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University copyright policies for online coures

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Title:
University copyright policies for online coures an evaluative resource tool for unbundling rights of use, control, and revenue
Physical Description:
Book
Language:
English
Creator:
Patzer, Tamara A
Publisher:
University of South Florida
Place of Publication:
Tampa, Fla.
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Subjects

Subjects / Keywords:
distance education
copyright
intellectual property
faculty rights
policies
guidelines
faculty copyright ownership
Dissertations, Academic -- Mass Communications -- Masters -- USF   ( lcsh )
Genre:
government publication (state, provincial, terriorial, dependent)   ( marcgt )
bibliography   ( marcgt )
theses   ( marcgt )
non-fiction   ( marcgt )

Notes

Summary:
ABSTRACT: Who cares about who owns online courses? Nobody, because that is not what the issue is really about. Ownership is an emotional issue, but controlling the rights of a copyrightable work is tangible and logical. The important question to answer is not who owns online courses, but who controls the rights of any copyrightable work. For universities and faculty members, getting over the emotional issues and down to the foundation of what is truly at stake is of major concern. While it is nearly impossible to create qualitative guidelines for copyright policies and/or contracts, it is eminently possible to examine existing policies and contracts and relate how a handful of universities are handling copyright and intellectual property issues pertaining to online courses. The purpose of this thesis is to provide a starting point for this complex transaction in the form of a resource tool that includes some basic background about copyright law, relevant case law related to "work-for-hire," and relevant academic freedom issues. The original work of this thesis is the creation of a tool, which reviews of a sampling of university policies pertaining to online copyright issues and ownership. Accordingly, the contribution this thesis makes to the understanding and clarification of universities policies related to online material copyright ownership will be important for faculty members and universities in two ways. First, it will help others develop better online copyright policies based on tangible issues rather than emotional ones. Second, this thesis can be a basis for others to build upon for future research on this important topic.
Thesis:
Thesis (M.A.)--University of South Florida, 2003.
Bibliography:
Includes bibliographical references.
System Details:
System requirements: World Wide Web browser and PDF reader.
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Mode of access: World Wide Web.
Statement of Responsibility:
by Tamara A. Patzer.
General Note:
Title from PDF of title page.
General Note:
Document formatted into pages; contains 149 pages.

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Resource Identifier:
aleph - 001447453
oclc - 54089552
notis - AJN3897
usfldc doi - E14-SFE0000194
usfldc handle - e14.194
System ID:
SFS0024890:00001


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ABSTRACT: Who cares about who owns online courses? Nobody, because that is not what the issue is really about. Ownership is an emotional issue, but controlling the rights of a copyrightable work is tangible and logical. The important question to answer is not who owns online courses, but who controls the rights of any copyrightable work. For universities and faculty members, getting over the emotional issues and down to the foundation of what is truly at stake is of major concern. While it is nearly impossible to create qualitative guidelines for copyright policies and/or contracts, it is eminently possible to examine existing policies and contracts and relate how a handful of universities are handling copyright and intellectual property issues pertaining to online courses. The purpose of this thesis is to provide a starting point for this complex transaction in the form of a resource tool that includes some basic background about copyright law, relevant case law related to "work-for-hire," and relevant academic freedom issues. The original work of this thesis is the creation of a tool, which reviews of a sampling of university policies pertaining to online copyright issues and ownership. Accordingly, the contribution this thesis makes to the understanding and clarification of universities policies related to online material copyright ownership will be important for faculty members and universities in two ways. First, it will help others develop better online copyright policies based on tangible issues rather than emotional ones. Second, this thesis can be a basis for others to build upon for future research on this important topic.
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PAGE 1

UNIVERSITY COPYRIGHT POLICIES FOR ONLINE COURSES: AN EVALUATIVE RESOURCE TOOL FOR UNBUNDLING RIGHTS OF USE, CONTROL, AND REVENUE By Tamara A. Patzer A thesis submitted in partial fulfillment of the requirements for the degree of Master of Arts degree School of Mass Communications College of Arts and Sciences University of South Florida Major Professor: Barbar a K. Petersen, Ph.D. Kenneth C. Killebrew,Ph.D. Ann E. Barron, Ph.D. Date of Approval: October 8, 2003 Keywords: Intellectual Property, Distance Education, Contracts, Faculty Ownership, Guidelines Copyright 2003, Tamara A. Patzer

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All people dream: but not equally. those who dream by night in the dusty recesses of their minds wake in the day to find that it was vanity. But the dreamers of the day are dangerous people, for they may act their dream with open eyes to make it possible. – T.E. Lawrence Dedication This thesis is dedicated to my mo ther Margaret Ann Wicklund Wiese and my father Curtis Allen Wiese, Sr. For together, they taugh t me the value of education and through example, they taught me how to achieve my goals through vision, dedication and hard work. This thesis is also dedicated to my children Kristina Marie Patzer Blasen, Richard Nathan Freshwater and Kent Christ ian Freshwater. It is because of them I lifted myself up and reached out for more, so they would know dreams are meant to be lived during daylight hours.

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Acknowledgments I would like to acknowledge my thesis chair Barbara K. Petersen, Ph.D., and thesis committee members Kenneth C. Kille brew, Ph.D., and Ann E. Barron, Ph.D. Words can not express my gratitude to Dr. Petersen for her tireless mentoring, editing, and support during the l ong process required to produ ce this thesis. Without Dr. Petersen’s support, this thesis would not exist. Dr. Killebrew’s explanation of qualitative research helped me let the information and themes bubble forth. The process was arduous, but rewarding. Dr. Barron balanced out my thesis co mmittee with her expertise in distance education and discerning commentary. I would also like to acknowledge Dr. Ed ward Jay Freidlander for listening to my goals early in my program and affording me the opportunity to become a graduate teaching assistant. This opportunity opened myriad doors as I have not only taught Introduction to Writing for Mass Communications, but also various English and GED classes in other academic settings. My University of South Florida graduate experience continues each day as I work as a newspaper editor for a Southwest Florid a newspaper. Each day a realization springs forth and I “get” a lesson presented in one of my courses. With this in mind, I would also like to acknowledge every classmate and prof essor I have encountered during my tenure at USF. Each person afforded me insight and perspectives beyond the topic of mass communications. For this, I am forever grateful.

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Table of Contents List of Tables iii List of Figures iv Abstract v Chapter 1 Introduction 1 Who Owns the Copyright? 1 Who Cares About Ownership? It’s Really About the “Rights” Issue 3 Chapter 2 Literature Review 7 19922001: Trends in Academe Regard ing Faculty Rights to Copyright Ownership 7 Academic Exception Created By Academic Freedom 14 Copyright Applications and Academic Practice 15 “Work-For-Hire”: Doctrine Case Law 16 Asking the Right Questions: Perspectives 22 Foundations for Creating Policies 25 Evaluating Adequacy of Policies 26 A Policy Checklist for Developing Copyright Ownership Policies 29 Questions About Ownership, Use, and Compensation related to a successful Copyright Ownership Model 29 Stevens Institute of Technology Intellect ual-Property Policy Model 31 Themes Related To Creating Policy Language 31 Copyright 32 Compensation 32 Use 32 Portability 32 Third-party licensing 32 Additional compensation and limitations 32 Unbundling Rights 33 Some Possible Scenarios 34 The Sociological Meaning of Problem Definition 36 Causality 37 Significance 37 Incidence 37 Novelty 37 Scope 37 Ownership 38 Research Question 40

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“How have universities a nd faculty create online c ourse copyright policies that are mutually beneficial to the author/creator and the university?” 40 Chapter 3 Methodology 43 Criteria determination 44 Dissembling the Policies 46 Comparison Points 50 Chapter 4 Findings and Discussions 53 Tool Tables Review 53 Table A-3 Universi ties with separate cour seware policies 53 Table A-4 Universi ties with Pro University copyright ownership* 56 Table A-5 Universities with Pro University Copyright Ownership 59 Table A-6 Universi ties with Pro Faculty Copyright Ownership N* 61 Discussion of a selected policy 64 Looking Deeper: University of South Florida 64 How to use the resource tool 66 Scenario 66 Chapter 5 Conclusions 67 References 75 Appendices 81 Appendix A: TABLES 82 Table A-1 Trends in Academe Re garding Rights of University Professors Related to copyright Issues 82 Table A-2 World Wide Web URL Addresses for Policies with Retrieval Dates 85 Table A-3 Universities with Separate Course ware Policies 88 Table A-4 Universities with Pro Un iversity Copyright Ownership* 91 Table A-5 Universities with Pro Universi ty Copyright Ownership 94 Table A-6 Universities with Pro Faculty Copyright Ownership N* 96 Appendix B: Universities studied by Lape (1992) and Packard (2000) 101 Appendix C: Consortium for Educationa l Technology in University Systems, (CETUS) Guidelines for Intellectual Property 103 Appendix D: 1940 Statement of Principles on Academic Freedom and Tenure with 1970 Interpretive Comments 106 Appendix E: American Association of University Professors Statement on Copyright 125 Appendix F: Draft Recommendations Stevens Institute of Technology Web-Based Course Intellectual Property Righ ts 133

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iii List of Tables Table A-1 Trends in Academe regarding righ ts of university professors related to copyright issues 82 Table A-2 World Wide Web URL addresses for policies with retrieval dates 85 Table A-3 Universities with separa te courseware policies 88 Table A-4 Universities with Pro University Copyright Own ership* 91 Table A-5 Universities with Pro Un iversity Copyright Ownership 94 Table A-6 Universities with Pro Faculty copyright ownership N* 96

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iv List of Figures Figure 1. Sample Process Flow Chart for Table A-3 Universities with separate courseware policies 71 Figure 2. Sample Process Flow Chart for Un iversities with Pro Un iversity copyright ownership* 72 Figure 3. Sample Process Flow Chart for Universities with Pro University Copyright Ownership 73 Figure 4. Sample Process Flow Chart for Universities with Pr o Faculty Copyright Ownership N* 74

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v University Copyright Policie s for Online Courses: An Evaluative Resource Tool for Unbundli ng Rights of Use, Control, and Revenue By Tamara A. Patzer ABSTRACT Who cares about who owns online courses? Nobody, because that is not what the issue is really about. Ownership is an emo tional issue, but contro lling the rights of a copyrightable work is tangible and logical. Th e important question to answer is not who owns online courses, but who controls th e rights of any copyrightable work. For universities and faculty member s, getting over the emotional issues and down to the foundation of what is truly at stake is of ma jor concern. While it is nearly impossible to create qualitative guidelines for copyright po licies and/or contracts, it is eminently possible to examine existing policies and contracts and relate how a handful of universities are handling copyrig ht and intellectual property issues pertaining to online courses. The purpose of this thesis is to provi de a starting point for this complex transaction in the form of a resource tool that includes some basic background about copyright law, relevant case law related to “work-for-hire,” and relevant academic freedom issues. The original work of this thesis is th e creation of a tool, which reviews of a sampling of university policies pertaining to online copyright issues and ownership.

PAGE 9

vi Accordingly, the contribution this thesis makes to the understanding and clarification of universities pol icies related to online material copyright ownership will be important for faculty members and universities in two ways. First, it will help others de velop better online copyright policies based on tangible issues rather than emotional ones. Second, this thesis can be a basi s for others to build upon for future research on this important topic.

PAGE 10

1 Chapter 1 Introduction Who Owns the Copyright? With the popularity of the World World Web, Internet, and e-mail, the idea of faculty owning course materials has been ch allenged in recent y ears by the advent of virtual classrooms and courses made specifi cally for online or distance learning. With money to be made, universities are striki ng deals with nonacademic corporations to proffer academic wares to students around the gl obe, often selling the course content or giving ownership copyrights to course cont ent created by faculty to these outside corporations (Twigg, 2000). Among the universities that “sold” course materials to outs ide sources are the University of California at Los Angeles (UCL A), University of Berkeley (UC Berkeley) and the University of Colorado (Noble, 1997) Respectively, UCLA sold some courses for distance learning purposes to its own for-profit subsidiary called The Home Education Network (THEN). UC Berkeley had an on line course distribution agreement with America On Line (AOL). The University of Colorado sold some of its courses to an outside vendor called Real Education. Many ot her universities struck similar deals with other companies (Noble, 1998). One question to ask is why? Is it for the sa ke of education for al l? Or perhaps, it is the lure of the almighty dollar. There are th eories on both sides, but Twigg argued that most of the discussion is about “t apping into a gold mine” (Twigg, 2000).

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2 Agreements between universities and outside corporations seem to be heralding a new frontier in education. They bring up some interesting questions related to education and commerce, thus bringing copyright law into the practice of higher education. In the end, will the content of online educational courses be dictated by the media or by university administrators? Or, will online educational course content rema in in the hands of scholars and educators? Will distance learning courses really offer an authentic education, or will the courses just be short cuts to getting a piece of paper with the word diploma (Noble, 1998)? If a university sells course material cr eated by a faculty member, does the faculty member have any legal claims? This question is directly related to the ownership issues that a clearly written copyright ownership policy or wr itten copyright contract would address. Taking the hard line against the practi ce of universities selling online course content to outside education ve ndors, Noble (1998) contended that faculty should file for injunctions against universities to prevent them from entering commercial agreements or from executing the agreements (if in fact, th e universities are selli ng content they do not own). Is the copyright issue re ally about money? Are univers ities or independent distance educators making millions, as described in the gold mine scenario offered by Twigg (2000)? It’s highly doubtful. Is the issue of “who owns online courses” the real issue? No, it isn’t.

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3 Who Cares About Ownership? It’s Really About the “Rights” Issue Who cares about who owns online courses? Nobody, because that is not what the issue is really about. Ownership is an emo tional issue, but contro lling the rights of a copyrightable work is tangible and logical. Th e important question to answer is not who owns online courses, but who controls th e rights of any copyrightable work. For universities and faculty member s, getting over the emotional issues and down to the foundation of what is truly at stake is of ma jor concern. While it is nearly impossible to create qualitative guidelines for copyright po licies and/or contracts, it is eminently possible to examine existing policies and contracts and relate how a handful of universities are handling copyrig ht and intellectual property issues pertaining to online courses. Interestingly, some universities choose not to addr ess the copyright issues of online courseware. Still others gloss over onl ine course ownership issues and target copyright fair use issues in stead. Other universities claim ownership of online courses, while others only claim ownership if the au thor made use of “s ubstantial” university resources. Another group proclaim that the au thor/creators retain th e rights of copyright, some with restrictions, some not. Since there is no “one size fits all” answ er to creating a copyri ght policy to satisfy all needs for all people, one goal of this thesis is to help faculty and university administrators understand the issues involved in creating a copyright policy that focuses on online courses (also known as Web c ourses) courseware, or new media. While this thesis cannot presume to o ffer guidelines for creating the perfect copyright policy for online courses, it can offe r insight and resources for others to draw upon in their endeavors to create policies th at work for their unique situations.

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4 One thing is certain. Since rights ar e tangible, every policy should focus on rights or unbundling of copyrights, not just the emotional issue of ownership. As evidenced by the literature, with no clear ov erriding legal guidelines available through the court system, and nothing more than trad ition guiding some unive rsities and faculty members as to the ownership and rights of use of faculty-produced online materials, now is the time to put it in writing. A clear, lega lly binding contract that protects both parties — i.e., the university and the faculty member(s) — is one way to achieve this end. At the very minimum, all universities and colleges sh ould have policies as to the handling of copyright related issues pert aining to online courses and all forms of copyrightable materials produced by faculty and students. Such policies need to be in place due to the ever-increasing use of Internet and digital sources for the creation and dissemination of information in education. As a proponent for the unbundling of c opyrights and written contracts and policies, I am aware that cont racts may not be the answer for all occasions; however, a well-written document legally binding upon all pa rties can only help create a mutual understanding between those part ies involved, and may, in fact help keep open the lines of communication regarding academic creativity. The purpose of this thesis is to provi de a starting point for this complex transaction in the form of a resource tool that includes some basic background about copyright law, relevant case law related to “work-for-hire,” and relevant academic freedom issues.

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5 Additionally, the thesis reviewed a small sampling of existing university copyright policies that universi ties and colleges could use to create and/or revise their own policies regarding copyright ownership of online courses (See Tables A-1 through A-6). The introduction to this thesis has pr esented some examples of universities engaged in selling course materials to for-p rofit organizations. Th e Literature Review includes two detailed studies of trends in academe related to copyright ownership issues at universities nationwide (See Appendix A, Table A-1 and Appendix B), followed by a brief look at copyright basics re lated to ownership as presented in Title 17 of the United States Code (the Copyright Act of 1976). Also included is a review of the common legal cases cited in the literature related to “work-for-hire” and how academics or faculty have been treated as a rule in the court system and at universitie s, along with the related issue of the definition of academic freedom. A substantial portion of the Literature Revi ew presents an upda te of copyright and intellectual property guidelines offered by acad emics, lawyers, and consortiums deemed acceptable to both university administrators and faculty members at selected institutions across the United States. The original work of this thesis is a re view of a sampling of university policies pertaining to online copyright issues and ownership. Accord ingly, the contribution this thesis makes to the understanding and clarifi cation of universities policies related to online material copyright ownership will be important for faculty members and universities in two ways.

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6 First, it will help others develop bett er online copyright policies based on tangible issues rather than emo tional ones. Second, this thesis can be a basis for others to build upon for future research on this important topic.

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7 Chapter 2 Literature Review 1992-2001: Trends in Academe regarding fa culty rights to copyright ownership Packard (2001) conducted a content analysis of 69 1universities to provide evidence of trends in academe regarding th e rights of university professors to their intellectual and creative wor k. Packard’s study replicated the 1990-91 studies by Lape (1992). (See Table A-1.) In Lape’s 1992 study, institutions identif ied as Research Universities I by the Carnegie Foundation for the Advancement of Teaching were contacted to determine whether they had copyright policies and if s o, what was included in them. To maintain the integrity of the study, even though in the past decade the list of Carnegie Research I2 universities had grown from 70 to 152, Packar d (2001) used the orig inal 70 universities except for Yeshiva University, wh ich refused to participate. Packard (2001) noted that overall, un iversities are moving toward a more comprehensive view regarding faculty copyrights. Following are some highlights from P ackard’s (2001) findings compared with Lape’s (1992) study. 1 See Appendix B for listings of universities studied by Packard, 2001. 2 Packard noted: The Carnegie Foundation has changed its classification system. At the time of Packard’s study it classified wh at were Research I institutions as Doctoral/Research Universities--Extensive. See http://www.carnegiefoundati on.org/classification/

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8 In 1990-91, out of 70 institutions, 11 had not adopted a written copyright policy regarding ownership of faculty work and five had policies in draf t form only (Lape, 1992). Nearly a decade later, Packard (2001) found that all but one had adopted a copyright policy and three were working on dr afts. The studies show ed the trend toward creating policies related to faculty ownership, implying that universi ties were recognizing the potential value of works produced by professors. In both Lape’s (1992) and Packard’s (2001) studies, 100 percent of all policies reviewed showed that universities claimed ow nership of at least some faculty works. The reason given most often for claiming some faculty works was “substantial use of university resources; however, some universities claim works created with any university resources not available for fr ee to the general pu blic” (Packard, p. 297). While Lape did not distinguish between the two reasons fo r claiming some faculty works, in 1990-91, 42 universities used some varia tion of the foregoing language. Fifty-seven (15 more) did in early 2000. Both Lape and Packard found that in stitutions cited used university resources as an equitable basis for their claims to faculty work. Lape found that 16 universities narrowed the scope of works claimed by ex cluding commonly used resources such as “libraries, offices, salaries, classrooms, labor atories, and secretaries.” Packard found 20 institutions did in early 2000. Lape found tw o institutional policies that attempted to define “substantial resources” in dollar am ounts. Packard found only one did in early 2000.

