ABSTRACT

Ownership of faculty produced multimedia materials is a complex issue, and faculty and institutional expectations of ownership can vary significantly. Three factors which influence ownership of multimedia materials are copyright law, employment agreements, and university policy. The environment of legal precedent and international agreement is evolving, creating a moving target with which institutional policy must cope. In this regard, faculty contracts and institutional ownership policies are important tools for improving communication, coordinating expectations, and improving planning. Comprehensive policy clarifying ownership of faculty produced multimedia materials is, and will continue to be an important factor influencing efforts to design, develop, and distribute technology-based instruction. This paper outlines the results of policy analysis and a survey of institutional policies, and provides recommendations for developing institutional ownership policy.

Technology based education, such as multimedia and distance education, has grown dramatically in volume and importance, and has become a defining characteristic for educational institutions in today's marketplace. As the potential market for high quality materials and courses has increased, so has the investment on the part of both institution and faculty in the design, development, and delivery of technology based education. The control of subsequent use of multimedia materials associated with rights of ownership under copyright law has become an important planning issue in recouping design, development and delivery costs, and in offering courses and degrees over time.

The academic culture of sharing information has had difficulty accommodating the legal concepts associated with ownership of intellectual property. Historically, educational institutions have focused on the patentable products of their researchers, and have paid little attention to issues related to instructional intellectual property. Unfortunately, institutional policies which do address ownership rarely provide the foundation needed to effectively plan and manage faculty produced multimedia materials. Policies which clearly define the terms, assumptions, and conditions affecting the ownership of materials produced are critical to coordinate faculty and institutional expectations and to diffuse future concerns.

Each institution has a personality defined by faulty and institutional expectations of ownership, and the contract and policy language that results from a given academic culture. Policies which control activities such as incentive grants, release time, and use of facilities or resources can significantly influence the relationship between the faculty member and the institution.

Three elements which generally determine the ownership of faculty produced multimedia materials are copyright law, employment agreements, and university policies. Under copyright law, the creator can make a written assignment of ownership of the work , which frequently occurs at the request of publishers or funding agencies. The assignment of ownership can be voluntary, or it can be included in employment contracts and other documents related to projects or course assignments. In certain circumstances, ownership can also be assigned from employee to an employer as a "work made for hire" under copyright law.

Due to the limited legal precedent provided by the relevant case law, principally Weinstein v University of Illinois (1987), and the uncertainty in its interpretation by the courts in other circuits, it remains unclear how claims of "work for hire" may affect the ownership relationship between faculty and institutions. Employment contracts can assign ownership of work created by the faculty member in several ways. Ownership can be retained by the creator, licensed or assigned in part to the institution, transferred completely to the institution, or can be licensed or assigned in whole or part to the faculty. The assignment of ownership differs across institutions and a review of the wording of current contracts is an important element to include in any analysis and review of institutional policies which address ownership. It appears that today, in the absence of written assignments to the contrary, faculty retain ownership of materials that they produce.

Production teams are increasingly common in multimedia development. Team production implies joint ownership by all team members unless written assignment or clarification of ownership is made. The trail of ownership becomes incredibly complex where teams include a mixture of faculty , staff, and students. Each individual may have different expectations and assignment of ownership under institutional policy. Clear policies which state and assign ownership at the beginning of the design process are critical in a team production environment.

A recent survey of 74 American Higher Education institutions active in distance education (response rate 42%), attempted to identify and analyze current policy and administrative perceptions of important issues related to the assignment of ownership of faculty produced multimedia materials.

The most important factors in claiming ownership identified by survey respondents were (1) whether the project was created at the request of the institution or, (2) whether or not the legal terminology is applicable, was the project was considered a "work made for hire" by the institution. This distinction seems simple on the surface, but can easily become complicated as faculty and institution grapple to determine whether an instructional project was part of the "normal" faculty work assignment, an auxiliary assignment, or was initiated and completed by the faculty member on their own time.

Clearly stated assignment of the ownership of materials produced outside traditional academic schedules, such as during summer, semester breaks, or sabbaticals is an essential component of a comprehensive policy. Without clear communication and shared understanding, different faculty and institutional perspectives can easily polarize, particularly when a project becomes successful and attempts to clarify resources and ownership are made after the fact.

Across institutions, concern for the ownership of multimedia materials was rated as more important than for traditional media such as print and video. One possible explanation for this difference may be the customary exemption or where addressed in policy, failure to enforce institutional ownership of faculty produced textbooks and traditional course materials at most institutions. Traditional print media have historically been less likely targets for claims of ownership. Reasons may include the tradition of academic freedom, the historic focus on patents as the most valuable intellectual property created at most institutions, or other factors. This laissez fair attitude easily generalizes to other products such as multimedia courses and materials - until a project becomes successful or a faculty member changes institutions and issues of ownership and control arise.

