Faculty must defend their rights to their intellectual property, which are increasingly under threat, according to a draft report released by the American Association of University Professors.
The report, called “Defending the Freedom to Innovate: Faculty Intellectual Property Rights after Stanford v. Roche,” argues that university attempts to assert ownership over faculty intellectual property have accelerated since – and in response to – that 2011 U.S. Supreme Court decision.
The AAUP has long been concerned with faculty members' right to own patents for whatever they have invented. Colleges previously often sought to assert control over patents but generally left faculty members' ownership of their courses and other writings alone.
With the emergence of MOOCs, however, colleges have begun asserting ownership of the courses their faculty members develop, raising the question of what is keeping such institutions from claiming ownership of other scholarly products covered by copyright, such as books.
Now, as online courses soar in popularity, a battle is beginning over who should own them. Though little noticed, it’s a fight that could change longstanding traditions about faculty control of classes they create, and influence the future and success of online higher education.
Universities hope to make money off these courses, which can enroll thousands of paying students instead of the few hundred who can fit inside the largest brick-and-mortar lecture halls. But many faculty fear that their work may be altered for the worse, or that universities will employ other, less-qualified people to teach them.
The Bundle of Rights: What exactly does a copyright holder "own"?
1. Copyright law gives creators the exclusive right and authority to a "bundle of rights." Thus the author owns not only the specific work, but the right to control its use. See 17 U.S.C. §106.
2. This bundle of rights includes the right of:
a) Reproduction (the right to control all forms of copying of the work);
b) Translation, abridgment, revision (the right to control derivative works);
c) Public distribution; and
d) Public performance and display.
3. Therefore ownership includes not only immediate but also future rights. It includes control over future revisions of syllabi, online courses, textbooks, etc., and rights and uses at one's home institution versus those faculty take with them when they leave.
The AAUP IP report web site presents cases where universities have just imposed new and serious financial and career penalties on faculty who want to preserve their IP rights--forced withdrawals of grant applications, denial of salary increases. All this follows upon new U demands for faculty to sign away their patent rights for life.
Fast-growing third-party providers such as the Harvard-MIT collaboration edX, which collects and distributes courses from at least 30 universities around the world, leave the question to be resolved by member institutions.
“We don’t own it. The university does,” said Tena Herlihy, general counsel for edX. “The universities create the course and the content.”
No, say angry faculty; universities don’t create anything. They do.
“We are issuing this report in the midst of these fundamental changes in the character of faculty rights and academic freedom,” AAUP says. “Our purpose is to put the dialog on intellectual property on a new foundation, one that leads to a principle-based restoration of faculty leadership in setting policy in this increasingly important area of university activity.”
Historically, professors do share intellectual property on inventions and products created with university support, but books tend to be controlled entirely by the faculty authors, even if they, too, benefited from the college resources. Property models for online content are still emerging.
But many faculty are happy to give up ownership for the sake of being able to reach more students, as they can do online. And universities argue that they are investing considerable resources in the development of online courses and have a right to own them. Also, most universities pay faculty extra to develop online courses.
Tracy Mitrano, director of IT policy and the Institute for Computer Policy and Law at Cornell University, said it’s a good idea – and essential – that such negotiations regarding online course enterprises happen before faculty work begins. But because each course is different, she said, it’s important that blanket policies are flexible, and can be adapted to each situation.
For example, she said, the average cost of a successful massive open online course is $100,000, and likely involves IT staff and other support for the professor creating the course. For that reason, shared ownership may be something the institution and the faculty member will want to consider, whether at the “default” ratio of 50-50, or something else.
The report also attracted some veiled criticism from intellectual property and legal experts, for possibly exaggerating the extent to which faculty intellectual property rights are under threat.
Ada Meloy, general counsel for the American Council on Education, said she saw no evidence of an escalation in university claims to ownership over faculty intellectual property, and that what discussions have emerged following Stanford v. Roche are necessary.
The growing enthusiasm and application of online digital media for delivering higher education have raised serious questions of ownership and conflicts over control. These questions have brought copyright law to the fore and cannot be ignored. Thechnology has provided the means through distance courses to expand access to learning. The commercialization of online courses also has the potential to cange faculty roles and possibly inhibit scholarly inquiry and academic freedom. It is difficult to prognosticate how these problems will be solved, but it does seem apparent that to avoid legal entanglements, institutions of higher education must be agressive in devising comprehensive policy that coordinates expectations, serves the interests of education and protects those involved in the development, design, and distribution of online courses.