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9 This trend toward universities claiming some ownership of faculty materials should be a red flag for faculty members who create potentially valu able materials such as online courses or other type s of income producing materials. This trend points to a new need for a binding written contract defini ng the copyrights of all parties involved. Lape (1992) found that most university polic ies attempted to protect faculty rights related to traditional literary works, such as books, articles, plays, and poetry. Lape found 16 policies that expressly discla imed university copyright ownership of traditional scholarly works, but with some di sclaimers. Nearly a decade later, Packard found 49 universities disclaimed university copy right ownership of traditional scholarly work, with some disclaimers. Although no specific number was noted in Lape’s (1992) study, Packard (2001) found 12 institutions that included policies that included provisions that cede control of educational materials, including syllabi, lecture notes tests and, in some cases, Internet and Web postings, to the professors who cr eated them. While this was good news for faculty, it was clear that many universities policies did not addre ss the issue at all. Academic freedom or similar language ha d been incorporated into 29 policies in 2000, up from 18 policies in 1990-91, in whic h Lape (1992) found statements of commitment to academic freedom or the fr ee dissemination of ideas. Packard (2001) noted very few universities used academic freedom as an excuse or reason to copyright faculty work (p. 297). Intere stingly, academic freedom la nguage does not necessarily protect the actual copyright s of a faculty member.

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10 With no written contracts, any dispute could end up in a court of law, and depending upon the judge’s interpretation of the case and existing copyright laws, the work could be viewed as a “work-for-hire” under the C opyright Act of 1976. Again, with academic work copyright being such a gray area, it is in the best interest of a university and its faculty members to create written contracts related to how works created by faculty will be treated. Both Lape (1992) and Packard (2001) found data showing universities are consistently interested in software, but do not necessarily incor porate more provisions asserting ownership over it. Lape found that 19 policies distinguished computer programs from other copyrightable works. Lape’s (1992) study did not include policies where com puter programs were in a “laundry list” of other works claimed, so Packard (2001) could not know how many universities considered software as one of many potential targets of university ownership 10 years previous. Packard found 34 universitie s had incorporated software into their policies as possible work falling within unive rsity purview. Lape f ound five policies that addressed software as a sepa rate issue and the number wa s the same in 2000; however, Packard noted, they may not be the same five universities. Lape found four universities treating computer programs in their patent policies, even if co mputer programs are protected by copyright instead of patent law; two did in 2000. With the exception of policies claimi ng works by genre, Lape (1992) found 25 policies claimed work under the concept. Thes e 25 policies claimed work “produced as a result of specific, direct, or written job assignment or duties” (Packard, p. 298).

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11 This number had increased to 37 in 2 000. Lape (1992) found nine policies that claimed works produced by persons hired to produce such works. Packard (2001) found 12. Lape found 10 policies claiming “commi ssioned works.” Packard found 23. Lape found six policies claimed “work-for-hire” as defined by the Copyright Act. Packard found 18 policies made that statement and one claimed work developed within the scope of employment. Packard also found discrepancies between di fferent universities related to the conception of “work-for-hire.” Some universities considered “works-for-hire” to be extra work assigned to a faculty member in addition to a professor’s normal workload. Othe r universities required agreements be signed before work begins, so faculty have advanced notice that the university intends to claim the eventual product (Packard, p. 302). Lape (1992) found 18 university policies that provided for joint ownership or a royalty-free license for the university to us e the faculty work. P ackard (2001) found five, noting the decline may reflect the complexities of joint ow nership. In Lape’s study, 10 policies claimed non-exclusive, royalty-free licenses for the university’s us e of faculty work. Packard found 16. Packard found, however that the most common practice was that universities claimed ownership of so me faculty works and offered to share a percentage of royalties with the professor. Lape found 46; nearly a decade later, 50 universities offered this arrangement. This arrangement was not true, however, when an agreement was in place (Packard, p. 303). Packard (2001) found that some universi ties allowed faculty to maintain some creative control over works claimed by the university.

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12 Some policies included provisions allowi ng professors to control dissemination and revision of their works and the length of time the faculty member was identified as the work’s creator. Lape (1992) found five polic ies allowing professors to control the use of work within the university; seven did in 2000. Seven policies a llowed professors to revise their works, 10 did in 2000. In 1990-91, one policy granted authors the right to make new works based on the claimed wor k. In 2000, six policies granted authors the right to continue using their work for academ ic purposes; two specifically referred to the right to make derivative works. Lape (1992) found no policies gave professo rs unilateral control over any aspect of work licensed outside of the university, such as how the work was marketed or published. The case remained so in 2000. While Lape found six policies containing language for transfer of copyright ownership back to the professor if commercialization or publication did not take place within a set period of time, 16 policies contained this stipulation in early 2000. Packard (2001) said few of the policies were mandatory, and many contained clauses that allowed universitie s to retain licensing rights or rights to derivative works. Lape (1992) predicted that as disputes increased regarding copyrights to faculty work, policies would become more extensive and include a policy fo r interpretation and adjudication of these disputes. Lape noted that many policies provided for a committee within the university to perf orm initial decision-making rega rding faculty ownership, and that binding decisions would be made by uni versity officials or through arbitration. While Lape (1992) did not mention a numb er of policies in the original study, Packard (2001) found that 33 did so in 2000.

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13 Out of the 33, three allowed for binding ar bitration, and the remainder relied on a member of the administration to settle dis putes. Packard noted that the policies did not seem to recognize the appearance of unfairne ss if final decisions are made by university officials alone. Agreements in writing, signed by both the faculty member and a university official, that are incorporated into the university’s copyright policy may affect the validity of the policy and also affect the effectiveness of the policy. Lape (1992) found six policies pertaining to th e “in writing” agreement. Packard (2001) found eight mentioning a copyright agreement that employees must sign as a condition of employment. No policy mentioned the agreement being signed by a university representative. Lape (1992) noted that policies made some provision for construction and enforcement of the policies’ terms, but did not say how many. In Packard’s (2001) study, eight policies included provisi ons for enforcement, includi ng suggestions for measures that could be taken against employees who failed to volunteer information about their works, or who attempted to license the works themselves. Lape (1992) found many policies used vague language, contained undefined terms, and had internal inconsiste ncies. Packard (2001) found the same.

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14 Academic Exception Created By Academic Freedom Packard (2001) found that while academic freedom in the court system was losing ground, in university copyright policies referenc es to academic freedom were on the rise. Compared to 26 percent of policies me ntioning academic freedom in Lape’s 1992 study, 42 percent mentioned it in Packard’s study. The largest increase — up from 23 percent to 71 percent — was the number of universities acknowledging in 2000 that traditional academic works should be protec ted so the universities do not claim it. For the purposes of this thesis, the defi nition of academic freedom is the one accepted by the American Association of Univ ersity Professors (AAUP) and Association of American Colleges and Universities (AAC U) in its 1940 Statement of Principles on Academic Freedom and Tenure with 1970 Interpretive Comments. (See Appendix C for complete statement.) College and university teachers are citizen s, members of a learned profession, and officers of an educational in stitution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special oblig ations. As scholar s and educational officers, they should remember that th e public might judge their profession and their institution by their utterances. Hen ce they should at all times be accurate, should exercise appropriate restraint, should show resp ect for the opinions of others, and should make every effort to i ndicate that they are not speaking for the institution.

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15 Copyright Applications and Academic Practice The AAUP has also developed a statemen t on copyright application related to academic practice. (See Appendix D, for complete statement.) Within that tradition, it has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member's own initiative for traditional academic purposes. Examples include class notes and syllabi, books and articles, works of fiction and nonfiction, poems and dramatic works, musical and choreographic works, pictorial, graphic, and sculptural wo rks, and educational software, commonly known as “courseware.” This practice has been followed for the most part, regardless of the physical medium in wh ich these “traditional academic works” appear, that is, whether on paper or in a udiovisual or electronic form. As will be developed below, this practice should therefore ordinar ily apply to the development of courseware for use in programs of distance education. Traditionally, university faculty have been regarded as the owners of the copyrightable work they create, and increasi ngly as general policy, most universities have disclaimed copyright interests in these works. For example, Packard (2000) found nearly 71 percent of 70 Carnegie Foundation Research I Universities disclaimed traditiona l scholarly work compared to Lape’s (1992) study, which found 23 percent disclaimed traditional scholarly works. (See Table A-1) This was before digital technology arrived on the scene making faculty works a lucrative source for financial gain by unive rsities at the very least.

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16 “Work-For-Hire” Doctrine Case Law While there are few U.S. Supreme Cour t decisions clarifying whether certain types of new works produced by faculty me mbers belong to the creator or to the university for which he or she works, there are some lower court decisions that provide insight into the “work-for-hire” doctrine as it is related to faculty creators. More than anything, these court decisions highlight the great need for well-written, clear copyright ownership policies and legally binding c ontracts in the world of academia. Prior to the enactment of the Copyri ght Act of 1976, the common law supported the position that faculty writings and course-related materials were not “work-for-hire” as defined in the 1909 Copyright Act and from which academic researchers were exempted. There is some support for the notion that a teacher exception to the “work-for-hire” doctrine protects faculty ri ghts to their academic works. (Simon, 1983, Borow, 1998, Laughlin, 2000.) The “work-for-hire” doctrine was first c odified in the Copyright Act of 1909. Under the 1909 law, “courts and commentat ors regarded the doctrine as largely inapplicable to teachers” [Act of March 4, 1909, ch. 320, Pub. L. No. 60-320, 35 Stat. 1075 (1909).] For example, ownership and express ag reement were the relevant issues in Williams v. Weisser, 78 Cal Rptr. 542 (Cal. App. 1969), where the California Appellate Court decided that the professor owned the co mmon law copyright to his or her lectures. In this example, the pre-1976 common law wa s applied and it was determined that the professor and not the university was the ow ner of his lecture materials, regardless whether he or she developed them duri ng “leisure time” or university time.

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17 The court emphasized the undesirable consequences of constraining a professor’s ability to build on his or her original works to move freely to other educational institutions. While th is case only affected this par ticular district in California, and relied on former law, it revealed the policy concerns related to ownership issues. In an early case decision in the Washington D.C. courts, Sherrill v. Grieves, 57 Wash. L. Rep. 286 (S. Ct. D.C. 1929), the court deemed that the instructor at a U.S. Army school owned the copyright to a written version of his lectures. Again, while this is not the law of the land, it does reflect that copyright laws dating back to 1909 typically show that when it comes to lectures, professors (faculty) typically prevail as owners of their works. While courts have not addressed the issue directly, since the enactment of Title 17 of the United States Code (Copyright Act of 1976) there have been related issues addressed and the courts have varied in their treatment of copyright. For example, in Weinstein v. University of Illinois (811 F. 2d 11091, 1987) the Seventh Circuit Court of Appeals stated th at the 1976 Act “is general enough to make every academic article a ‘work-for-hire’ and therefore vest ex clusive control in universities rather than scholars” (Borow, 1998, p. 5). In a contradictory case, Hays v. Sony Corp. of America, (847 F.2d 412, 7th Cir. 1988), th e Seventh Circuit Court of Appeals ruled that faculty own copyrights in works they create even though the works are created during “school time [and] for school purposes” (p. 41 6) and would ordinarily be considered a “work-for-hire.”

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18 The Hays court cited the academic researcher exception to the “work-for-hire” doctrine under the 1909 Copyright Act, findi ng an “absence of any indication that Congress meant to abolish” th e academic researcher excep tion in passing the Copyright Act of 1976 (Borow, 1998, p. 5). Despite the fact that facu lty publish as part of thei r employment responsibilities and use university resources and supplies, the “universal assumption” prior to the Copyright Act of 1976 was that faculty were en titled to own the copyright for what they produce. At the center of the interpretati on controversy is how to apply the legal principles of “work-for-hire” within the realm of academia. In a landmark case related to this issue, Community for Creative Non-Violence (CCNV) v. Reid (490 U.S. 730, 1989), the United States Supreme Court clearly determined that the interpretation of the stat utory definition of “w ork-for-hire” must be guided by the common law of agency. Under agency law, the primary question that determines whether a work was prepared in the course of employment is wh ether the employer had the right to control the manner and means by which the work was produced. [See. e.g., NLRB v. Maine Caterers, Inc., 654 F.2d 131, 133 (CAI 1981). Cert. Denied, 455 U.S. 940 (1982)] In this case, CCNV, a non-profit association, commissione d Reid to create a sculpture. Once the sculpture was complete, both Reid and CCNV claimed to own the copyright to the sculpture. CCNV claimed c opyright under the “workfor-hire” doctrine. In contrast, Reid claimed that since he created the work, he was the rightful owner of the copyright.

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19 The Supreme Court held that Reid was the owner of the work under the Copyright Act, and that he was not a re gular employee of CCNV but, instead was an independent contractor. The case is relevant to the scope of employment issue because it has “implications for determining whether the edu cator is an employee” within the scope of employment (Borow, 1998, p. 5). Borow expl ained that the CCNV decision offered 13 factors for determining when a hired part y is an employee versus an independent contractor. When these factors are applied to the academic c ontext, the result is difficult to determine. Borow noted, “Scholarly work s produced by academics may or may not be considered “work-for-hire” because while four of the 13 factors weigh in favor of the faculty member and four of the factors wei gh in favor of the university, the remaining five factors have equities for both sides” (p. 5). The court in CCNV strongly suggested that “Congress intended ‘scope of employme nt’ to be defined under the general common law of agency” (p. 5). An excerpt from Title 17 helps us understand why the ownership issue of “workfor-hire” is so confusing. It would seem that faculty works would fall into the category of “work-for-hire,” if you read the following w ithout knowledge of prior common law that has interpreted the statute. According to Title 17, in some cases a “w ork-for-hire” is a work prepared by an employee within the scope of his or her empl oyment; in others it is a work specially ordered or commissioned for use in a collective work.

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20 “…as a part of a motion picture or other audiovisual work, as a sound recording, as a translation, as a supplementary work, as a compilation, as an inst ructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a “workfor-hire.” For the purpose of the foregoing sentence, a “'supplementary work” is a work prepared for publication as a seconda ry adjunct to a work by another author for the purpose of introducing, concl uding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwards, pictorial illust rations, maps, charts, tables editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an ''instructional text'' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities” (Title 17, Chapter 1, Section 101). While the foregoing excerpt is fairly clear regarding “work-for-hire” as it relates to “instructional text” in a compilation, it does not address th e whole project(s) or works created by faculty for courses, online or not. If copyright law since 1976, as it relates to academia, were simple to interpret, the ownership of online course materials would be clea r, but it is not. It is at this point that copyright law gets muddy and requires a care ful look at how Title 17 reads juxtaposed against how copyright has been interpreted in actual use.

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21 Since the Copyright Act of 1976, it would appear that a faculty member’s work would fall into the category of “work-for-hire,” if the basic principles of agency law were applied. For example, if the creator of the course materials meets the criteria as a regular employee, the work might be considered “work-for-hire.” The factors that could deem someone an employee include income tax withholding by the employer; withholding for benefits or benefits paid for by the employer; a work schedule set by the employer; the employer providing work space, materials and equipment to prepare the work; a long-term relationship between the employer and the worker and the right of the employer to assign and review the projects of the worker. Again, at first glance it appears that a faculty member is an employee, and therefore, subject to the “work-for-hire,” cl ause in the copyright law. However, in addition to this, faculty have “academic freedom ,” which helps to create a different, or perhaps, special type of relationship between faculty and the university. In most cases, the university does not have the right to superv ise scholarly production; therefore, in most cases, many or most of copyrightable f aculty works are not “work-for-hire.” So, in essence, faculty works do not meet the law of agency test; therefore, faculty works are not “work-for-hire.” Of course, each case should be evalua ted on its individual merits, but again, traditionally, most faculty works have been deemed the property of the author(s) and not that of the university or the institution.3 3 It is important to note that patents and trademarks have been treated differently by universities than copyrig htable materials, but these issu es will not be discussed here because they are beyond the scope of the present research study.

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22 It is obvious that the ambiguity of “w ork-for-hire” as it relates to copyright and academic freedom creates the need for clear, written policies relate d to this issue to protect both the rights and interest s of faculty and universities. Asking the Right Questi ons: Some Perspectives As with any attempt to find a satisfactory solution to any problem, first, there must be questions. Of course, if one aske d the wrong questions, there would never be a workable solution to any probl em. With this in mind, committ ees at various universities and organizations (such as the Consortium for Educational Technology for University Systems (CETUS)4 and Pew Symposium) have met to work out policies related to intellectual property and copyright issues. And, of course, ther e are conflicti ng points of view on the subject. (Carne vale, 1999; The Node Learni ng Technologies Network, 1999; Thompson, 1999; Twigg, 2000). For example, at one such meeting in 1999, Dennis F. Thompson, associate provost and professor of government at Harvar d University, said th e question(s) to ask related to information technology products created by faculty are not related to the attributes of the product itself, but to the need for faculty to shift and look at the circumstances of creating these products. T hompson said after the shift is made, the policy should be based on general principles that appeal to the core interests of the university and be applied to products produ ced by faculty, staff, and students. 4 The Consortium for Educational Technology fo r University Systems (CETUS) is made up of California State University, State Univer sity of New York and City University of New York.