Another factor complicating the policy environment is the increasingly significant institutional investment in design, development, and delivery of multimedia materials. The significant costs in terms of time and resources for most development efforts has begun to raise the issue of return on that investment. Typically, faculty expect a return such as student benefit, improved instruction, creation of new knowledge, recognition and promotion, or financial reward for their time and effort. Institutions have only limited resources to invest in multimedia development, and it is important to selectively invest in projects that will provide a return in the form of tuition and fees, enhanced accessibility and service, support for planning initiatives, equitable support for faculty or departments, or other measures deemed important.

Distribution of revenues resulting from the use of the multimedia materials was identified by survey respondents as extremely important. Equitable assignment of revenue requires identification and accounting of institutional costs such as: faculty, staff and student time, whether the creator was released from other activities or specifically paid to support the project; production equipment, services and facilities involved; distribution network and equipment costs, in addition to the library, student services and other administrative costs associated with providing the instruction.

Many institutions have begun to recognize the revenue potential of successful multimedia courses and course materials, driving many institutions to more closely attend to the ownership and control of such instructional products. Consortial efforts to share courses and materials, and the success of both public and private providers of on-line education, and the current political and media environments are reinforcing the perception that multimedia instructional offerings, and the enhanced access they offer as significant marketing and promotional opportunities for the institution.

Faculty with expertise in design, development, and delivery of multimedia materials are increasingly recognized and valued by peers, professional groups, and other institutions. Institutional recruitment efforts are broadening to focus on faculty with skills in instructional design, multimedia development and distance education experience. If and when key faculty are recruited away, the issue of whether the course materials produced by the faculty (and frequently student and staff teams) can be retained and used by the original home institution, retained by the faculty for use at their new institutions, or jointly used by all parties in the future can become significant concerns.

It is extremely important that institutions periodically review and update policies and agreements with their faculty. The goal is to remain comprehensive in terms of technology, consistent with current legal interpretation, and to accurately reflect the institutional culture and relationship between faculty and the institution. It is also important that faculty regularly review the agreements and assignments to understand the policy environment and institutional expectations when accepting assignments and developing multimedia materials.

Finally, the importance of efforts to increase awareness and educate faculty, administrators and students about the ownership issues involved in design and development of multimedia cannot be overemphasized. Respondents strongly indicated the importance of processes to inform faculty and administrators about issues and policies which influence ownership of multimedia materials at a given institution. Other educational elements recommended as components of a comprehensive policy were consequences for failure to report or follow the policy, inclusion of a review or appeal process, and potentially, of a time frame for ownership to revert to the faculty.

The recommendations which result from this study focus on the ownership of faculty produced multimedia materials as a subset of an overall institutional ownership policy. Also, addressed are some broader issues of the policy development and implementation process. Though the process of developing and implementing ownership policies will vary across institutions, a number of components are common to comprehensive efforts. Due to the increasing involvement of staff and students in addition to faculty in production teams, good policy must address the full range of employees and types of projects.

The external copyright and intellectual property policy environment is far from static. Apparently subtle changes in interpretation by the courts, federal law or international agreements are becoming more frequent, and each can significantly effect the delicate balance of ownership. Institutions should develop an iterative process to monitor the policy and legal environments, educate internal and external stakeholders, foster discussion institution and system levels, and periodically review and revise policies to address current concerns and guide future development.

A model process for refining institutional ownership policy for faculty produced materials developed in the course of this study appears in Figure 1. The proposed policy development and implementation process could begin at any point in the review/revision cycle, but a logical first step is to identify and review existing institutional documents which may address or influence the ownership of materials produced by faculty.

A matrix of policies, personnel and areas influenced, such as the example presented in Figure 2, can be used to summarize the issues and areas addressed in current policies.

 Figure 2. Policy Analysis Matrix

An indication of the current institutional "philosophy" can be derived from existing policy documents. Questions that can guide this analysis include:

An important initial activity is to determine the balance of ownership which defines the culture of the institution or system. The current balance can be placed on a continuum ranging from faculty ownership to institutional ownership, or at a point somewhere in between (see Figure 3).

Current policies define a relationship of ownership between faculty and institution, and form the starting point for subsequent discussion. Where policies do not exist, the balance of ownership will need to be determined. The institutional culture or philosophy provides a foundation for efforts to educate the institutional community and to foster discussion about the issues of ownership and the implications of the various policy options that may be proposed. Education and discussion should involve administration, faculty, staff, graduate and other students, legal council, and representatives of other relevant groups. Implementation of the resulting policy will require good communication throughout the institution and it is helpful to include broad discussion early in the process of developing or revising policy.

The scope of employees covered by the policy is a next decision point. A comprehensive policy should consider and address all categories of individuals employed by the institution including:

As noted earlier, assignment of ownership and control within production teams is also important. Policies which govern the intellectual property created by faculty, staff, and student team members may differ so clarification of the roles and responsibilities in terms of ownership is an important policy issue. Since written assignment is important, sample agreements and where appropriate, ownership assignments for team production efforts are valuable additions to a comprehensive policy.

