Copyright Issues in Online Courses: Ownership, Authorship and Conflict

I. INTRODUCTION The paucity of case law involving copyright ownership of materials prepared by university faculty reflects the reality that copyrightable works created by academics have not historically generated large amounts of money. Thus, early cases involving the work product of professors reflected the custom of faculty ownership of copyrighted materials. (1) Not surprisingly, universities were far more concerned with the ownership of more profitable patentable inventions. (2) As the twenty-first century dawns, however, university interest in copyright ownership of works created by academics is intensifying, largely as a result of the potential financial windfalls associated with distance education. (3) Both faculty and university administrators are reconsidering copyright ownership as technological advances provide universities with the capability of using on-line course materials for multiple semesters without providing additional compensation to the faculty who actually produced the subject matter of the course materials. (4) Indeed, the escalating competitive environment in higher education fosters the growing economic influence of distance learning. (5) Distance education is proliferating, although legal education has been comparatively slow to adapt to this trend. In 1998, Concord University of Law, the first exclusive on-line law school, opened, engendering controversy from the outset. (6) When renowned Harvard law professor Arthur Miller was commissioned by Concord to produce a series of videotaped lectures on civil procedure to be delivered through streaming video from Concord's web site, Harvard modified its faculty manual so that its professors would be prevented from teaching, researching or acting as salary consultants to an Internet on-line school absent special permission. (7) Despite the endorsement of high-powered academics such as Arthur Miller and others, (8) the ultimate influence of Concord on the legal academy remains unknown at this point. One particularly formidable obstacle to the ultimate success of Concord may be the ABA's reluctance to offer Concord accreditation in light of its refusal to consider Concord as anything more than a correspondence school. As such, Concord is barred from accreditation consideration under the ABA Accreditation Standard 304(f). (9) Despite the legal academy's reluctance to embrace distance education, the number of institutions gravitating toward on-line courses (10) mandates attention to important legal issues surrounding the use of this educational medium. The creation of on-line courses presents many novel copyright issues. For example, one especially timely issue concerns the extent to which the creators of on-line courses can avail themselves of the fair use doctrine. (11) This Article, however, focuses on the ownership and authorship issues surrounding the creation of on-line courses. Varied practices exist regarding these issues. For example, at one institution, the University of North Texas, professors are paid royalties when their on-line materials are used by other instructors and are awarded some of the tuition generated from the courses they create. (12) Still, such arrangements are rare. More typically, authorship and ownership of on-line course materials are governed by university intellectual property policies, in which copyright issues are gaining prominence. (13) Some institutions treat copyrighted subject matter similarly to the way in which patentable subject matter was historically treated: the faculty is considered the legal author but the university requires an assignment of rights in any work made with significant university resources. (14) Alternatively, institutions create for-profit entities, and hire faculty and students as employees of these entities so that their works are viewed as having been produced within the course of employment for the corporate entity. (15) Significantly, the American Association of University Professors (AAUP) has prepared a Draft Statement on Copyright advocating that faculty members should be the owners of "courseware" they develop for distance education programs. …