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23 Of course, since Thompson (1999) was a provost, he was looking at the university interests as taking precedence over faculty interest s; however, it is important that faculty understand all side s of the issue. This is imperative because protecting an individual’s rights as creator should not violate or hinder th e rights and interests of all faculty members. In other words, there is a need to look at intelle ctual property policies from several points of view. Thompson (1999) outlined many questions that should be considered when creating intellectual property policies. He br oke the issues into basic themes based on financial, intellectual, and re putation concerns. The following questions just touch the tip of all possibilities, but show the scope and depth of th e intellectual property copyright issue. For example, Thompson posed the following questions: Why should the university not treat products created by faculty members in the same way it treats products created by staff members, i.e. as “workfor-hire?” Can a value be placed on the atmosphere a university provides for faculty to create work? If the university claims ownership, th en should the compensation structure be changed to accommodate this change? What is the effect of us ing the university’s name? What if the university’s name is damaged by a faculty member (Thompson, 1999 para. 11-48)?5 5 Retrieved August 26, 2003 from http://www.educause.edu/ir /library/html/erm99022.html

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24 While Thompson’s (1999) perspective came fr om a university administrator’s point of view, Alger (2002) pointed out some copyrig hts of concern to faculty related to online educational material s. Alger (2002) outlined th at faculty care about: the ability to edit and control the presentation of their work, and to exercise a right of first refusal in th e preparation of subs equent versions. the ability to change and update materials over time, reflecting new research, evidence, or developments. the ability to create derivative or related works (for example, faculty members may want to retain the ri ght to publish articles on subjects covered in online educationa l materials and courses). professional recognition and credit both in and outside the institution, including consideration of online works in promotion and tenure policies. the right to take educational materi als they create when they leave for another institution, for their own teaching and research purposes. the right to have a say in wh ether and how their works are commercialized, and to share in th e profits (if any) from such commercialization. the right to share their work with peer s in their discipli nes (e.g., to check their work or to build upon it). (Alger, 2002, pp. 2-3) These are just a few questions of con cern, but they highlig ht myriad issues surrounding the intellectual property ri ghts policy issue at universities.

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25 One thing is certain — ownership of c opyright includes both responsibility and possibility for all concerned. Foundations for Creating Policies The creation of policies and/ or guidelines related to copyright should be of the utmost importance to both faculty and univers ities. Indeed, this ha s been the topic of debate at many symposiums and meetings acr oss the nation (Carneva le, 1999; The Node Learning Technologies Network, 1999; Twi gg, C., 2000). Basic themes bubble forth repeatedly both in the work of scholars and in actual policies in use in U.S. universities. With the basic themes of ownership ri ghts, use, revenue, and control at the forefront, intellectual property and copyright policies at the university level should at the very least have a basic foundation based on ex isting copyright law and relevant common law and academic exception, taking into consid eration the rights and interests of all parties concerned. It would seem that sinc e one of the primary issues involved in copyright law is the right to distribute c opyrightable materials for financial gain, a flexible, living policy would be the overall best solution. In the next few pages are some highli ghts of a sampling of policy development ideas offered by academics and legal scholars. It is important that questions presen ted be resolved on campus to encourage faculty to create online courses and to ensure that universities have a reliable catalog of courses to sustain online programs.

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26 Evaluating Adequacy of Policies Kenneth D. Salomon (2000)6, a practicing copyright law attorney in Washington D.C., has provided the following “Checklist of Issues for Evaluating the Adequacy of Institutional Intellectual Prope rty and Employment Policies and Procedures for Electronic Courseware.” • Does your institution have an Intellect ual Property (“IP”) po licy? If so, when was it last reviewed and updated? • Does your IP policy qualify the ins titution for the Liability Safe Harbor protections of the Digital Millennium Copyright Act? • Does your IP policy address the issu e of faculty ownership of and economic interest in courseware? • Do the terms and conditions of faculty employment address the issue of faculty ownership of and economic interest in courseware? • Is your faculty organized? If so, does the collective bargaining agreement address the issue of faculty ownership of and economic interest in courseware? Has the matter been a formal subject of collective bargaining negotiations? • Does your IP policy and your terms and conditions of faculty employment distinguish between owners hip of traditional academic works (books, articles, lecture notes, syllabi, etc.) and ownershi p of electronic cour seware (Internet, video based, etc.) created by faculty? If so, how and where does your institution implement the distinction? 6 Retrieved from http://www.uoregon.edu/~jqj/nin ch/salomon-checklist.htm [August 26, 2003]

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27 • Does your IP policy and your terms and c onditions of faculty employment distinguish between courseware that is created by faculty independently and that which is created within the scope of employment? Does the policy provide clear guidance as to when a work is considered prod uced within the scope of employment? • Does your IP policy and your terms and conditions of faculty employment distinguish between works created under grants and those cr eated under contracts with third parties? Does your sponsored research office review all external agreements for IP issues? • Do your faculty employment policie s (or collective barg aining agreement) allow faculty to create courseware for ot her institutions? If so, does the policy define what role faculty may they play in the delivery, promotion and maintenance of such courseware? • Does your IP policy and your terms and conditions of faculty employment take into consideration the leve l of institutional financial, technol ogical and staff resources used by the faculty member to de sign and create the el ectronic work in determining ownership and economic interests? • Do your institutional policies deal with the circumstances under which the institution and the faculty member are permitted to use an electronic course after the faculty member leaves the institution? If continued use of electronic courses by the institution and the faculty member is contemplated, what mechanism has been adopted to effectuate that policy?

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28 • Does your IP policy and your terms and c onditions of faculty employment deal with the sharing of revenue between the ins titution and the faculty member generated by the internal use of course materials? • Does your IP policy and your terms and conditions of faculty employment deal with the sharing of reve nue between the institution and the faculty member generated by the external use of course materials? • Does your IP policy and your terms and conditions of faculty employment define who has the right (and how often) to update or modify an electronic course, and who may expand upon electronic courses? Does the institution and/or the faculty member have the right to requ ire updating of electronic courses? Do your policies cover updating course ma terials after the faculty member is no longer at the institution? • Does a faculty member who created an electronic course have the right of first refusal for the teaching of that course? • Have the institution’s copyright site righ ts licenses been reviewed to determine whether the rights granted under the licenses cover the specific technologies employed by the institution for delivery of electronic courses? • Is your IP policy coordina ted with your patent policy? • Does your institution aggressively protect the use of its name and logo? • Does your IP policy control the use of the institution’s name and logo on electronic courseware? • Is there a single office responsible for administering your IP policy and providing guidance to faculty on the polic y and on copyright and licensing issues?

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29 A Policy Checklist for Developing Copyright Ownership Policies In addition to Salomon’s questions, Kimb erly B. Kelley of the University of Maryland, University College, deve loped the following policy checklist7 to be used to develop policies for copyright ownership. (2002, pp. 11-15.) 1. The policy should allocate ownership, use and/or revenue. 2. The policy should define what ownership rights students and non-faculty has, if any. 3. The policy should address the issue of revenue sharing. 4. The policy should address the issue of competition usually by referring to the institution's policy concerning competition. 5. The policy should specify the role of agreements between faculty and the institution. 6. The policy should be written in light of federal copyright law and state law on employees of public educational institutions, when applicable. 7. The policy should address whether the amount of institutional and/or other resources will affect ownership and use. 8. The policy should set up procedures for administration of the policy. Questions about Ownership, Use, and Compensation Related to a Successful Copyright Ownership Model Ubell (2001) offered the following question(s) as posed by the Stevens Ad Hoc Committee on Web-based Inte llectual Property Rights8 when they asked: Who owns the rights to Web-based courses?” (p. 47) 7 See Kelley’s paper for detailed descriptions of these salient points.

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30 When institutions market and distribute e-courses, who own the rights? 1) Should copyright be in the name of the Web course developer or the university? 2) Under what conditions, if any, may copyright be assigned to the school? 3) If a school engages faculty to develop online courses, may the institution have someone else teach them. 4) May the university license e-courses to third parties, such as other schools, publishers, or distributors? 5) Do Web faculty have portability rights, allowing them to take their e-courses when they leave? 6) Should schools pay course develope rs separately from their normal compensation for online instruction? 7) If course developers receive portability rights — that is, if they can teach their e-courses elsewhere — should the next school compensate the originating college? 8) Should developers receive additional payment in the event the school licenses online courses? 9) In the event another faculty member at the originating school teaches an ecourse, should the developer receive extra compensation? 8 The Stevens Ad Hoc Committee on Web-ba sed Intellectual Property Rights was a group of faculty members and administrators at Stevens Institute of Technology and included Stanley Clark, Dilhan Kalyon, Lawrence Levi ne, David Naumann, Keith Sheppard and Robert Ubell (chair). The committee was fo rmed by Graduate School Vice President Joseph J. Moeller, Jr. and School of Engineer ing Dean Bernard Gallois. They drafted the intellectual property and copyright policy adopted by Stevens in February 2001 [See Appendix F.]

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31 Stevens Institute of Technology In tellectual-Property Policy Model Carnevale (2000) reported that both admi nistrators and faculty at New Jersey’s Stevens Institute of Technology have found its Intellectual-Property Policy (See Appendix F) to be a model for others to em ulate. Carnevele (2000) explained that the Steven’s policy gives many rights and rewa rds to faculty for creating and developing online courses. Simply put, faculty member s at Stevens are paid to develop online courses, and they own the material they de velop and control how and when the material can be used. Meanwhile, the institution contro ls the copyrights of the online courses and manages the courses’ distribution. Stevens Institute of Technology officially adopted the recommended policies in February 2001 (Ubell, 2001). Ubell (2000) likened the Steven’s polic y to a “traditional publishing agreement,” and claimed, “The model has been in place fo r centuries” (p. 47). He claimed the faculty would benefit from Steven’s handling of promotion and distribution chores. Themes Related to Creating Policy Language What makes the Stevens Institute of Technology Web-Based Course Intellectual Property Rights policy stand out for faculty and administrators to emulate are themes that are worthy of analysis and consideration. Among these themes are use of incentives for faculty creation of Web-based courses; belief that ownership is not an “all or nothing” proposition; fostering of creation, dissemination, and storage of Web-based inform ation; and adaptability of contracts, policies, and guidelines (Ubell, 2001, p. 46).

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32 While these themes are not the only discernible subjects contained in the recommendations, they encompass some basic human values that help make the policy work on both an emotional level and tangibl e one for many faculty and administrators. Six major considerations make Stevens polic es recommendations stand out (Ubell, p. 46). Copyright: A course developer’s co pyright to an entirely online course should be assigned to the school when the faculty me mbers agrees to enter a contract with the institution to develop it. Compensation: The agreement should compensate developers for creating entirely online courses in” virtual sp ace” — a provision that should not apply to online material presented in conventional classrooms in “physical space.” Faculty should also be compensated separate ly for entirely online instruction. Use: While copyright for an entirely online course is assigned to the university, the faculty member retains the right to use course ma terial components (notes, slides, exercises, and so on) for other purposes, such as conventional classroom teaching, publication, and lectures. Portability: In the event the developer delivers an entirely online course at other schools, a usage license fee should be paid to the originating institution. Third-party licensing: If an entirely online course is licensed to a third party — publisher, corporation, distri butor, or other school — th e course developer should receive a percentage of th e net licensing revenue. Additional compensation and limitations: If an entirely online course is taught at the school by someone other than th e developer, the faculty member who created it should receive a percenta ge of the net tuition revenue.

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33 The six named ideals can be narrowed down to three primary concerns for faculty and institutions — ownership, use, and compensation. Unbundling Rights Ubell (2001) specifically c ited the concept of “unbundling”9 of copyrights and intellectual property rights as a major step in creating policies and gui delines that faculty and institutions can appreciate and accept for use in the academic world. “Unbundling” is an important component of creating negotiable policies related to copyright and intellectual property. When “unbund ling” of copyright or intellectual rights occurs, it is acknowledged that “rights are extendable and divisi ble, and that they exist in the context of relationships” (Ubell, 2001, p. 46). Unbundling recognizes that lecture notes, slides, quizzes, and other course mate rials can have many properties and uses. 9 The concept of “unbundling” was fi rst articulated by the Consortium for Educational Technology for University System s (CETUS) (1997), the consortium jointly sponsored by California State University, State University of New York, and City University of New York. CETUS created a cornerstone publication, “Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning” (See Appendix F), which presented ideas desi gned to move university faculty and administrators forward cooperatively and productively into a realm of intellectual property ownership based on mutual benef it. Stevens applied the concepts of “unbundling” The basic premise of the publication is that an “all-or-nothing” approach to copyright ownership rarely leads to the most constructive resolution of issues related to the subject of copyright in higher education. It explains the con cept of the unbundling of rights; includes a set of illustrative scen arios that applies the “Three Cs”— creative impetus, control, and compensation –– in the determination of the owner of the copyright to a newly created work, and ends with some recommendations for university administration and faculty to consider as th ey establish policy and enter into contracts. While it is impossible to cover every possi ble scenario related to copyright, every effort should be made to cover as many possibili ties as imaginable, or to at the very least, create guidelines for applic ation of copyright law. It is important to keep the overall missi on of education in sight when trying to create workable solutions to copyri ght issues in an educational setting

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34 In essence, unbundling of rights related to copyright and intellectual property give the owners more control over each component of an online course. As an example, Ubell (2001) considered a slide program. For instance, a slide program can be viewed in a classroom, or be submitted to a periodical for use as an illustration, or perhaps be used in a Web-ba sed presentation and viewed by people all over the world. With this in mind, it is easy to imagine any component of instruction as an object that can be used in various ways. As independent objects, under copyright law, the owner of the object(s) has the right to sell these items separately. The concept of “unbundling” or breaking copyr ightable works in to “objects” is a premise upon which many intellectual policies a nd guidelines have been based, including the Stevens Institute of Technology policy Stevens and CETUS10 are not the only groups to offer intellectual property guidelines and models. Many scholars and lawm akers have offered suggestions for policy creation related to the owne rship of faculty works. Some Possible Scenarios Lawmakers and scholars include State of Washington Assistant Attorney General Clark Shores (1996), and Dan L. Burk (1997) an associate professor at Seton Hall University Law School. Shores outlined some minimum issues that should be addressed when producing intellectual property rights policies at universities. “(1) Whether the university will assert an ownership interest in some faculty works, and, if so, which ones; 10 See Appendix F for Stevens Institute draft recommendations and Appendix C for CETUS recommendations.

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35 (2) The means by which the university will obtain an ownership interest in those faculty works not consider ed “work-for-hire”; and (3) The process by which determinations of institutional interest will be made (Shores, 1996, p. 2). Burk (1997) offered some suggestions related to alloca tion of copyright ownership. Briefly, he outlined three “option sets” with basic assumptions. For example, in Option Set 1, it is assumed that the faculty members are authors of the works produced in conjunction with their employment at an institution. This option allows the faculty members to surrender management and control of the work(s) to the institution for some type of return of special remuneration. This might include a royalty of some type. In Option Set 2, Burk (1997) suggested th at the faculty member is an employee of the institution. That is, all work is done as “work-for-hire.” This could mean that the faculty creator might be given the right to use the work in classes, but the institution retains control of the work. Another option in this set might be that the faculty member could control and manage the licensing of th e work. In this opti on, the institution would have a right to royalties. In Burk’s (1997) Option Set 3, the institu tion is considered the author with an assignment of rights or license to the faculty members. In this option, the faculty creator could be given exclusive rights or a royalty as discussed in Option 2. With this option, the faculty member may be considered an indepe ndent contractor and authorship could vest with the faculty member, or an assignment of rights or license to use the materials could be given to the institutio n such as in Option 1.

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36 Burk (1997) maintained that these th ree options were not the only ways to allocate copyright ownership in an educatio nal setting, but rather, were just starting points. He noted that it is important to re member that ownership of copyrighted work may be divided in myriad ways depe nding upon time, geography, usage, and other limitations. The Sociological Meaning of Problem Definition Online course copyright policies that are mu tually beneficial to the author/creator and the university need to recognize some of the dynamics of the policy creation process, including especially the social meaning of “problem definition.” In a Journal of Higher Education article, Welsh (2000) defined the social meaning of problem definition. “…Problem definition” is a process of how “social conditions” are transformed into “social or polic y problems” through the symbolic interaction of human beings in a social environment. Understood sociologically, problem definition is important in the policy process because it determines the status of an issue on the public policy agenda. The problem definition process also shapes the range of acceptable and viable alternatives to the problem conditions, as well as the design of specific solutions or interventions aimed at responding to them…. Social conflict over the significance of a social problem or policy issue and the design of alternatives to it suggests that the problem definition process is neither linear nor deterministic….

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37 When the problem-definition process is viewed as symbolic interaction that is designed to promote or deny social agendas, six critical dimensions emerge (Rochefort & Cobb, 1994, p. 14–21). These concepts provide a basis for operationalizing the study of problem definition in the policy process. 1. Causality. The way a policy problem is defined generally includes statements about its orig ins. A statement about the cause of a policy problem is a strategi c choice that shapes the course, content and outcomes of a policy debate. 2. Significance. The significance of any social problem is not selfevident but emerges out of the str uggle of groups to define reality. Problems that are identified as the most significant are likely to move upward on the public policy ag enda. Perceptions of lesser severity tend to move problems downward on the list of policy priorities. 3. Incidence. Perceptions and information that demonstrates increasing frequency of a problem creates pressure for decisive policy intervention. 4. Novelty. Novel policy problems attr act considerable public attention because they are out of the ordinary, but they also lack familiar policy tools to deal with them. 5. Scope. The scope of an issue refers to the range of actors whose interests are directly a ffected by the problem. Proponents of an initiative may seek to expand their political base

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38 by establishing claims of relevancy to designate d constituents. That is, they may seek to elevate their definition of the problem through arguments of a broad social impact. 6. Ownership. Policy issues generally include a struggle over who has authority to delineate the cau ses, consequences, and solutions to social problems. A variety of groups may seek rights to participate in the definition a nd resolution of a policy issue. Ownership of an issue determines who sits on th e sidelines and who participates as a policy issu e progresses (Welsh (2000) pp. 674-677). Welsh (2000) contended, “Like all forms of property, legitimate course ownership is an organization of ideas that becomes an intersubjective and material reality because people act on the basis of their beliefs about it” (pp. 674-677). In other words, people are emotionally involved with the concept of ownership and what that means to them individually. Welsh (2000) argued, “effective policy maki ng is likely to require considerable attention to the process in which the policy problem is collectively defined, including an assurance that the broader context of higher education and its imp act on faculty working conditions are taken into account” (p. 694). It behooves universities and faculty to ag ree early on during talks about copyright ownership issues and how they pertain to the needs of both facu lty and the university.