The scope of projects addressed in ownership policy also need to be defined in a comprehensive policy. Under current policy, many institutions have had the ability to claim ownership of faculty produced instructional materials though enforcement has not been common. Policies which address technology based instructional materials can be seen as shifting the balance of control established for traditional media, even if the assignment of ownership is predicated on concerns such as the significant use of resources. Changes in the balance between faculty and institution should be carefully analyzed and addressed before trying to implement the policy.

Open discussions among faculty, administration and legal council are important to grounding the policy development process. General categories of faculty products which might be addressed in institutional ownership policy include:

One important factor in policy decisions is whether the project was specifically assigned by the institution or included in faculty contracts or work assignments. The review of faculty contracts and of subsequent agreements for project development or similar efforts is a critical component of policy review and revision. Once again, the institutional culture will form the foundation for discussions, and development of the policies which will reflect and guide the balance of ownership created between faculty and institution.

Since the scope and magnitude of the costs involved in design, development, and delivery of multimedia are so great, the balance of ownership can be defined by the use of resources such as:

One of the best times to clarify ownership and any implications of accepting additional resources is when the project is initially assigned or approved. The implication of using resources such as seed money for design, distance education course development, or the use of instructional design or production staff and facilities can be specified, as can the implications of various faculty roles in the production efforts.

Policy should state the ownership position of the institution, whether faculty can retain or obtain ownership, and what circumstances lead to faculty or institutional ownership of the materials produced. If desired, faculty may be able to retain or obtain ownership through mechanisms such as the use of independent, non-institutional facilities for production efforts, by reimbursing design and production costs, taking unpaid leave, or other means.

Actual or potential revenue, and the recognition which can result from successful multimedia products and courses are driving forces in ownership discussion and policy development. Policy should clearly define how costs are calculated and revenues distributed. Education about realistic expectations for costs and revenues and the accounting and distribution processes are an important component of the process of developing and implementing policies.

Once the structure of the policy has been determined in terms of who the policy applies to, what projects are included, and the variables involved in determining and assigning ownership, the focus can shift to implementation issues. In addition to educational efforts which are essential during policy analysis and development, policies should address issues including:

No matter how complex and difficult developing policy appears, it is far simpler than dealing with the lack of policy on a case by case basis after multimedia products have been developed. Ownership issues become significant when changes in visibility or potential value occur. Examples of such changes include a faculty member who leaves and wants to take course materials with them to their new position, a publisher becomes interested in purchasing rights to distribute a course, or curriculum materials get accepted as core courses by a consortium that will reach tens of thousands of students.

The legal and policy environment affecting the ownership of faculty produced multimedia materials is far from static. Federal and institutional efforts to change the balance of ownership and use are moving rapidly. Ownership issues are increasingly a concern of faculty unions and of individual faculty in defining job responsibilities and accepting seed money to support development of multimedia projects. It is important for both faculty and administrators to become attuned to the issues of ownership and to monitor, and hopefully influence, the changes in law and international agreements which will affect the critical balance of ownership and use.

Development of "best practice" models at system, state, or regional organization such as the Western Interstate Commission for Higher Education (WICHE) levels will be helpful. An additional benefit will be the focus of awareness and lobbying efforts to influence changes in federal law and international agreements.

The balance of ownership between faculty and institution is an important and potentially emotionally charged issue. The environment of legal precedent and international agreement is evolving, creating a moving target with which institutional policy must cope. Comprehensive policy clarifying the ownership of faculty produced multimedia materials is, and will continue to be an important factor influencing efforts to design, develop, and distribute technology-based instruction.

Literature References

Copyright Clarification and Technology Act, S. 1146, Sen. Ashcroft, Sponsor (introduced 09/03/97). (1997).

Lape, L. (1992). Ownership of copyrightable works of university professors: The interplay between the Copyright Act and university copyright policies. Villanova Law Review, 37, 223, 227, 243.

Leval, P. (1990). Toward a fair use standard. Harvard Law Review, 103, 1135.

On-Line Copyright Liability Limitation Act, H.R. 2180 (1997), Sponsor: Rep. Coble (introduced 07/17/97).

Patel, S. (1995). Graduate studentsÕ ownership and attribution rights in intellectual property. Independent Law Journal, 71, 495.

Saez, C. (1995). Enforcing copyrights in the age of multimedia. Rutgers Computer & Technology Law Journal, 21, 355.

Simon, T. (1991). Faculty writings: Are they "works made for hire" under the 1976 copyright act? In E. Ansell (Ed.), Intellectual property in academe: A legal compendium (p. 233-262). Washington, D. C.: National Association of College and University Attorneys.

Weinstein v University of Illinois, 811, F. 2d 1091 (7th Cir. 1987).

Williams v Weisser, 273 Cal App. 2D 726, 78 Cal. Rptr. 542 (1969).

Additional background on the issues of copyright and ownership from Cause:

Burk, D. (1997). Ownership of Electronic Course Materials in Higher Education, Cause/Effect, vol. 21. no. 3, 13.

Burk, D. (1998). Ownership Issues in Online Use of Institutional Materials. Cause/Effect, 21, 19.