Distributed Learning Meets Intellectual Property Policy: Who Owns What?

By Dr. Veronica Diaz,
Learning Technologies Manager,
Adjunct Professor
University of Arizona

The rise of eLearning and technology in higher education—including distance education, digital repositories, and electronic courseware products—has changed the way faculty and institutions regard ownership and control of these materials. A new market exists for products that previously had little or no commercial value, especially as institutions become more adept and profitable at delivering and marketing distributed learning courses and programs. In turn, this has created a need for higher institutions to revise their existing intellectual property (IP) policies.

The authority and responsibilities of faculty members in this digital era regarding how courses are developed, taught, and maintained are in flux, and many existing institutional policies fail to address important questions raised in this changing environment. Distributed learning is vastly different from what has traditionally been covered with copyright (books, articles) and brings with it several important areas that must be addressed to ensure its long-term viability and proliferation.

One area is that of ownership—who owns what. In university intellectual property policies, it is not unusual to find little or no faculty involvement in the development of the policy. Few colleges and universities clearly grant IP interests exclusively to the faculty. It is far more common to find that the college or university has a policy that views courses as the property of the institution.

Another question involves all the other individuals involved in the creation of intellectual property. Current institutional IP copyright policies often include detailed distributed learning scenarios describing the participation of various individuals (media specialists, designers, instructors) in the production of instructional materials and corresponding ownership determinations. Some policies are particularly unique in addressing issues of content to include credibility and relevance and in assigning responsibility for such tasks beyond the original creator(s).

A well-developed IP policy should meet the diverse needs of those constituencies involved in development and delivery: faculty members, administrators, subject matter experts, instructional designers, and media specialists. Despite the rapidly changing distributed learning environment, institutions well-crafted IP policies create stability and foster productivity. The following recommendations come from a review of best practices of over 40 higher education IP policies addressing distributed learning and copyright.

Inclusive and Collaborative Policy Development
Institutions should develop clear policies, contracts, and agreements in order to create an environment in which all involved parties clearly understand their rights to ownership and control. This helps to prevent disputes and encourages innovation and participation over time. It is not unusual to find IP policies that focus on work of individual faculty. However, this traditional focus ignores the contributions of specialists when teams are used and fails to address new development models. Furthermore, it d'es not reflect the variety of motivations for developing digital resources within an institution. For example, digital repositories may be useful to an academic department intent on sharing resources, such as a repository of art images to teach a variety of art history courses. Conversely, some university administrators might prefer a learning content management system (LCMS), which is typically available only through a centrally controlled learning technologies center. An academic department may have collaboration and knowledge-building as its goal, while the institution's administration may be more interested in revenue generation. Faculty members may have in mind a cooperative/sharing model, especially within and outside of their department, while administrators may be inclined to protect their often-costly investment.

Policies developed by a limited constituency will most likely fail to address the range of issues represented by the above examples. A broadly constituted collaborative policy development process that includes all contributors will likely address the contributions of those outside the traditional faculty.

Organizational Goals and Culture
It is important to maintain a clear focus on the institution, college, or departmental vision and the goals for distributed learning within a particular context. Policy language may invoke the “work-for-hire” doctrine and/or “resources expended” language, thereby strengthening the institution’s ownership claims, or it may assign ownership and control to faculty members or other developers. Irrespective of the approach, all contributors should have a clear understanding of not only ownership, but also the context within the institution.

Flexibility and Adaptability
Institutions should strive to develop policies that are flexible and adaptable and are able to address changing models of learning technology development and future technological innovation. Since, one approach may not be appropriate for all situations, institutions should offer a range of options to include contracts, policy, or individually written agreements. This would allow for a variety of needs and interests to be addressed as opposed to imposing one policy on all.

Policy and Product Maintenance
Learning objects are an example of the critical and frequently unaddressed issue of maintenance. For example, maintaining a learning object’s content quality and currency may fall to a completely different individual or team than that which created the original object. Similarly, as more instructional products are transformed into digital objects (for instance, a classroom overhead projector presentation transformed into a Microsoft PowerPoint presentation) and removed from the larger course, how are such transformations addressed? Policies should help prevent the potential erosion of quality that may occur when the educational product is divorced from the producer. Thus, the responsibility for keeping the information up-to-date must be clearly assigned. Policy language must address issues related to the transformation of existing material to new forms.

It is critical in the rapidly evolving development of eLearning technology that institutions regularly revisit campus IP policies. A policy that is five to seven years old hardly addresses the issues found in today’s distributed learning products. While it may be possible to adapt policies developed for a traditional instructional lab setting for application to basic online courses, well thought out and developed IP policies are required to address the issues of more evolved distributed learning issues. Campuses need to examine their current policies to make sure they are clearly addressing issues that are presented by technologies such as LCMSs, learning objects and other emerging approaches. So, institutions would be wise to reexamine and revise policies on regular basis to keep pace with rapidly evolving technologies and practices.

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