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39 It is vital that faculty take a stand for protecting the ownership of copyrights in a university setting. Welsh (2000) added “education in the future depends on the ability and inclination of faculty leaders to become more ‘activistic’ or ‘entre preneurial’ in problemdefinition and policy-formati on processes” (p. 694). Welsh (2000) contended that his study of how the Kansas State Board of Regents developed its intellectual prope rty policy showed “t hat faculty may need to become more effective in setting the agenda for higher e ducation policy formation by taking the lead in defining the policy problems higher education fa ces, rather than merely reacting to or resisting agendas establis hed by others.” (p. 694). Welsh (2000) pointed out “significant” questions for policy makers at higher educational facilities should include: “Wha t is the policy process engendering these changes? What conflicts occur in its c ourse? How are these policy problems being defined? Who has the power and au thority to define them” (p. 674). Welsh’s (2000) explanation of problem definition should help faculty and university administrators sort out priorities ba sed on the status of the issues of copyrights in a university setting. Once the two sides of the copyright issue agre e on the “range of acceptable and viable alternatives,” they can “design a set of specific solutions.” The very premise of this thesis is to aid in finding these ranges of vi able alternatives and solutions by providing a foundation upon whic h to build upon existing knowledge of copyright ownership at U.S. universities.

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40 Research Question “How have universities and faculty created on line course copyright policies that are mutually beneficial to the au thor/creator and the university?” The literature reviewed for this thesis revealed that many academics have written on concerns about copyright law and its ap plication to faculty ownership of online courses. Legal scholars and uni versity administrators have discussed the pros and cons of myriad methods of producing copyright policie s that benefit both the universities and their faculty members. While there were no definitive “ best practices”11 found through the Literature Review, there are options. Initially, I thought the ownership issu e “who owns online courses?” was the primary question to be solved; however, after reviewing the literatur e, I have concluded that “who owns what?” is not the real issu e at hand. Instead, the literature points to certain themes related to existing copyright policies and work done by scholarly and legal minds, perhaps the most important of which is “unbundling of rights, ” that provide the basis for creating tangible, logical, university copyright policies, th at address themes of use, control, and revenue. With this conclusion in mind, I have de termined that the primary research question is “How have univers ities and faculty created onlin e course copy right policies that are mutually beneficial to the author/creator and the university?” This question raises some complex, interes ting, and important issues that need to be addressed at all education institutions. 11 Kelley’s (2000) survey sought to determin e “best practices” among universities related to intellectual property copyright policies, but th e criteria of that survey did not match the criteria set forth for this thesis, so her de finitions of “best prac tices” were not used.

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41 Every higher educational facility should have guidelines for policies and/or contracts related to copyright and intellectual property with clear definitions about what constitutes copyrighted mate rial and how it will be treated in university settings. The scope of this question is broad and c overs such themes as the “bundling” or “unbundling” of rights, compensation, ownershi p and use of copyrighted materials (Burk, 1997; Carnevale, 1999; Clark, 1998; Gorma n. 1998; Guernsey, 1998; Noble, 1997, 1998; Salomon, 2000; Shores, 1997; Thompson, 1999; Twigg, 2000; Young, 1998, 1999; Ubell, 1999, 2000). While copyright and intellectual property rights issues are not new in academia, the Internet has changed the nature of how th ese issues are perceived in higher education. Over the past decade, Internet use has b ecome a preferred mode of knowledge sharing. With this preference, more and more higher education facilities and faculty members are creating online courses, also known as “cour seware” for use by the individual colleges and universities. (Carnevale, 1999; Gorm an, 1998; Noble, 1997; 1998; Twigg, 2000). Traditionally, most faculty members have been far more concerned with the creation and dissemination of knowledge than about who owns the courses and the obligations created after the course is cr eated. (Carnevale, 1999; Gorman, 1998; Noble, 1997; 1998; Twigg, 2000). Consequen tly, most of the work done related to copyright and intellectual property issues has b een done by publishers and libraries. Education is changing — where students once walked the halls abuzz with discussions of classroom-based academics, t oday the hum is of digital technology alive with chats and discussion boards in vi rtual classrooms on personal computers.

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42 The content of these classes is still created by faculty, who by tradition, have been the copyright owners of the course mate rial they have produced for classroom use at universities (AAUP 1997, 1999; AAU Task Force, 1994; Twigg, 2000). Due to the ever-increasing use of Internet and digital sources for the creation and dissemination of information in education, th e creation of mutually beneficial policies and contracts for faculty and university is of utmost importance to academia now more than ever. Therefore, the creation of a resource tool for university faculty and administrators to use to help create policies is crucial.

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43 Chapter 3 Methodology For universities and faculty members, ge tting over the emotio nal issues and down to the foundation of what is truly at stake in a copyright policy fo r online courses is of major concern. To avoid that problem, the goal of this thes is is to provide a re source tool to help universities and faculty sort out the necessary elements of the thinking process that will help them create an online course copyright policy that is mutually beneficial to the author/creator and the university. After reviewing the literature and studie s by Lape (1992) and Packard (2001) as well as the 2001-2002 surveys of 79 2-year a nd 4-year universities conducted by Kelley, Bonner, McMichael and Pomea (2002), it became apparent that faculty and universities across the United States were attempting to understand the complex ities of copyright ownership as applied to online courses as well as other faculty works. It was at this point that the idea of creating a resource tool to ease the burden for these people came into being. With literally hundreds of universities from which to choose, it was logical to look at the universities represented in the Lape (1992), Packard (2001) and Kelley, Bonner, McMichael and Pomea (2002) studi es and surveys. With more than 150 possibilities and the limitations of a thesis, it made since to limit the selection to a manageable number. With that in mind, many of the universi ties were selected based on Kelly’s (2002) survey from which respondent s deemed certain universities in their opinion were worthy of note for reasons known only to themselves.

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44 Other universities were selected based on literature related to acknowledgement those policies being of intere st. This would apply to Stev en’s Institute of Technology. Others were chosen at random based solely on location. These selections included the University of South Florida and Florida State University. The one known factor for all selected uni versities was that they had policies related to copyright in place. Other than that, no other information was known and the criteria was applied to each one based on the knowledge gained as a reader of the literature. Criteria determination The criteria for the creation of this resource tool was developed from the literature. As themes, issues, and questions bubbled forth from the literature, the themes were noted. For example, the initial basic questions are represented by Table A-2, which was the second table created after Table A-1, wh ich is a discussion of the work of Lape (1992) and Packard (2002). Table A-2 is a basic table meant to be simplistic and informational. It is a reflection of the basic information needed to start basic research into other university policies. Table A-2 identifies the 21 universit ies by identification number, name and date of the copyright policy creation or revision as well as URL addresses and dates of retrieval. Table A-2 answers the questions: 1) Does the university have a copyright policy? 2) Does the university have a separate courseware or online copyright policy?

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45 3) Does the university claim copyright ownership of faculty-produced works? As a reader of the literature, the go al for developing the criteria and the comparison points to be applied to each polic y was simple. The question was, “If I were a faculty member or an administrator at a uni versity, what resource tool would help me make intelligent knowledge-based decisions that would be mutually beneficial to both the faculty member (s) and the university?” The literature offered a gamut of questions from educators, attorneys, copyright experts, university round tables and consor tiums. As the themes issued forth, basic themes and questions developed, so with the end user in mind, the resource tool is meant to be flexible and living. It is a starting point. The thinking process for this thesis wa s often sporadic and disjointed; however, over time the pieces started to fit together much like a mental jigsaw puzzle. Again, with the thought in mind that this entire thesis is a resource tool to be used as a guide for starting the process of creati ng online copyright policies base d on the work of others at universities in the United States. The questions also called comparis on points applied to each policy were developed a result of the questions asked and sometimes answered or defined by the literature. Furthermore, the number of questi ons is infinite dependi ng on the direction any one person may choose to follow. However, th e first 25 questions reflect the four basic themes which bared themselves repeatedly in the literature: The scope of this question is broad and covers such themes as the “bund ling” or “unbundling” of rights, compensation, ownership and use of copyrighted material s (Burk, 1997; Carnevale, 1999; Clark, 1998;

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46 Gorman. 1998; Guernsey, 1998; Noble, 1997, 1998; Salomon, 2000; Shores, 1997; Thompson, 1999; Twigg, 2000; Young, 1998, 1999; Ubell, 1999, 2000). Dissembling the Policies The tool is a review of 21 university policies and offers a foundation for universities and faculty members to use as a starting point for crea ting their own policies and contracts.12 The bulk of the criteria are ba sed on surveys conducted in 1990-91 by Laura Lape (1992) and replic ated in 1999-2000 by Ashley P ackard (2001) along, with the 2001-2002 surveys of 79 2-year and 4-year universities13 conducted by Kimberly B. Kelley, Kimberly Bonner, James S. McMichael and Neal Pomea (2002). Altogether (Lape, 1992; Packard, 2002; and Kelley, et al., 2002) studied approximately 150 universities. Criteria for th is thesis are based on the aforementioned research as well as gleaned from the literature and will be documented as presented. Table A-214 identifies the 21 universities by iden tification number, name and date of the copyright policy creation or revision as well as URL addresses and dates of retrieval. 12 I have not attempted to rank or rate any of the policies since this is not a quantitative work. 13 Many of the universities selected were ba sed on the recommendations of respondents to Kelley’s (2002) survey. Selected were: Univ ersity of Kansas, University of Alabama, University of Washington, University of Ma ssachusetts, University of North Texas, University of Texas System, University of Chicago, Stanford University, University of Illinois, University of Minnesota, Univ ersity of Wisconsin and Brigham Young University. 14 Table A-2 ID 1 University of Alabama (Revised April 12, 2001) http://www.ua.edu/academic /facsen/handbook/append-h.html [March 10, 2003] Table A-2 ID 2 University of Chicago (Revised April 27, 1999) http://www.uchicago.edu/adm /ura/guidelines/G200/223.html [March 10, 2003] Table A-2 ID 3 University of Kansas (Revised Feb. .23.2003)

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47 http://www.kansasregents.org/download/aca_affairs/policymanual/kborpm2242003.pdf [March 10, 2003] Table A-2 ID 4 University of Illinois (Revised July 22, 2002) http://www.vpaa.uillinois.edu/polic ies/coursewaredownload.asp#report [March 10, 2003] Table A-2 ID 5 University of Georgia (Revised Nov. 19, 2001) http://www.usg.edu/admin/policy/600.phtml [March 11, 2003] Table A-2 ID 6 University of Indiana (May 9, 1997) http://www.indiana.edu/~rugs/respol/intprop.html [March 11, 2003] Table A-2 ID 7 University of Massachusetts (Dated Copyright 1998) http://www.umass.edu/research/intelgrad.html [March 12, 2003] Table A-2 ID 8 University of Minnesota (May 15, 2001) http://www1.umn.edu/regents/policie s/academic/IntellectualProperty.pdf [March 14, 2003] Table A-2 ID 9 University of North Texas http://www.unt.edu/planning/ UNTPolicy/volume3/1611.html [Mach 14, 2003] Table A-2 ID 10 San Diego University (R evised Aug. 11, 2000) Distance Education Policy (Revised April 6, 2000) http://www.rohan.sdsu.edu/dept/s enate/sendoc/distanceed.apr2000.html Intellectual Property Policy http://gra.sdsu.edu/dra/Inte ll_Property_5-9-00_Final.htm Table A-2 ID 11 Michigan State University (Revised June 22, 2001) http://www.msu.edu/unit/facrecds/FacHand/develpcopyright.html [March 14, 2003] Table A-2 ID 12 Stanford Univ ersity (Revised Dec. 22, 1998) http://www.stanford.edu/dept/DoR/rph/rphpdf/5-2.pdf [March 10, 2003] Table A-2 ID 13 Stevens Institute of Technology http://www.stevens\tech.edu/it/s ervices/policy_statements.shtml Table A-2 ID 14 University of Texas Syst em (Revised Jan. 20, 2003) Standard policy http://www.utexas.edu/academic/otl/policy.html [March 11, 2003] Table A-2 ID 14 University of Texas Syst em Plain English version [March 11, 2003] http://www.utexas.edu/academic /otl/PlainEnglishPolicy.html Table A-2 ID 14 University of Texas Sy stem Education materials (contracts) http://www.utsystem.edu/ogc/inte llectualproperty/edmatrls.htm [March 11, 2003] Table A-2 ID 15 University of Wisconsin (Revised Nov. 24, 1997) http://www.uwsa.edu/fadmin/gapp/gapp27.htm [March 11, 2003] Table A-2 ID 16 University of Washington (Revised Dec. 20, 2000) http://www.washington.edu/faculty/facsenate/handbook/04-05-07.html [March 10, 2003] Table A-2 ID 17 Brigham Young University (Not Dated) http://ipsinfo.byu.edu/ippolicy.htm [March 11, 2003] Table A-2 ID 18 University of S outh Florida (Revised October 2000) http://www.acad.usf.edu/handbook/hbchapter7.html [March 10. 2003] Table A-2 ID 19 Florida State University http://www.fsu.edu/Books/Faculty-

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48 Table A-2 also answers the basic questions: 4) Does the university have a copyright policy? 5) Does the university have a separate courseware or online copyright policy? 6) Does the university claim copyright ownership of faculty-produced works? 15 The purpose of Table A-2 is basic. It reflect s whether each univer sity has a copyright policy and/or a separate coursewa re (online) policy in place. It also notes if the university claims or disclaims copyright ownership and any noted exceptions. The questions are answered with a simple “yes” or “no” and incl ude an asterisk (*) to indicate special notes are provided in the footer of each table. Faculty and university officials seeki ng information from other universities related to copyright po licies might use Table A-2 as a tool from which to begin gathering policies that may relate to their initial idea of how they would like to create their policies. For example, if a policy review committee we re trying to research universities with separate courseware policies, they might use Table A-2 to find policies designated as such. Handbook/Ch6/Ch6.19.html [March 14, 2003] 20 University of North Carolina (Revised Nov. 8, 2002) http://www.northcarolina.edu/legal/policymanual/500.2.pdf [March 11, 2003] Primer: http://www.northcarolina.edu/legal/copy right/PrimerOnCopyrightOwnership.cfm [March 11, 2003] Table A-2 ID 21 Winston-Salem State University (Revised Sept. 21, 2002) http://gorams.wssu.edu/intell ect/Approved%20Copyright%20policy.htm [March 11, 2003] 15 *Notes clarifying information provided.

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49 At a quick glance, one could see that out of the 21 universities, only four have separate courseware policies. If this is of interest, one could visit those Web sites and retrieve the policy (ies) for analysis. At the same time, one could note which universities claim university copyright ownership as well as which universities do not claim university copyright ownership.16 While every educational institut ion is different and has varyin g needs, one interested in creating policies and contracts should be able to read the information compiled in this thesis and choose a selection of policies from which to emulate new policies and contracts to fit their unique situations. (For an additional selection of universities to review, see Appendix B for listings of universities studied by Packard, 2001). Additional tables are: Table A-3, Table A-4, Table A-5 and Table A-6. Table A-3 breaks down universities with separate c ourseware policies; Table A-4 describes universities with pro universit y copyright ownership policie s with exceptions; Table A-5 depicts universities with pro faculty c opyright ownership policies under certain conditions (N*),17 Table A-6 depicts universities with pro university ownership without exceptions. All the university policies retrieved fr om the World Wide Web were downloaded in Adobe Acrobat (pdf) format, Microsoft Wo rd, or copied and pa sted in plain text format. There were no fees or expenses involve d other than the cost of paper and printer ink to print the material for review. 16 One could also note any special exce ptions denoted by the asterisk (*). 17 N* indicates that while the university doe s not claim copyrights initially they will claim copyright under certain conditions such as “extraordinary” use of university resources as defined by individual policies.

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50 It was not my intention to create a “form” to fill out, but rather to provide faculty and administrators an easy to understand docum ent to be used as a springboard to help create policies and contracts related to copyright ownership of online courses. Comparison Points The following comparison points18 were developed after re viewing the literature and deriving what seemed to be valid questions presented by scholars at various universities, they then were then applied to each university’s copyright policy, and a simple “yes” or “no” answer was given.19 Q1: Does copyright policy exist? Q2: Does copyright policy address online courses or digital courses directly? Q3: Does separate policy exist related to copyright of online courses or distance education courses delivered via WWW or Internet? Q4: Does policy adhere to federal copyright laws? Q5: Does policy define copyright ownership related to online courses or courseware? Q6: Does policy define what works fall under co pyrightable instructional materials? Q7: Does policy define ownership rights related to traditional teaching materials? Q8: Does policy define copyright compensation? Q9: Does university assert ownership of faculty works? If so, are definitions provided to aid in understanding? Q10: Does university assert that faculty owns works produced? If so, are there definitions in place to aid understanding? 18 Comparison points are general in nature and may be expa nded by individuals based up their policy needs and recommendations. Thes e comparison points are by no means all inclusive of every possible question. 19 Q stands for Question.

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51 Q11: If university asserts that faculty ow ns works, is there a method in place for university use or university licensing? Q12: If university asserts ow nership under certain conditions, are these conditions clearly defined? Q13: Does policy address the issue of owners hip based on use of university resources or not? Q14: Is there a provision for naming the uni versity as owner if it initiates the work? Q15: Does the faculty member retain ownershi p and copyrights if he/s he is the creator of the work? Q16: Does policy define copyright use? Q17: Is the language clea r and free of “legalese?” Q18: Is there room for negotia tions written into the policy? Q19: Does the policy “unbundle” the rights of copyright? Q20: Does the policy address “academ ic freedom” by name or definition? Q21: Does the author of the copyrighted mate rial have the right to update the material unfettered by the university? Q22: Does the author of the work have contro l to limit use and change s to his/her original work? Q23: Do authors have control of licensing to institutions other than original university? Q24: Does policy address multiple authors’ issues? Q25: Are there definitions in pl ace for all ownership forms?

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52 When juxtaposed with the other policy questions (see pages 21-28) presented in this thesis, users of this tool should have a useful launch pad from which to build copyright ownership policies, that are mu tually beneficial to both faculty and administrators at U.S. universities.

