Does a professor own all materials (course notes, syllabus, handouts, etc) created for the courses she teaches?
Under the Copyright Act, 17 U.S.C. § 201(b), the copyright of works created by an employee in the scope of his or her employment belongs to the employer. This statement in the law is referred to as the “works for hire” doctrine, and its application to higher education has proven contentious for over 20 years. Through institutional custom and judicial musings, a universal reliance upon a “teacher’s exception” to the works for hire doctrine has persisted. However, with the rise of distance education has come new challenges to the validity of this exception.
The “teacher’s exception” emerged in response to questions of ownership of scholarly works produced by university faculty. Most notably, the Seventh Circuit Court of Appeals in Weinstein v. University of Illinois stated in dicta that faculty ownership of their creative works enjoyed a long tradition and that only faculty had the authority to grant permission to publishers to reproduce their works, not the universities that employed them. But what about course materials? Neither in the Copyright Act nor in any binding judicial declaration has there been proclamation of such an exception for faculty, particularly as applied to works created for instruction. Further, if the independent contractor vs. employee test specified in C.C.N.V. v. Reid were applied to a copyright action involving course materials, a court would in all likelihood determine that a faculty member was an employee. And preparation of materials used for teaching would likely be deemed as work prepared in the scope of the faculty member’s employment.
A tactic utilized by many colleges and universities in response to the ownership conundrum is adoption of general policies specifying ownership in copyrighted works produced by employees. However, federal district courts in Illinois and Rhode Island have recently ruled that such general policies are not effective for transferring copyright from the university (the presumed owner under the law) to the faculty member. Rather, formally executed and signed transfers of copyright ownership must be executed in order to effectuate a transfer. The courts in these cases have displayed little regard for general policies adopted by academic institutions.
These cases considered the ownership of written, physical materials. But what about course materials prepared for distance or online education? Due to the utilization of institutional resources, such as computer hardware and software, instructional designers, and licensed resources, universities have displayed a greater interest in retaining ownership of courses designed and developed by their faculty. As a result, a few institutions have begun taking the extra step of executing contracts with faculty to settle ownership in these materials. However, most universities have not settled the issue of who owns online course materials. At issue is whether faculty members should be able to profit from the use of institutional resources should they sell their materials to publishers or take them to another institution. And, although a critical principle in higher education, academic freedom legally cannot be asserted as a claim for ownership of online course materials.
For an excellent discussion of the “work for hire” issue, see “Instructional Materials and ‘Works Made for Hire’ at Universities” by Dr. Kenneth Crews.