members would wish that they could also control the quality of use, that has never been possible in the past (with textbooks and other materials) and is unlikely to be possible in the future. Fortunately, the public has long been accustomed to that and rarely holds the original author responsible for misuse of the materials because they know that the author d'es not have this control.

New Definitions from Old Principles
We know that the laws and customs for the new world of digital content will be hammered out in court cases, union negotiations, and faculty senate deliberations over the coming years. If we want to find a safe way through this it would be helpful to remember a few principles:

· The value of a university learning experience, online or traditional, is far more than the value of the content.
· Content-based intellectual property is more valuable to the faculty than it is to the university.
· Development of digital materials will require some sharing of ownership between faculty and the university with minimal restrictions on reuse by either and proportional compensation to each for their contributions.
· No one can or should own courses, syllabi, pedagogies, or ideas.

Defining intellectual property rights and sorting out digital content management issues will undoubtedly be a long and tedious process, but attention to the underlying principles may help us through.
Jack M. Wilson is chief executive officer of UMassOnline. [email protected]

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