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53 Chapter 4 Findings and Discussions Tool Tables Review The creation of a tool for faculty and university administrators to use as a foundation for the creation of individual copyrig ht and online courseware policies is the primary goal of this thesis. With this mi ndset, a small sampling of universities was gleaned from the Literature Review. Some unive rsities were chosen from the listings of Lape (1992), Packard (2001) and Kelley (2002). Other universities were chosen a random based on an Internet search using the search term: uni versity copyright policy. While some universities fall into distinct categories such as pr o-university copyright ownership or pro-faculty copyright ownership, others fail into unique categories such as those having separate courseware policies. (Tables A-3, A-4, A-5 and A-6 reflect some of the possible combinations of how unvers ity copyright policies may be viewed.20) Table A-3 Universities with separate courseware policies21 There are four universities studied that have separate courseware policies pertaining to distance educati on and/or online courses. 20 By no means are these categories the only possibilities for analysis of policies; however, for the narrow focus of this thesis these were deemed apropos. 21 Table A-3-ID 2 University of Chicago http://www.uchicago.edu/adm /ura/guidelines/G200/223.html Table A-3-ID 3 University of Kansas http://www.kansasregents.org/download/acaaffairs/policymanual/kborpm2242003.pdf Table A-3-ID 4 University of Illinois http://www.vpaa.uillinois.edu/polic ies/courseware_download.asp#report Table A-3-ID 13 Stevens Institute of Technology http://www.stevens\tech.edu/it/s ervices/policystatements.shtml

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54 Included in this group are the University of Chicago, University of Kansas, University of Illinois and Stevens Institute of Technology. All four universities have copyright policies and all have a separate policy pertaining to online courses or digital courses. Out of the 21 universities reviewed, this sampling represents 19 percent or approximate ly one-fifth of the universities sampled. One hundred percent adhere to the federal copyright laws. All four define copyright ownership as it relates to online courses and to traditional instructional materials. Each uni versity policy also addresses the issue of copyright compensation. Two universities, University of Kansas and University of Illinois assert university ownership of work produced by faculty. These two universities also provide definitions to aid in the understanding of what constitute s faculty work the university may claim. The University of Chicago and Steven s Institute of Technology also assert university ownership of faculty work under certain circumstances, such as use of “substantial resources,” which is defined by each university’s policy. Stevens Institute of Technology sometimes acknowledges faculty ow nership of certain work per policy. Question (Q11) does not apply to the Univ ersity of Chicago and University of Illinois. Both the University of Kansas and Stevens Institute of Technology have methods in place for university licensing procedures. All four universities have clear definitions in place related to the conditions of university assertion of copyright ownership of faculty works.

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55 All four-university policies address us e of university resources. One hundred percent have methods in place to name the unive rsity as copyright owne r if it initiates the work. Under certain defined conditi ons, all four universities held that the creator of the work retained ownership of certain copyrights related to the work. All four universities defi ned copyright use. One unive rsity, the University of Chicago used “legalese” and made its polic y hard to understand. The other three had relatively easy-to-understand language.22 Three universities include language relate d to “leaving room for negotiation” in their courseware policies. The University of Chicago did not. The concept of “unbundling” of copyrights was not mentioned by the University of Kansas or University of Illinois and was not considered by the University of Chicago. Only the Stevens Institute of Technology embraced the idea. The University of Chicago did not addr ess the issue of academic freedom, while the other three uni versities all did. The University of Kansas, University of Illinois and Stevens Institute of Technology all agreed that f aculty authors have a right to update their materials unfettered by the university; that authors have control of licensing to other institutions other than the original university. The trio of universities also a ddressed the issues of multiple authors and provided definitions for all ownership forms. Questions 21 through 25 could not be a pplied to the University of Chicago. 22 This is the author’s perception of what is easy to understand or not understand. In most cases, if “legalese” or legal terms were omitted, the policy seemed to be easier to understand in layman’s terms. Each polic y should be reviewed and judged upon its overall merit to the individual.

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56 In summary, these four universities re present a small but growing trend toward separate policies pertaining to courseware or distance learning policies related to copyright ownership. Table A-4 Universities with Pro University copyright ownership*23 Out of 21 universities studied, six out of 21 had pro-university24 ownership policies. This includes some universities w ith separate courseware policies. The six universities include the University of Kansas University of Illinois, University of Georgia, University of Massac husetts, Michigan State Univers ity and University of South Florida.25 All six universities had copyright policies in pl ace. While Michigan State University and the University of South Flor ida did not address online courses or digital courses directly, the remaining four did. The University of Kansas and University of Illinois had separate courseware policies, while the remaining four did not. 23 Table A-4 ID 3 University of Kansas http://www.kansasregents.org/download/aca_affairs/policymanual/kborpm2242003.pdf Table A-4 ID 4 University of Illinois http://www.vpaa.uillinois.edu/polic ies/coursewaredownload.asp#report Table A-4 ID 5 University of Georgia http://www.usg.edu/admin/policy/600.phtml Table A-4 ID 7 University of Massachusetts http://www.umass.edu/research/intelgrad.html Table A-4 ID 11 Michigan State University http://www.msu.edu/unit/facrecds/FacHand/develpcopyright.html Table A-4 ID 18 University of South Florida http://www.acad.usf.edu/handbook/hbchapter7.html 24 Pro-university copyright policy means that the university typical ly claims at least partial if not all of the co pyrights of faculty-produced wo rks within that particular universitys definitions.

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57 All six universities a dhered to federal copyright laws and five universities except the University of South Florida addressed th e copyright ownership of online courses or courseware in their policies. All universitie s gave definitions of what works fall under copyrightable instructional materials. All universities defined copyright ownershi p right related to traditional teaching materials. All six universities defined copyright compensation. All six universitie s addressed copyright compensation. All six universities asserted ownership of faculty work, and defined the meanings. Although each university claims the copyrig htable works of faculty initially, under certain circumstances, faculty authors ma y retain ownership rights as defined by individual university policies. While the University of Illinois and Univ ersity of Georgia do not assert that faculty owns works produced, the remaini ng universities do with definitions provided about when this would occur. If a university asserts ownership under ce rtain conditions, only the University of South Florida did not clearl y define the conditions. All six universities addressed the issue of ownership based on use of university resources as it related to copyright ownership. All six universities had writt en provisions about naming the university as owner if it initiates the work. The University of Kansas and the University of Florida allows faculty members to retain certain copyright ownership rights within certain definitions. All six universities de fined copyright use.

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58 For the most part, only the University of South Florid a policy as deemed harder to understand due to “legalese.” The University of Kansas and University of Illinois had built-in provisions for negotiations in their policies. University of Georgia could not be determined based on the language used and the University of Mass achusetts, Michigan St ate University and University of South Florida did not appear to have negotiations for copyrights mentioned in their policies. The University of Kansas and Univers ity of Illinois addr essed the issue of “unbundling of rights,” while the University of South Florida did not mention it. It could not be determined by the language used if the University of Georgia, University of Massachusetts, Michigan St ate University addressed the term of “unbundling.” Academic Freedom was addressed by the University of Kansas, University of Illinois and University of Georgia. The Univ ersity of Massachusetts, Michigan State and University of South Florida did not a ddress it in their copyright policies. Only the University of South Florida did not allow changes to copyrighted materials without university involvement. Again, only the University of South Florida did not allow author of creative works to control limit of use and changes to his/her original work. The University of Kansas, University of Illinois, University of Georgia, and Michigan State allowed aut hors to control licensing of his/her work with other universities. University of South Florida did not.

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59 All universities except University of S outh Florida addressed multiple authors’ issues in policy. The University of Massachusetts and Univ ersity of South Fl orida did not have definitions in place for all ownership forms. Table A-5 Universities with Pro University Copyright Ownership26 Four universities could be separated from the 21 as being Pro University Copyright Ownership. The universities are University of Chicago, University of Minnesota, Brigham Young University and Florida State University.27 All four pro-university ownership universiti es had copyright policies. Of the four, the Univeristy of Chicago and Florida Stat e University addresse d online courses and digital courses. None of the four had sepa rate policies. All adhered to the federal copyright laws. Split in half, two universities, the Univ ersity of Chicago and Florida State University both defined copyright ownership as related to online co urses or courseware. All four universities defined traditional teaching materials as copyrightable. All four defined copyright compensation. 26 Table A-5 ID 2 University of Chicago http://www.uchicago.edu/adm /ura/guidelines/G200/223.html Table A-5 ID 8 University of Minnesota http://www1.umn.edu/regents/policie s/academic/IntellectualProperty.pdf Table A-5 ID 17 Brigham Young http://ipsinfo.byu.edu/ippolicy.htm Table A-5 ID19 Florida State University http://www.fsu.edu/Books/FacultyHandbook/Ch6/Ch6.19.html 27 Table A-5 ID 2 University of Chicago http://www.uchicago.edu/adm /ura/guidelines/G200/223.html Table A-5 ID 8 University of Minnesota http://www1.umn.edu/regents/policie s/academic/IntellectualProperty.pdf Table A-5 ID 17 Brigham Young http://ipsinfo.byu.edu/ippolicy.htm Table A-5 ID19 Florida State University http://www.fsu.edu/Books/FacultyHandbook/Ch6/Ch6.19.html

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60 All four universities have definitions in place related to univ ersity ownership and how it will be determined for aid in understanding. All four universities in this category assert university ownership with explanations of this meaning. In cases when a faculty me mber may retain the copyrights, only Florida State University did not have a method in pl ace for university use or university licensing. All four universities define conditions upon which it will asse t ownership of copyrights. All four universities addre ss the issue of ownership ba sed on use of university resources and also all have provisions for nami ng the university as copyright owner it the university inititates the work. Only Florida State University does not al low the faculty to retain ownership and copyrights if he/she is the creator of the work. All four university policies defined copyright use. There is question as to whether the language used by the University of Chica go and Florida State University is free of legalese. None of the universities a ddresses negotiations in th eir policies pertaining to copyrights. None of the four addressed “ unbundling of rights” or academic freedom by name or definition. It did not appear th at any of the four universitie s allowed the author of works control to limit use or change original works. None of the universit ies allowed the authors to control licensing to other institutions. It could not be determined if the Univer sity of Chicago had definitions in place for all ownerships form. Brigham Young did not, while the University of Chicago and Florida State University did.

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61 Table A-6 Universities with Pro Faculty Copyright Ownership N*28 Ten universities, of the 21 examined, decl ared that while the university does not claims copyrights initially, it will claim c opyright under certain conditions such as extraordinary use of univers ity resources, as defined by individual policies. These 10 universities might be considered pro-f aculty ownership. The 10 universities are University of Alabama, University of Indi ana, University of North Texas, San Diego State University, Stanford University, University of Texas System, University of Wisconsin, University of Washington, Univers ity of North Carolina, and Winston-Salem State University. 28 Table A-6 ID 1 University of Alabama http://www.ua.edu/academic /facsen/handbook/append-h.html Table A-6 ID 6 University of Indiana http://www.indiana.edu/~rugs/respol/intprop.html Table A-6 ID 9 University of North Texas http://www.unt.edu/planning/ UNT_Policy/volume3/16_1_1.html Table A-6 ID 10 San Diego University http://gra.sdsu.edu/dr a/IntellProperty5-900Final.htm Table A-6 ID 12 Stanford University http://www.stanford.edu/dept/DoR/rph/rph_pdf/52.pdf Table A-6 ID 14 University of Texas System http://www.utexas.edu/academic/otl/policy.html Table A-6 ID 14 University of Texas System Plain English version. http://www.utexas.edu/academic /otl/PlainEnglishPolicy.html Table A-6 ID 14 University of Texas Sy stem Education materials (contracts) http://www.utsystem.edu/ogc/inte llectualproperty/edmatrls.htm Table A-6 ID 15 University of Wisconsin http://www.uwsa.edu/fadmin/gapp/gapp27.htm Table A-6 ID 16 University of Washington http://www.washington.edu/faculty/facsenate/handbook/04-05-07.html Table A-6 ID 20 University of North Carolina http://www.northcarolina.edu/legal/policymanual/500.2.pdf Table A-6 ID 21 WinstonSalem State University http://gorams.wssu.edu/intell ect/Approved%20Copyright%20policy.htm

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62 All 10 universities had a copyright policy in existence, however, only University of North Texas, San Diego University, Stanfo rd University, University of Texas System, and University of North Carolina policies a ddressed online or digi tal courses directly. None of the 10 had separate courseware pol icies. All adhered to federal copyright guidelines. All 10 universities defined copyrig htable instructional materials in their policies; all defined rights of ownership rela ted to traditional teaching materials; and all defined copyright compensation (som e more clearly than others.) All 10 universities indicated that while they do not claim ownership of faculty works initially, under certain circumstances su ch as “extraordinary” use of university resources, they might claim the work. Each university gave definitions related to this issue. All asserted that facult y own the scholarly works at least initially. All 10 universities had methods in place for univers ity use and/or university licensing. All 10 defined conditions under which they would claim copyrightable works. All 10 university policies addressed th e issue of ownership based on use of university resources; and all 10 named provision s for naming the university as owners if it initiated the work. All 10 supported faculty ownership for creators of copyrightable work and defined copyright use. Nine of the universities ha d clear language except or th e University of Indiana. It was unclear by the language used by the Univ ersity of Alabama, University of Indiana and the University of Washington if there wa s room for negoiations between the faculty and university related to copyrig hts. All other unive rsities in this grouping were open to negotiations related to c opyrights with faculty.

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63 At six universities, it wa s not clear if the concept of “unbundling” of copyrights was being used. It did appear that the Univer sity of North Texas, San Diego University, Stanford University, and University of Texas System was attempting to define copyrightable “objects” in their policies. Four out of the 10 addressed the issue of “academic freedom” either by name or concept in their policies. These were Univer sity of North Texas, San Diego University, Stanford University, and University of Texas System. In all 10 universities, the author of copyr ightable material may change it without interference from the university. All 10 universities offer authors contro l to limit use and changes to his/her original work and to control licensing of the original work to other institutions other than the original university. Nine of the 10 universities appeared to address multiple author issues in their policies. The University of Indiana did not appear to address definitions for all forms of ownership, and it was not possible to determine by the language used if the University of Alabama or University of Washington did or not. All others defined ownership terms.

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64 Discussion of a selected policy Looking deeper: University of South Florida This particular copyright policy was chosen because the copyright policy consisted of only six paragraphs, which is re latively short compared to the majority of policies provided by most universities. (Since the policy is no longer available, it is included for informational purposes only. Th e following was derived from information posted on the University of South Florid a’s Web site March 10, 2003. The page is no longer available.) The following points of interest were includ ed in the University of South Florida Copyright Policy consisting of six paragraphs. 1) Recognized authors as c opyright owner; then 2) Claimed work if author of wo rk used university resources; 3) Noted exceptions to claims of copyrightab le work, but did not use clear language. 4) Did not mention online courses specifically. 5) Had separate Web policy claiming copyright for anything posted on its Web site. 6) University had 60 days to determine if it wanted to claim rights to any works. The University of South Florida descri bed its copyright policy briefly in its faculty handbook posted on the In ternet. Under University Copyright Policy USF 0-105, the university recognized that works are copyrighted when fixed to any medium including documents on the Internet or World Wide Web. In this particular section, USF seemed particularly interested in fair use, wh ich is not of concern for the purposes of this thesis.

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65 However, in the section titled Inve ntions and Works USF 0-300 CBA Art. 1, USF defined copyrighted works according to federal copyright guide lines and contended that the author owned the work under the following, “If a work is made in the course of independent efforts without use of university re sources, facilities or property, the work is the property of the employee.” The policy continued with the notice that th e “if the work is made with the use of university resources, facilities or property, the work is the pr operty of the university and the employee shall share in any proceeds from that work.” Note, the policy stated, “if the work is ma de with the use of university resources, facilities or property, the work is the prope rty of the university.” This could be interpreted that any work done using any uni versity resources including office space, computers, paper, etc. would make the work owned by the university. The policy went on to name exceptions saying, “ exceptions include books, articles and similar works intended for the dissemination of research and scholarship, or works developed without the use of appreciable university su pport and used solely for the purpose of assisting or enhancing the empl oyee's instructional assignment.” At best, USF’s policy was unclear. “If a work falls under that designated as property of the university, the employee must disclose the work and the circumstances of its creation to the Vice President for Research. The university has 60 days to make a determination whether the university will seek an interest in the work. The university and the employee will then reach agreement that reflects the intere sts of both parties.”

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66 Another interesting point in the policy is that the Univ ersity had up to 60 days to determine if it would seek interest in the wo rk. This statement appeared to take into account a “20/20 hindsight ” theory. If the university deemed a copyrightable work to be worth its interest, it would seek ownership. There is no mention of predetermination or methods for faculty to rebut th e policy. There is no mention of how the agreement will be reached to reflect the interests of both parties. This brief discussion is just an illust ration of how the wording of policies is important to the understanding of a policy by all who are expected to understand and abide by it. When developing policies, word choice should be of utmost importance. How to use the resource tool Scenario 1) A university and it faculty want to cr eate a new online copyright policy. The administrators decide they need to look at samples of other policies. In this case, they have chosen to look at a va riety of policies. They look at Tamara Patzer’s thesis: “Unive rsity Copyright Policies for Online Courses: An Evaluative Resource Tool for Unbund ling Rights of Use, Control and Revenue.” After reading it and learning a bout the basics of the issues, they decided to use the resource tool. Initia lly, they look at Table A-2 and proceed with a basic exploration. See figure 1, 2, 3, 4, 5, and 6.

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67 Chapter 5 Conclusions Since there is no “one size fits all” an swer to creating a un iversity copyright policy to satisfy all needs for all people, one goal of this thesis was to help faculty and university administrators understand the issu es involved in creating a copyright policy that focuses on online courses (also known as Web courses) courseware, or new media. The Literature Review pointed out that with no clear overriding legal guidelines available through the court system, and not hing more than tradition guiding some universities and faculty members as to the ownership and rights of use of facultyproduced online materials, at a very minimum now is the time to put university copyright policies and guidelines in wr iting. It would behoove universi ties and faculty to hammer out clear, legally binding contra cts that protect both parties — i.e., the university and the faculty member(s). At least, all universitie s and colleges should have policies addressing copyright related issues pert aining to online courses and all forms of copyrightable materials produced by faculty and students. Such policies need to be in place due to the ever-increasing use of Internet and digital sources for the creation and disse mination of information in education. As a proponent for the unbundling of c opyrights and written contracts and policies, I am aware that cont racts may not be the answer for all occasions; however, a well-written document legally binding upon all pa rties can only help create a mutual understanding between those part ies involved, and may, in fact help keep open the lines of communication regarding academic creativity.

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68 This thesis provided a starting point for th is complex transaction in the form of a living, flexible resource tool and included some basic ba ckground about copyright law, relevant case law related to “work-for-hire,” and relevant academic freedom issues. This resource tool reviewed 21 U.S. universitie s and answered some basic questions about their copyright policies and gene ral trends toward pro-univers ity or pro-faculty copyright ownership. The limitations of this thesis tool are th at while there are hundreds of colleges and universities in the United States, this thesis only reviewed 21. Ho wever, its weakness is also its strength, since this resource tool is not meant to be a definitive work, but a foundation upon which others can build upon in the future. With hundreds of universities in the United States, a small sampling of 21 is just the cornerstone of a living, flexible document, which can be expanded, updated, de fined, and developed. For example, a Web site could be created starting with the initia l 21 universities described in the tables and added to infinitum.29 Another limitation is there are only 25 comparison points, i.e., questions. Again, these initial 25 comparison points could be expanded, developed, and added upon to create a more comprehensive assessment tool. The comparison points can be as simple or as complex as one needs them to be for any given purpose related to copyright policies at U.S. universities. 29 This could be a full-time job for some dedicated individual, since policies are constantly being revised and updated.

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69 Yet another limitation is interpretation of meaning (s) within each given policy. Certain passages30 may be interpreted differently by others who read the document, especially in the case where no definitions were provided by the university (ies). This is true of almost any document, a nd again users of the tool may delete or expand the information as they choo se for their individual needs. Time and date of information retrieval may also be a limitation. For example, when a tool user tries to access them, some policies may not exist due to revisions or changes in individual policies. However, in most cases, the users of the tool will be directed to a new policy or be told the Web site is no longer in existence. Dead URL or Web site links are another potential problem in using the tool in the future. However, unless a university ceases to ex ist, the information should rema in available either via the Internet or through written sources. Certainly, the general premise of using existing university copyright policies upon which to build new ones is a valid procedure. This resource tool is a starting point. Now that the groundwork has been laid, others can use the tool to create online course copyright policies that could benefit to the author/creat or and/or the university. The resource tool created can be a valuable asset to any university faculty/administrator team seeking to crea te new copyright polic ies related to online courses. Even without downloading any specific policies, faculty and university administrators could easily draw conclusi ons about online copyri ght policies just by referencing Table A-2, which give s the basic information of whether or not the university 30 See Looking deeper: University of South Florida, page 59.

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70 policy leans toward university ownership of copyright policy or toward faculty ownership policies. This in itself is an excel lent resource tool for those users who already know the direction they wish to pursue fo r their own online polic ies. The remaining tables, A-3, A-4, A-5 and A-6, are tailored even more specific copyright concerns. Thus, the purpose of the resource tool does not direct users to any specific university or policy, but instead, aids the user in finding a selection of policies, that may help individuals develop their own policies fo r their unique situations. In the end, the resource tool can be used by either faculty or university members with very different results depending upon the user’s needs. The tool helps save time, money and human resources.

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71 Figure 1: Sample Process Flow Chart for using Table 3 Universities with Separate Coureware Polcies Step 1: Choose an ID number and cro ss reference it with a university on list. For example, choose ID 2, which is Un iversity of Chicago. Choose a question. Step 2: Choose any question: For exam ple, choose question Q9. Does university assert ownership of faculty works? If so, are definitions provided to aid in understanding? Step 3: Answer to Question 9 for ID 2 is Y*. See Footnote for Y*, it indicates that while university claims work s by faculty initially, under certain circumstances, faculty authors may re tain ownership rights as defined by individual policies. Step 4: Continue asking questions about each university until satisfied.

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72 Figure 2: Sample Process Flow Chart for using Table 4 Universities with Pro University Copyright Policies Step 1: Choose an ID number and cross -reference it with a university on list. For example, choose ID 3, which is Univer sity of Kansas. Choose a question. Step 2: Choose any question: For exam ple, choose question Q9. Does university assert ownership of faculty works? If so, are definitions provided to aid in understanding? Step 3: Answer to Question 9 for ID 3 is Y*. See Footnote for Y*, it indicates that while university claims work s by faculty initially, under certain circumstances, faculty authors may re tain ownership rights as defined by individual policies. Step 4: Continue asking questions about each university until satisfied.

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73 Figure 3: Sample Process Flow Chart for using Table 5 Universities with Pro University Ownership Policies Step 1: Choose an ID number and cr oss-reference it with a university on list. For example, choose ID 17, wh ich is Brigham Young University. Chooseaquestion Step 2: Choose any question: For example, choose question Q9. Does university assert ownership of faculty works? If s o, are definitions provided toaidinunderstanding? Step 3: Answer to Question 9 for ID 17 is Y. Y= Yes. Step 4: Continue asking questions about each university until satisfied.

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74 Figure 4: Sample Process Flow Chart for using Table 6 Universities with Pro Faculty Ownership N* Step 1: Choose an ID number and cr oss reference it with a university on list. For example, choose ID 1, which is University of Alabama. Choose a question Step 2: Choose any question: For example, choose question Q9. Does university assert ownership of faculty works? If s o, are definitions provided toaidinunderstanding? Step 3: Answer to Question 9 for ID 1 is N*. See Footnote for N*. N* indicates that while the university does not claims copyrights initially, it will claim copyright under certain conditions such as “extraordinary” use of universit y resources, as defined b y individual policies. Step 4: Continue asking questions about each university until satisfied.

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75 References AAU Task Force on Intellectua l Property Rights. (1994). Report of the AAUP Task Force on intellectual property rights in an electronic environment. Retrieved March 10, 2002 from http://www.arl.org/aau/IPTOC.html AAUP (Committee A on Academic Fr eedom and Tenure). (1997, June). Academic freedom and electronic communicati ons. Retrieved March 10, 2002 from http://www.aaup.org/statelec.htm AAUP Special Committee on Distance Educatio n and Intellectual Property Issues. (1999, May/June). Distance education and intellectual property Academe pp. 41-45. AAUP. (1994). Statement on copyrig ht. Retrieved March 10, 2002 from http://www.aaup.org/spccopyr.htm Alger, J. (2002, June 15) Online policy, ethics & law: what you need to know. Part II: Ownership and control of online materials. Distance Education Report v. 6 no.12 p. 2, 6. Retrieved March 10, 2002 from Wilson Select Plus database. Borow, T.A. (1998, Winter). Copyright ow nership of scholarly works created by university faculty and posted on school provided web pages. University of Miami Business Law Review 2(1), 149-169.Retrieved Ma rch 10, 2002 from Academic Universe/Lexis-Nexis online database. Burk, D.L. (1997, Fall). Ownership of electroni c course materials in higher education. Cause/Effect 20(3), 13-18. Retrieved March 10, 2002 from http://www .educause.edu/ir/library /html/cem9734.html

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76 Burk, D.L. (1998, Spring). Ownership issues in online use of institutional materials. Cause/Effect, 21(2), 19-27. Retrieved March 10, 2002 from http:// www .educause.edu/ir/library/html/cem9826.html Carnevale, D. and Young, J.R. (1999, D ec. 17). Who owns on-line courses? Colleges and professors start to sort it out. The Chronicle of Higher Education. Retrieved March 10, 2002 from http://chr onicle.com/free/v46 /i17/17a04501.htm Community for Creative Non-Violence ( CCNV) v. Reid (490 U.S. 730, 1989). Consortium for Educational Technology for Univ ersity Systems (CETUS) “Ownership of new works at the university: Unbundli ng of rights and the pursuit of higher learning.” Retrieved March 10, 2002 from http://www.cetus.org/ownership.pdf Gorman, R. A. (1998). Intellectua l property: The rights of facu lty as creators and users. Academe, 84 (3), 14-18. Guernsey, L. (1998). A provost challenges his faculty to retain copyright on articles. Chronicle of Higher Education, 45(4), A29. Retrieved December 12, 2000 from Academic Universe/Lexis-Nexis online database. Guernsey, L. & Young, J. (1998). Professors an d universities anticipat e disputes over the earnings from distance learning The Chronicle of Higher Education. Retrieved September 3, 2003 from http://chronicle.com/colloquy/98/ownership/background.shtml Kelley, K.B. (2000). Courseware development for distance education: Issues and policy models for faculty ownership. Paper pr esented at EDUCAUSE 2000 in Nashville, October 10-13, 2000. Retrieved March 22, 2003 from http://www.educause.edu/asp/doclib/abstract.asp?ID=EDU0015

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77 Kelley K., Bonner K., McMichael J., and N. Pomea. (2002). In tellectual property, ownership and digital course materials: A study of intellectual property policies at two-and four-year coll eges and universities Portal: Libraries and the Academy, Vol. 2, No. 2, pp. 255-266. Lape, L. G. (1992). Ownership of copyright able works of university professors: The interplay between the co pyright act and universit y copyright policies. Villanova Law Review, 37, 223-269. Laughlin, G. K. (2000). Who owns the copyright to faculty-created Web sites? The workfor-hire doctrine's applicabil ity to Internet resources cr eated for distance learning and traditional classroom courses. Boston College Law Review, 41, 549. Retrieved December 11, 2000 from Academic Universe/Lexis Nexis online database. Hays v. Sony Corp. of Am., 847 F.2d 412, 416 (7th Cir. 1988) NLRB v. Maine Caterers, Inc., 654 F.2d 131, 133 (CAI 1981). Cert. Denied, 455 U.S. 940 (1982)] Noble, D.F. (1997, Oct.) Digital Diploma Mills: The automation of higher education. First Monday, 3(1). Retrieved September 3, 2003 from http://firstmonday.dk/is sues/issue3_1/noble/ Noble, D.F. (1998, March). Digital Diploma Mill, Part II. Retrieved September 3, 2003, http://communication.ucsd.edu/dl/ddm2.html Noble, D.F. (1998, March). Digital Diploma Mill, Part III. Retrieved September 3, 2003, http://communication.ucsd.edu/dl/ddm3.html

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78 Noble, D. F. (1998). The coming battle over online instruction Sociological Perspectives, 41(4), 815(811). Retrieved March 10, 2002 from Expanded Academic Index online database. Packard, A. "Copyright or Copy Wrong: An Anal ysis of University Claims to Faculty Work," Communication and Law Policy Volume 7 (Summer 2002): Number 3 Pages 275-316. Retrieved March 10, 2002 from Academic Universe/Lexis-Nexis online database. Rochefort, D. A. and R W. Cobb, eds. ( 1994) The Politics of Problem Definition: Shaping the Policy Agenda. Kansas. University of Kansas Press. Salomon, K. D. (2000). Copyright consideratio ns in distance education and technologymediated instruction. Headline News. Retrieved March 10, 2002 from http://199.75.76.16/headline/070700head1.htm Salomon, K. D. (2000). Checklist of issues fo r evaluating the adequacy of institutional intellectual property and employment pol icies and procedures for electronic courseware. Retrieved from http://www.uoregon.edu/~jqj/ninch/salomonchecklist.htm August 25, 2003. Sherill v. Grieves, 57 Wash. L. Rep. 286 (S. Ct. D.C. 1929). Shores, C. (1997, January 13). Ownership of faculty works and university copyright policy. Association of Research Libraries Retrieved March 10, 2002 from http://www.arl.org/newsltr/189/owner.html The Node Learning Technologies Netw ork. (1999, Fall). The rights stuff: Ownership in the digital academy (Lear ning Technologies Report). Retrieved September 3, 2003 from http ://node.on.ca/ltreport/ip/

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79 Thompson, D. P. (1999, March/April). In tellectual property meets information technology. Educom Review, 34.2 Retrieved March 10, 2002 from http://www.educause.edu/ir/l ibrary/html/erm99022/html Title 17 of the United States Code cont aining the Copyright Act of 1976. Sec. 101 through Sec. 106. Retrieved March 10, 2002 from http://www.loc.gov/copyright/docs/ Twigg, C. (2000). Who owns online courses a nd course materials: Intellectual property policies for a new learning environment. The Pew Learning and Technology Program 2000 Retrieved March 10, 2002 from http://www.center.rpi.edu/PewSym/Mono2.pdf Weinstein v. University of Illinois (811 F. 2d 11091, 1987) Williams v. Weisser, 78 Cal Rptr .542 (Cal. App. 1969) Young, J. R. (1999, April 9) A debate over ow nership of on-line courses surfaces at Drexel U. The Chronicle of Higher Education,, 45(31), A31(31). Retrieved March 22, 2002 from Academic Universe/Lexis-Nexis online database. Young, J. R. (1998). UCLA contr act shows complexity of issu es involving ownership of on-line courses. Chronicle of Higher Education. Retrieved March 22, 2002 from Academic Universe/Lexis-Nexis online database. Ubell, R. (2000) Draft recommendations of intell ectual property rights of web-based course material created and developed by instructors at St evens Institute of Technology. Retrieved September 4, 2003 from Educause database http://www.educause.edu/asp/doclib/abstract.asp?ID=CSD1474

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80 Ubell, R. (2001) Who owns what? Unbundling we b course property rights Educause Quarterly, No. 1, page 45-47 Retrieved September 3, 2003 from http://www.educause.edu /ir/library/pdf/EQM0117.pdf

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81 Appendices

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82 APPENDIX A: TABLES Table 1-A Trends in Academe regarding rights of university professors related to copyright issues Based on research by Lape (1990-91) and Packard (2000) [See Appendix B for List of Universities Surveyed] Trend Definition Lape 1990-91 Packard 2000 Trend +/Number of universities studied with written policies related to copyright 59 66 + Number of universities studied without written policies related to copyright 11 1 Number of universities studied with draft forms only related to copyright 5 3 Universities claiming faculty work (with use of substantial resources) 42 57 + Universities attempting to define “substantial use” in dollar amounts. 2 1 Universities claiming faculty work (excluding use of libraries, etc.) 16 20 + Allowing faculty to retain copyright ownership to literary work. 16 49 + Control of Property • No breakout 12 No basis Academic Freedom Language 18 29 + Distinguish software from other copyright work 19 19 (Not necessarily the same schools.) = Software incorporated into policies • No breakout 34 No basis Separate Policies Related to Software 5 5 (Not necessarily the same schools = Software treated in patent policies 4 2 Work for Hire 25 37 +

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83 Table A-1 continued Trend Definition Lape 1990-91 Packard 2000 Trend +/University claim works of people hired to produce works 9 12 + Universities claim commissioned work 10 23 + University accepts “workfor-hire” within meaning of Copyright Act. (Stipulates “work-for-hire” agreements are signed prior to start of work. 6 18 (within meaning of Copyright Act or statement claiming work developed within scope of employment.) + Joint Ownership 18 5 Non-exclusive, royalty-free licenses for university use of faculty work 10 16 + Share of income via royalty to professor if university claims ownership 46 50 (not the case if works are classified as “work-for-hire”) + Creative control retained by faculty over works claimed by university 5 7 + Revision rights retained by professors 7 10 (only one entitled professor to make work) + Grants authors to use claimed work for new works 1 6 + Allows professors to unilateral control of work used outside university 0 0 = Transfer of work back to professor is commercialization did not take place in certain amount of time. 6 16 (few are mandatory) + Interpretation/Adjudication Not mentioned 33 No basis Binding Arbitration Not mentioned 3 No basis Fairness issue of university officials making decisions 0 0 =

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84 Table A-1 continued Trend Definition Lape 1990-91 Packard 2000 Trend +/Enforcement provisions Noted, but no breakout. 8 No basis Confusing language, inconsistency Not mentioned in survey, but noted in text. Not mentioned in survey, but noted in text. No basis Academic freedom language used 26% 46% + Universities disclaiming traditional scholarly work 23% 71% +

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85 ID# Name of University (with revision dates if applicable) TABLE A-2 World Wide Web URL addresses for policies with retrieval dates Copyright Policy Y=Yes N=No SY=Separate Courseware policy Pro U claims university ownership Y=Yes N=No Notes31 1 University of Alabama (Revised April 12, 2001) http://www.ua.edu/academic/facs en/handbook/append-h.html [March 10, 2003] Y N* 2 University of Chicago (Revised April 27, 1999) http://www.uchicago.edu/adm/ura /guidelines/G200/223.html [March 10, 2003] Y, SY Y 3 University of Kansas (Revised Feb. .23.2003) http://www.kansasregents.org/do wnload/acaaffairs/policymanual/ kborpm2242003.pdf [March 10, 2003] Y, SY Y* 4 University of Illinois (Revised July 22, 2002) http://www.vpaa.uillinois.edu/pol icies/courseware_download.asp#r eport [March 10, 2003] Y, SY Y* 5 University of Georgia (Revised Nov. 19, 2001) http://www.usg.edu/admin/policy /600.phtml [March 11, 2003] Y Y* 6 University of Indiana (May 9, 1997) http://www.indiana.edu/~rugs/res pol/intprop.html [March 11, 2003] Y N* 7 University of Massachusetts (Dated Copyright 1998) http://www.umass.edu/research/in telgrad.html [March 12, 2003] Y Y* 8 University of Minnesota (May 15, 2001) http://www1.umn.edu/regents/pol icies/academic/IntellectualPropert y.pdf [March 14, 2003] Y Y 31 Notes* Y* indicates that while university claims works by faculty initially, under certain circumstances, faculty authors may retain ownership rights as defined by individual policies. N* indicates that while the university does not claims copyrights initially they will claim copyright under certain conditions such as extraordinary use of university resources as defined by individual policies.

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86 ID# Name of University (with revision dates if applicable) TABLE A-2 World Wide Web URL addresses for policies with retrieval dates Copyright Policy Y=Yes N=No SY=Separate Courseware policy Pro U claims university ownership Y=Yes N=No Notes 9 University of North Texas http://www.unt.edu/planning/UN T_Policy/volume3/16_1_1.html [Mach 14, 2003] Y N* 10 San Diego University (Revised Aug. 11, 2000) Distance Education Policy (Revised April 6, 2000) http://www.rohan.sdsu.edu/dept/s enate/sendoc/distanceed.apr2000. html Intellectual Property Policy http://gra.sdsu.edu/dra/Intell_Pro perty5-9-00Final.htm Y N* 11 Michigan State University (Revised June 22, 2001) http://www.msu.edu/unit/facrecds /FacHand/develpcopyright.html [March 14, 2003] Y Y* 12 Stanford University (Revised Dec. 22, 1998) http://www.stanford.edu/dept/Do R/rph/rph_pdf/5-2.pdf [March 10, 2003] Y N* 13 Stevens Institute of Technology http://www.stevens\tech.edu/it/ser vices/policy_statements.shtml [March 10, 2003] See Appendix E. Y, SY 14 University of Texas System (Revised Jan. 20, 2003) Standard policy http://www.utexas.edu/academic/ otl/policy.html [March 11, 2003] Plain English version [March 11, 2003] http://www.utexas.edu/academic/ otl/PlainEnglishPolicy.html Education materials (contracts) http://www.utsystem.edu/ogc/inte llectualproperty/edmatrls.htm [March 11, 2003] Y N* 15 University of Wisconsin (Revised Nov. 24, 1997) http://www.uwsa.edu/fad min/gapp/gapp27.htm [March 11, 2003] Y N*

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87 ID# Name of University (with revision dates if applicable) TABLE A-2 World Wide Web URL addresses for policies with retrieval dates Copyright Policy Y=Yes N=No SY=Separate Courseware policy Pro U claims university ownership Y=Yes N=No Notes 16 University of Washington (Revised Dec. 20, 2000) http://www.washington.edu/facult y/facsenate/handbook/04-0507.html [March 10, 2003] Y N* 17 Brigham Young (Not Dated) University http://ipsinfo.byu.edu/ippolicy.ht m [March 11, 2003] Y Y 18 University of South Florida (Revised October 2000) http://www.acad.usf.edu/handboo k/hbchapter7.html [March 10. 2003] Y Y* 19 Florida State University http://www.fsu.edu/Books/Facult y-Handbook/Ch6/Ch6.19.html [March 14, 2003] Y Y 20 University of North Carolina (Revised Nov. 8, 2002) http://www.northcarolina.edu/leg al/policymanual/500.2.pdf [March 11, 2003] Primer: http://www.northcarolina.edu/leg al/copyright/PrimerOnCopyright Ownership.cfm [March 11, 2003] Y N* 21 WinstonSalem State University (Revised Sept. 21, 2002) http://gorams.wssu.edu/intellect/ Approved%20Copyright%20poli cy.htm [March 11, 2003] Y N*

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88 Table A-3 Universities with separate courseware policies 32 Questions Y= Yes N= No See footnote N/A=not able to determine by language used 2 3 4 13 Q1: Does copyright policy exist? Y Y Y Y Q2: Does copyright policy address online courses or digital courses directly? Y Y Y Y Q3: Does separate policy related to copyright of online courses, distance education courses delivered via WWW or Internet exist? Y Y Y Y Q4: Does policy adhere to federal copyright laws? Y Y Y Y Q5: Does policy define copyright ownership related to online courses or courseware? Y Y Y Y Q6: Does policy define what works fall under copyrightable instructional materials? Y Y Y Y Q7: Does policy define ownership rights related traditional teaching materials? Y Y Y Y Q8: Does policy define copyright compensation? Y Y Y Y Q9: Does university assert ownership of faculty works? If so, are defini tions provided to aid in understanding? Y* Y Y Y* Q10: Does university assert that faculty owns works produced? N Y N Y* Q11: If university asse rts that faculty owns works, is there a method in place for university use or university licensing? N/A Y N Y 32 Table A-3-ID 2 University of Chicago http://www.uchicago.edu/adm /ura/guidelines/G200/223.html Table A-3-ID 3 University of Kansas http://www.kansasregents.org/download/acaaffairs/policymanual/kborpm2242003.pdf Table A-3-ID 4 University of Illinois http://www.vpaa.uillinois.edu/polic ies/courseware_download.asp#report Table A-3-ID 13 Stevens Institute of Technology http://www.stevens\tech.edu/it/s ervices/policy_statements.shtml (See Appendix E.)

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89 Table A-3 Universities with separate courseware policies 33 Questions Y= Yes N= No See footnote N/A=not able to determine by language used 2 3 4 13 Q12: If university asserts ownership under certain conditions, are th ese conditions clearly defined? Y* Y Y* Y* Q13: Does policy address the issue of ownership based on use of university resources or not? Y Y Y Y Q14: Is there a provision for naming the university as owner if it initiates the work Y Y Y Y Q15: Does the faculty member retain ownership and copyrights if he/she is the creator of the work? Y Y Y Y Q16: Does policy define copyright use? Y Y Y Y Q17: Is the language clear and free of legalese? N Y Y Y Q18: Is there room for negotiations written into the policy? N Y Y Y Q19: Does the policy unbundle the rights of copyright? N N/A N/A Y Q20: Does the policy address academic freedom by name or definition? N Y Y Y Q21: Does the author of the copyrighted material have the right to update the material unfettered by the university? N/A Y Y Y Q22: Does the author of the work have control to limit use and changes to his/her original work? N/A Y Y Y Q23: Does authors have control of licensing to other institutions other th an original university? N/A Y Y Y 33 Table A-3-ID 2 University of Chicago http://www.uchicago.edu/adm /ura/guidelines/G200/223.html Table A-3-ID 3 University of Kansas http://www.kansasregents.org/download/acaaffairs/policymanual/kborpm2242003.pdf Table A-3-ID 4 University of Illinois http://www.vpaa.uillinois.edu/polic ies/courseware_download.asp#report Table A-3-ID 13 Stevens Institute of Technology http://www.stevens\tech.edu/it/s ervices/policy_statements.shtml (See Appendix E.)

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90 Table A-3 Universities with separate courseware policies 34 Questions Y= Yes N= No See footnote N/A=not able to determine by language used 2 3 4 13 Q24: Does policy address multiple authors issues in policy? N/A Y Y Y Q25: Are there definitions in place for all ownership forms? N/A Y Y Y 34 Table A-3-ID 2 University of Chicago http://www.uchicago.edu/adm /ura/guidelines/G200/223.html Table A-3-ID 3 University of Kansas http://www.kansasregents.org/download/acaaffairs/policymanual/kborpm2242003.pdf Table A-3-ID 4 University of Illinois http://www.vpaa.uillinois.edu/polic ies/courseware_download.asp#report Table A-3-ID 13 Stevens Institute of Technology http://www.stevens\tech.edu/it/s ervices/policy_statements.shtml (See Appendix E.)

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91 Table A-4 Universities with Pro University copyright ownership*35 Questions Y= Yes N= No See footnote N/A=not able to determine by language used 3 4 5 7 11 18 Q1: Does copyright policy exist? Y Y Y Y Y Y Q2: Does copyright policy address online courses or digital courses directly? Y Y Y Y N N Q3: Does separate policy related to copyright of online courses, distance education courses delivered via WWW or Internet exist? Y Y N N N N Q4: Does policy adhere to federal copyright laws? Y Y Y Y Y Y Q5: Does policy define copyright ownership related to online courses or courseware? Y Y Y Y Y N Q6: Does policy define what works fall under copyrightable instructional materials? Y Y Y Y Y Y Q7: Does policy define ownership rights related traditional teaching materials? Y Y Y Y Y Y Q8: Does policy define copyright compensation? Y Y Y Y Y Y 35 Table A-4 ID 3 University of Kansas http://www.kansasregents.org/download/acaaffairs/policymanual/kborpm2242003.pdf Table A-4 ID 4 University of Illinois http://www.vpaa.uillinois.edu/polic ies/courseware_download.asp#report Table A-4 ID 5 University of Georgia http://www.usg.edu/admin/policy/600.phtml Table A-4 ID 7 University of Massachusetts http://www.umass.edu/research/intelgrad.html Table A-4 ID 11 Michigan State University http://www.msu.edu/unit/facrecds/FacHand/develpcopyright.html Table A-4 ID 18 University of South Florida http://www.acad.usf.edu/handbook/hbchapter7.html

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92 Table A-4 Universities with Pro University copyright ownership*36 Questions Y= Yes N= No See footnote N/A=not able to determine by language used 3 4 5 7 11 18 Q9: Does university assert ownership of faculty works? If so, are definitions provided to aid in understanding? Y* Y* Y* Y* Y* Y* Q10: Does university assert that faculty owns works produced? Y* N N Y* Y* Y* Q11: If university asserts that faculty owns works, is there a method in place for university use or university licensing? Y N N/A Y Y* Y Q12: If university asserts ownership under certain conditions, are these conditions clearly defined? Y Y* Y* Y Y N Q13: Does policy address the issue of ownership based on use of university resources or not? Y Y Y Y Y Y Q14: Is there a provision for naming the university as owne r if it initiates the work Y Y Y Y Y Y Q15: Does the faculty member retain ownership and copyrights if he/she is the creator of the work? Y* Y Y Y Y Y* Q16: Does policy define copyright use? Y Y Y Y Y Y 36 Table A-4 ID 3 University of Kansas http://www.kansasregents.org/download/acaaffairs/policymanual/kborpm2242003.pdf Table A-4 ID 4 University of Illinois http://www.vpaa.uillinois.edu/polic ies/courseware_download.asp#report Table A-4 ID 5 University of Georgia http://www.usg.edu/admin/policy/600.phtml Table A-4 ID 7 University of Massachusetts http://www.umass.edu/research/intelgrad.html Table A-4 ID 11 Michigan State University http://www.msu.edu/unit/facrecds/FacHand/develpcopyright.html Table A-4 ID 18 University of South Florida http://www.acad.usf.edu/handbook/hbchapter7.html

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93 Table A-4 Universities with Pro University copyright ownership*37 Y= Yes N= No See footnote N/A=not able to determine by language used 3 4 5 7 11 18 Q17: Is the language clear and free of legalese? Y Y Y Y Y N Q18: Is there room for negotiations written into the policy? Y Y N/A N N N Q19: Does the policy unbundle the rights of copyright? Y Y N/A N/A N/A N Q20: Does the policy address academic freedom by name or definition? Y Y Y N/A N N Q21: Does the author of the copyrighted material have the right to update the material unfettered by the university? Y Y Y Y Y N Q22: Does the author of the work have control to limit use and changes to his/her original work? Y Y Y Y Y N Q23: Does authors have control of licensing to other institutions other than original university? Y Y Y N/A Y N Q24: Does policy address multiple authors issues in policy? Y Y Y Y Y N Q25: Are there definitions in place for all ownership forms? Y Y Y N Y N 37 Table A-4 ID 3 University of Kansas http://www.kansasregents.org/download/acaaffairs/policymanual/kborpm2242003.pdf Table A-4 ID 4 University of Illinois http://www.vpaa.uillinois.edu/polic ies/courseware_download.asp#report Table A-4 ID 5 University of Georgia http://www.usg.edu/admin/policy/600.phtml Table A-4 ID 7 University of Massachusetts http://www.umass.edu/research/intelgrad.html Table A-4 ID 11 Michigan State University http://www.msu.edu/unit/facrecds/FacHand/develpcopyright.html Table A-4 ID 18 University of South Florida http://www.acad.usf.edu/handbook/hbchapter7.html

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94 Table A-5 Universities with Pro University Copyright Ownership38 Questions Y= Yes N= No See footnote N/A=not able to determine by language used 2 8 17 19 Q1: Does copyright policy exist? Y Y Y Y Q2: Does copyright policy address online courses or digital courses directly? Y N N Y Q3: Does separate policy related to copyright of online courses, distance education courses delivered via WWW or Internet exist? N N N N Q4: Does policy adhere to federal copyright laws? Y Y Y Y Q5: Does policy define copyright ownership related to online cour ses or courseware? Y N N Y Q6: Does policy define what works fall under copyrightable instructional materials? Y Y Y Y Q7: Does policy define ownership rights related traditional teaching materials? Y Y Y Y Q8: Does policy define copyright compensation? Y Y Y Y Q9: Does university assert ownership of faculty works? If so, are defini tions provided to aid in understanding? Y Y Y Y Q10: Does university assert that faculty owns works produced? N N* N N Q11: If university asse rts that faculty owns works, is there a method in place for university use or university licensing? Y Y Y N Q12: If university asserts ownership under certain conditions, are th ese conditions clearly defined? Y* Y Y* Y 38 Table A-5 ID 2 University of Chicago http://www.uchicago.edu/adm /ura/guidelines/G200/223.html Table A-5 ID 8 University of Minnesota http://www1.umn.edu/regents/policie s/academic/IntellectualProperty.pdf Table A-5 ID 17 Brigham Young http://ipsinfo.byu.edu/ippolicy.htm Table A-5 ID19 Florida State University http://www.fsu.edu/Books/FacultyHandbook/Ch6/Ch6.19.html

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95 Table A-5 Universities with Pro University Copyright Ownership39 Questions Y= Yes N= No See footnote N/A=not able to determine by language used 2 8 17 19 Q13: Does policy address the issue of ownership based on use of university resources or not? Y Y Y Y Q14: Is there a provision for naming the university as owner if it initiates the work Y Y Y Y Q15: Does the faculty member retain ownership and copyrights if he/she is the creator of the work? Y Y Y N Q16: Does policy define copyright use? Y Y Y Y Q17: Is the language clear and free of legalese? N Y Y N Q18: Is there room for negotiations written into the policy? N N N N Q19: Does the policy “unbundle” the rights of copyright? N N N N Q20: Does the policy address “academic freedom” by name or definition? N N N N Q21: Does the author of the copyrighted material have the right to update the material unfettered by the university? N/A N N N Q22: Does the author of the work have control to limit use and changes to his/her original work? N/A N N N Q23: Does authors have control of licensing to other institutions other th an original university? N/A N N N Q24: Does policy address multiple authors issues in policy? N/A Y Y Y Q25: Are there definitio ns in place for all ownership forms? N/A Y N Y 39 Table A-5 ID 2 University of Chicago http://www.uchicago.edu/adm /ura/guidelines/G200/223.html Table A-5 ID 8 University of Minnesota http://www1.umn.edu/regents/policie s/academic/IntellectualProperty.pdf Table A-5 ID 17 Brigham Young http://ipsinfo.byu.edu/ippolicy.htm Table A-5 ID19 Florida State University http://www.fsu.edu/Books/FacultyHandbook/Ch6/Ch6.19.html

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96 Table A-6 Universities with Pro Faculty Copyright Ownership N*40 Questions Y= Yes N= No See Notes N* N/A=not able to determine by language used 1 6 9 10 12 14 15 16 20 21 Q1: Does copyright policy exist? Y Y Y Y Y Y Y Y Y Y Q2: Does copyright policy address online courses or digital courses directly? N N Y Y Y Y N N Y N 40 Table A-6 ID 1 University of Alabama http://www.ua.edu/academic /facsen/handbook/append-h.html Table A-6 ID 6 University of Indiana http://www.indiana.edu/~rugs/respol/intprop.html Table A-6 ID 9 University of North Texas http://www.unt.edu/planning/ UNT_Policy/volume3/16_1_1.html Table A-6 ID 10 San Diego University http://gra.sdsu.edu/dr a/Intell_Property_5-900_Final.htm Table A-6 ID 12 Stanford University http://www.stanford.edu/dept/DoR/rph/rphpdf/52.pdf Table A-6 ID 14 University of Texas System http://www.utexas.edu/academic/otl/policy.html Table A-6 ID 14 University of Texas System Plain English version. http://www.utexas.edu/academic /otl/PlainEnglishPolicy.html Table A-6 ID 14 University of Texas Sy stem Education materials (contracts) http://www.utsystem.edu/ogc/inte llectualproperty/edmatrls.htm Table A-6 ID 15 University of Wisconsin http://www.uwsa.edu/fadmin/gapp/gapp27.htm Table A-6 ID 16 University of Washington http://www.washington.edu/faculty/facsenate/handbook/04-05-07.html Table A-6 ID 20 University of North Carolina http://www.northcarolina.edu/legal/policymanual/500.2.pdf Table A-6 ID 21 WinstonSalem State University http://gorams.wssu.edu/intell ect/Approved%20Copyright%20policy.htm Notes* Y* indicates that while university clai ms works by faculty initially, under certain circumstances, faculty authors may retain ownership rights as defined by individual policies. N* indicates that while the university does not claims copyrights initially, it will claim copyright under certain conditions such as ex traordinary use of university resources, as defined by individual policies.

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97 Table A-6 Universities with Pro Faculty Copyright Ownership N* Questions Y= Yes N= No See Notes N* N/A=not able to determine by language used 1 6 9 10 12 14 15 16 20 21 Q3: Does separate policy related to copyright of online courses, distance education courses delivered via Internet exist? N N N N N N N N N N Q4: Does policy adhere to federal copyright laws? Y Y Y Y Y Y Y Y Y Y Q5: Does policy define copyright ownership related to online courses or courseware? Y N Y Y Y Y Y N Y Y Q6: Does policy define what works fall under copyrightable instructional materials? Y Y Y Y Y Y Y Y Y Y Q7: Does policy define ownership rights related traditional teaching materials? Y Y Y Y Y Y Y Y Y Y Q8: Does policy define copyright compensation? Y Y Y Y Y Y Y Y Y Y Q9: Does university assert ownership of faculty works? If so, are definitions provided to aid in understanding? N* N* N* N* N* N* N* N* N* N* Q10: Does university assert that faculty owns works produced? Y Y Y Y Y Y Y Y Y Y

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98 Table A-6 Universities with Pro Faculty Copyright Ownership N* Questions Y= Yes N= No See Notes N* N/A=not able to determine by language used 1 6 9 10 12 14 15 16 20 21 Q11: If university asserts that faculty owns works, is there a method in place for university use or university licensing? Y Y Y Y Y Y Y Y Y Y Q12: If university asserts ownership under certain conditions, are these conditions clearly defined? Y Y Y Y Y Y Y Y Y Y Q13: Does policy address the issue of ownership based on use of university resources or not? Y Y Y Y Y Y Y Y Y Y Q14: Is there a provision for naming the university as owner if it initiates the work. Y Y Y Y Y Y Y Y Y Y

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99 Q15: Does the faculty member retain ownership and copyrights if he/she is the creator of the work? Y Y Y Y Y Y Y Y Y Y Table A-6 Universities with Pro Faculty Copyright Ownership N* Questions Y= Yes N= No See Notes N* N/A=not able to determine by language used 1 6 9 10 12 14 15 16 20 21 Q16: Does policy define copyright use? Y Y Y Y Y Y Y Y Y Y Q17: Is the language clear and free of legalese? Y N Y Y Y Y Y Y Y Y Q18: Is there room for negotiations written into the policy? N/A N/ A Y Y Y Y Y N/A Y Y Q19: Does the policy “unbundle” the rights of copyright? N/A N/ A Y Y Y Y N/A N/A N/AN/ A Q20: Does the policy address “academic freedom” by name or definition? N/A N/ A Y Y Y Y N/A N/A N/AN/ A Q21: Does the author of the copyrighted material have the right to update the material unfettered by the university? Y Y Y Y Y Y Y Y Y Y Q22: Does the author of the work have control to limit use and changes to his/her original work? Y Y Y Y Y Y Y Y Y Y

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100 Q23: Does authors have control of licensing to other institutions other than original university? Y Y Y Y Y Y Y Y Y Y Table A-6 Universities with Pro Faculty Copyright Ownership N* Questions Y= Yes N= No See Notes N* N/A=not able to determine by language used 1 6 9 10 12 14 15 16 20 21 Q24: Does policy address multiple authors issues in policy? Y Y Y Y Y Y Y N/A Y Y Q25: Are there definitions in place for all ownership forms? N/A N Y Y Y Y Y N/A Y Y

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101 APPENDIX B Universities studied by Lape (1992) and Packard (2000) Boston University California Institute of Technology Carnegie-Mellon University Case Western Reserve University Colorado State University Columbia University Cornell University Duke University Georgia Institute of Technology Harvard University Howard University Indiana University at Bloomington Johns Hopkins University Louisiana State University Massachusetts Inst itute of Technology Michigan State University New Mexico State University New York University North Carolina State University Northwestern University Ohio State University Oregon State University Pennsylvania State University Princeton University Purdue University Rockefeller University Rutgers University Stanford University State University of New York at Stony Brook Texas A&M University University of Arizona University of California at Berkeley University of California at Davis University of California at Irvine University of California at Los Angeles University of California at San Diego University of California at San Francisco University of Chicago University of Cincinnati University of Colorado at Boulder University of Connecticut University of Florida University of Georgia

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102 APPENDIX B (continued) University of Hawaii at Manoa University of Illinois at Chicago University of Illinois at Urbana-Champaign University of Iowa University of Kentucky University of Maryland at College Park University of Miami University of Michigan at Ann Arbor University of Minnesota-Twin Cities University of Missouri at Columbia University of New Mexico University of North Carolina at Chapel Hill University of Pennsylvania University of Pittsburgh University of Rochester University of Southern California University of Tennessee at Knoxville University of Texas at Austin University of Utah University of Virginia University of Washington University of Wisconsin at Madison Virginia Polytechnic Institute and State University Vanderbilt University Washington University Yale University Yeshiva University (did not participate in Packard Study)

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103 APPENDIX C Consortium for Educational Technology in University Systems, (CETUS) Guidelines for Intellectual Property …. The Consortium for Educational Technol ogy in University Systems, (CETUS) www.cetus.org/index.html 13 offers the following guidelines for intell ectual property: “The management and administration of matters related to university contracts, policies, and guidelines which bear on the creation, ow nership, storage, and use of intellectual properties should: Foster the creation of th e best possible quality new intellectual properties so as to further the academic mission of higher education. Foster the dissemination of new knowl edge and the maintenance of high academic standards. Provide incentive for university faculty, sta ff, and students to fully participate in the use and creation of intellectual properties. Recognize that newly created intellectual properties in a university setting come in a wide variety of old and new types a nd arise in a wide va riety of specific contexts. Nonetheless, strong mutual in terests are shared among the university, the faculty, the staff, and the students in the appropriate allocation of the ownership rights associated with such intellectual properties.

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104 Appendix C (continued) Support the concept that the ownership of intellectual property rights is not necessarily an “all-or-nothi ng” proposition. Rather, the se t of rights that belongs to the owners of intellect ual properties may be allocat ed so as to optimally support the mutual interests of the univ ersity, faculty, staff, and students. Foster within the university community the continued collec tive and individual ability to access, acquire, a nd store information and works, to help scholars and students in the proper use and citation of the works of others, and to maintain coordination and contact with the worl d of publishers and other information providers. Appropriately adapt university contracts, pol icies, and guidelines so as to address the challenges and opportunities presente d as technologies an d cultures continue to evolve and affect the pract ices of higher education.” CETUS recommends the following: “1. Adopting written policy statements that establish a framework for addressing the ownership of diverse materials commonly creat ed on campus, including course materials, scholarly articles, multimedia projects, and distance-learning videotapes. 2. Adopting a set of general principles for determining ownership based on the three factors described in this booklet: creation, control, and compensation.

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105 Appendix C (continued) 3. Establishing a framework for allocating or “unbundling” rights associated with new works in order to make them most appropr iately available for teaching, learning, and research. 4. Providing standard agreement forms for th e university to enter into with faculty members and others in order to clarify ow nership of copyrights and the allocation of rights associated with specific projects. 5. Specifying in written agreements the pers ons who will own and manage certain rights associated with a project and the allocation of rights to others, pa rticularly rights of copying for teaching and study by colleagues and students at the author’s home university. 6. Encouraging authors to retain rights to fu ture uses of their works when entering into publishing agreements; in particular, authors should avoid giving all rights to publishers and should retain rights of future use fo r teaching and research by the author and by others at the author’s home uni versity and perhaps elsewhere. 7. Providing for easier and cl earer rights to use works he ld by the university and its faculty for the advancement of learning th roughout the domain of American higher education.” Consortium for Educational Technology for Univ ersity Systems (CETUS) “Ownership of New Works at the University : Unbundling of Rights and the Pursuit of Higher Learning.” 1997. http://www.cetus.org/ownership.pdf

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106 APPENDIX D 1940 Statement of Principles on Academic Freedom and Tenure with 1970 Interpretive Comments In 1940, following a series of joint confer ences begun in 1934, representatives of the American Association of Univ ersity Professors and of th e Association of American Colleges (now the Associati on of American Colleges and Universities) agreed upon a restatement of principles set forth in the 1925 Conference Statement on Academic Freedom and Tenure. This restatement is known to the profession as the 1940 Statement of Principles on Academic Freedom and Tenure. The 1940 Statement is printed below, followe d by Interpretive Comments as developed by representatives of the American Associ ation of University Professors and the Association of American Colleges in 1969. The governing bodies of the two associations, meeting respectively in November 1989 and January 1990, adopted several changes in language in order to remove gender-specifi c references from the original text. The purpose of this statement is to pr omote public understanding and support of academic freedom and tenure and agreement upon procedures to ensure them in colleges and universities. Inst itutions of higher education ar e conducted for the common good and not to further the interest of either the individual teacher1 or the institution as a whole. The common good depends upon the free search for truth and its free exposition. Academic freedom is essential to these purposes and applies to both teaching and research. Freedom in research is funda mental to the advancement of truth.

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107 APPENDIX D (continued) Academic freedom in its teaching aspect is f undamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning. It carries with it duties correlative with rights. [1]2 Tenure is a means to certain ends; specifically : (1) freedom of teaching and research and of extramural activities, and (2) a sufficient degree of economic security to make the profession attractive to me n and women of ability. Free dom and economic security, hence, tenure, are indispensable to the success of an institution in fulfilling its obligations to its students and to society. ACADEMIC FREEDOM a. Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequa te performance of their other academic duties; but research for pecuniary return should be based upon an understanding with th e authorities of the institution. b. Teachers are entitled to freedom in the cl assroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.[2] Limitations of academic freedom because of religious or other aims of the institution should be clea rly stated in writing at the time of the appointment.[3] c. College and university teachers are citi zens, members of a learned profession, and officers of an educational institution. When they speak or write acitizens,

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108 APPENDIX D (continued) d. they should be free from institutional cen sorship or discipline but their special position in the community imposes special obligations. e. As scholars and educational officers, they should remember that the public may judge their profession and their instit ution by their utterances. Hence they should at all times be accurate, should ex ercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not sp eaking for the institution.[4] 1940 INTERPRETATIONS At the conference of representatives of the American Association of University Professors and of the Association of American Colleges on November 7–8, 1940, the following interpretations of the 1940 Statement of Principles on Academic Freedom and Tenure were agreed upon: 1. That its operation should not be retroactive. 2. That all tenure claims of teachers appo inted prior to the endorsement should be determined in accordance with the principles set forth in the 1925 Conference Statement on Academic Freedom and Tenure. 3. If the administration of a college or university feels that a teacher has not observed the admonitions of paragraph (c) of the section on Academic Freedom and believes that the extramural utterances of th e teacher have been such as to raise grave doubts concerning the teacher’s f itness for his or her position, it may proceed to file charges under paragraph 4 of the section on Academic Tenure.

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109 APPENDIX D (continued) In pressing such chargesthe administration should remember that teachers are citizens and should be accorded the freedom of citizens. In such cases the administration must assume full responsibility, and the American A ssociation of University Professors and the Association of American Colleges ar e free to make an investigation. 1970 INTERPRETIVE COMMENTS Following extensive discussions on the 1940 Statement of Principles on Academic Freedom and Tenure with leading educational associations and with individual faculty members and administrators, a joint comm ittee of the AAUP and the Association of American Colleges met during 1969 to reevaluate this key policy statement. On the basis of the comments received, and the discussions that ensued, the joint committee felt the preferable approach was to formulate interp retations of the Statement in terms of the experience gained in implementing and applyi ng the Statement for over thirty years and of adapting it to current needs. The committee submitted to the two associa tions for their consideration the following “Interpretive Comments.” These interpreta tions were adopted by the Council of the American Association of University Profe ssors in April 1970 and endorsed by the Fiftysixth Annual Meeting as Association policy.

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110 APPENDIX D (continued) In the thirty years since their promulgati on, the principles of the 1940 Statement of Principles on Academic Freedom and Tenure have undergone a substantial amount of refinement. This has evolved through a va riety of processes, including customary acceptance, understandings mutually arrived at between institutions and professors or their representatives, investigations and reports by the American Association of University Professors, and formulations of st atements by that association either alone or in conjunction with the Associ ation of American Colleges. These comments represent the attempt of the two associati ons, as the original sponsor s of the 1940 Statement, to formulate the most important of these re finements. Their incorporation here as Interpretive Comments is base d upon the premise that the 19 40 Statement is not a static code but a fundamental document designed to set a framework of norms to guide adaptations to changing times and circumstances. Also, there have been relevant developmen ts in the law itself reflecting a growing insistence by the courts on due process with in the academic community which parallels the essential concepts of the 1940 Statement; par ticularly relevant is the identification by the Supreme Court of academic freedom as a right protected by the First Amendment. As the Supreme Court said in Keyishian v. Bo ard of Regents, 385 U.S. 589 (1967), “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.

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111 APPENDIX D (continued) That freedom is therefore a special concer n of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” The numbers refer to the designated portion of the 1940 Statement on which interpretive comment is made. 1.The Association of American Colleges and the American Association of University Professors have long recognized that membersh ip in the academic pr ofession carries with it special responsibilities. Both associations ei ther separately or join tly have consistently affirmed these responsibilities in major policy statements, providing guidance to professors in their utterances as citizens, in the exercise of thei r responsibilities to the institution and to students, and in their conduc t when resigning from their institution or when undertaking government-sponsored resear ch. Of particular relevance is the Statement on Professional Ethics adopted in 1966 as Asso ciation policy. (A revision, adopted in 1987, may be found in AAUP, Policy Documents and Reports, 9th ed. [Washington, D.C., 2001], 133–34.) 2.The intent of this statement is not to disc ourage what is “controversial.” Controversy is at the heart of the fr ee academic inquiry, which the entire statement is designed to foster. The passage serves to underscore the need fo r teachers to avoid persistently intruding material, which has no relation to their subject. 3. Most church-related institutions no longer need or desire the departure from the principle of academic freedom implied in the 1940 Statement, and we do not now endorse such a departure.

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112 APPENDIX D (continued) 4. This paragraph is the subj ect of an interpretation adopt ed by the sponsors of the 1940 Statement immediately following its endor sement, which reads as follows: If the administration of a college or univers ity feels that a teacher has not observed the admonitions of paragraph (c) of the secti on on Academic Freedom and believes that the extramural utterances of the teacher have been such as to raise grave doubts concerning the teacher’s fitness for his or her position, it may proceed to file charges under paragraph 4 of the section on Academic Tenure. In pressi ng such charges, the administration should remember that teachers are citizens and shoul d be accorded the freedom of citizens. In such cases the administration must assume full responsibility, and the American Association of University Prof essors and the Association of American Colleges are free to make an investigation. Paragraph (c) of the section on Academic Fr eedom in the 1940 Statement should also be interpreted in keeping with the 1964 “Committee A Statement on Extramural Utterances” (Policy Documents and Reports, 32) which states inter alia: “T he controlling principle is that a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates th e faculty member’s unfitness for his or her position. Extramural utterances rarely bear upon the faculty member’s fitness for the position. Moreover, a final decision should take into account the faculty member’s entire record as a teacher and scholar.” Paragraph 5 of the Statement on Professional Et hics also deals with the nature of the “special obligations” of the teacher The paragraph reads as follows:

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113 APPENDIX D (continued) As members of their communit y, professors have the rights and obligations of other citizens. Professors measure the urgency of other obligations in the light of their responsibilities to th eir subject, to their students, to their profession, and to their institution. When they speak or act as priv ate persons they avoid creating the impression of speaking or acting for their college or unive rsity. As citizens engaged in a profession that depends upon freedom for its health and integrity, professors have a particular obligation to promote conditions of free inqu iry and to further public understanding of academic freedom. Both the protection of academic freedom a nd the requirements of academic responsibility apply not only to the full-time probationary a nd the tenured teacher, but also to all others, such as part-time faculty and teaching assistan ts, who exercise teaching responsibilities. 5. The concept of “rank of full-time instructor or a higher rank” is in tended to include any person who teaches a full-time load rega rdless of the teacher’s specific title 6. In calling for an agreement “in writing” on the amount of credit given for a faculty member’s prior service at othe r institutions, the Statement furthers the general policy of full understanding by the professor of the term s and conditions of the appointment. It does not necessarily follow that a professor’s te nure rights have been violated because of the absence of a written agreement on this matte r. Nonetheless, especially because of the variation in permissible institutional pract ices, a written understa nding concerning these matters at the time of appointment is partic ularly appropriate and advantageous to both the individual and the institution

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114 APPENDIX D (continued) 7. The effect of this subparagraph is that a decision on tenure, favor able or unfavorable, must be made at least twelve months prior to the completion of the probationary period. If the decision is negative, the appointment for the following year becomes a terminal one. If the decision is affirmative, the provi sions in the 1940 Statement with respect to the termination of service of teachers or investigators after the expiration of a probationary period should apply from the da te when the favorable decision is made. The general principle of noti ce contained in this paragra ph is developed with greater specificity in the Standards for Notice of Nonreappointment, endorsed by the Fiftieth Annual Meeting of the American Associati on of University Professors (1964). These standards are: Notice of nonreappointment, or of intention not to recommend reappointment to the governing board, should be given in writing in accordance with the following standards: (a) Not later than March 1 of the first acad emic year of service, if the appointment expires at the end of that year; or, if a one-year appointment terminates during an academic year, at least three months in advance of its termination. (b) Not later than December 15 of the se cond academic year of service, if the appointment expires at the e nd of that year; or, if an initial two-year appointment terminates during an academic year, at least six months in advance of its termination. (c) At least twelve months before the expi ration of an appointment after two or more years in the institution. \

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115 APPENDIX D (continued) Other obligations, both of institutions and of individuals, are described in the Statement on Recruitment and Resignation of Faculty Memb ers, as endorsed by the Association of American Colleges and the American Associ ation of University Professors in 1961. 8. The freedom of probationary teachers is enhanced by the estab lishment of a regular procedure for the periodic evaluation and assessment of the teacher’s academic performance during probationary status. Pr ovision should be made for regularized procedures for the consideration of compla ints by probationary teachers that their academic freedom has been violated. One suggested procedure to serve these purposes is contained in the Recommended Institutional Regulations on Academic Freedom and Tenure prepared by the American Associa tion of University Professors. 9. A further specification of the academic due process to which the teacher is entitled under this paragraph is contained in the St atement on Procedural Standards in Faculty Dismissal Proceedings jointly approved by the Ameri can Association of University Professors and the Associati on of American Colleges in 1958. This interpretive document deals with the issue of suspension, ab out which the 1940 Statement is silent. The 1958 Statement provides: “Suspension of the faculty member during the proceedings is justified only if immediate harm to the f aculty member or others is threatened by the faculty member’s continuance. Unless legal c onsiderations forbid, any such suspension should be with pay.” A suspension which is not followed by either reinstatement or the opportunity for a hearing is in effect a summ ary dismissal in violation of academic due process.

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116 APPENDIX D (continued) The concept of “moral turpitude” identifies the exceptional case in which the professor may be denied a year’s teaching or pay in whol e or in part. The statement applies to that kind of behavior which goes beyond simply warranting discharge and is so utterly blameworthy as to make it inappropriate to re quire the offering of a year’s teaching or pay. The standard is not that the moral se nsibilities of persons in the particular community have been affronted. The sta ndard is behavior that would evoke condemnation by the academic community generally. Endnotes 1. The word “teacher” as used in this documen t is understood to include the investigator who is attached to an academic institution without teaching duties 2. Boldface numbers in brackets refer to Interpretive Comments which follow. • For a discussion of this question, see the “Report of the Special Committee on Academic Personnel Ineligible for Tenur e,” Policy Documents and Reports, 88–91. •• For a more detailed statement on this question, see “On Crediting Prior Service Elsewhere as Part of the Pr obationary Period,” ibid., 100–101. ENDORSERS Association of American Co lleges and Universities 1941 American Association of University Professors 1941 American Library Association (adapted for librarians) 1946 Association of American Law Schools 1946 American Political Science Association 1947 American Association of Colleges for Teacher Education 1950

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117 APPENDIX D (continued) American Association fo r Higher Education 1950 Eastern Psychological Association 1950 Southern Society for Philosophy and Psychology 1953 American Psychological Association 1961 American Historical Association 1961 Modern Language Association of America 1962 American Economic Association 1962 American Agricultural Economics Association 1962 Midwest Sociological Society 1963 Organization of American Historians 1963 American Philological Association 1963 American Council of Learned Societies 1963 Speech Communication Association 1963 American Sociological Association 1963 Southern Historical Association 1963 American Studies Association 1963 Association of American Geographers 1963 Southern Economic Association 1963 Classical Association of th e Middle West and South 1964 Southwestern Social Science Association 1964 Archaeological Institute of America 1964

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118 APPENDIX D (continued) Southern Management Association 1964 American Theatre Association 1964 South Central Modern Language Association 1964 Southwestern Philosophical Society 1964 Council of Independent Colleges 1965 Mathematical Association of America 1965 Arizona-Nevada Academy of Science 1965 American Risk and Insurance Association 1965 Academy of Management 1965 American Catholic Historical Association 1966 American Catholic Philo sophical Association 1966 Association for Educa tion in Journalism 1966 Western History Association 1966 Mountain-Plains Philoso phical Conference 1966 Society of American Archivists 1966 Southeastern Psychological Association 1966 Southern Speech Communication Association 1966 American Association for the A dvancement of Slavic Studies 1967 American Mathematical Society 1967 College Theology Society 1967 Council on Social Work Education 1967

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119 APPENDIX D (continued) American Association of Colleges of Pharmacy 1967 American Academy of Religion 1967 Association for the Sociology of Religion 1967 American Society of Journali sm School Administrators 1967 John Dewey Society 1967 South Atlantic Modern Language Association 1967 American Finance Association 1967 Association for Social Economics 1967 United Chapters of Phi Beta Kappa 1968 American Society of Christian Ethics 1968 American Association of Teachers of French 1968 Eastern Finance Association 1968 American Association for Chinese Studies 1968 American Society of Plant Physiologists 1968 University Film and Video Association 1968 American Dialect Society 1968 American Speech-Language-Hearing Association 1968 Association of Social and Behavioral Scientists 1968 College English Association 1968 National College Physical Edu cation Association for Men 1969 American Real Estate and Urban Economics Association 1969 History of Education Society 1969

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120 APPENDIX D (continued) Council for Philosophical Studies 1969 American Musicological Society 1969 American Association of Teachers of Spanish and Portuguese 1969 Texas Junior College Teachers Association 1970 College Art Association of America 1970 Society of Professors of Education 1970 American Anthropological Association 1970 Association of Theological Schools 1970 Association of Schools and Mass Communication of Journalism 1971 American Business Law Association 1971 American Council for the Arts 1972 New York State Mathematics Associ ation of Two-Year Colleges 1972 College Language Association 1973 Pennsylvania Historical Association 1973 Massachusetts Regional Community College Faculty Association 1973 American Philosophical Association••• 1974 ••• Endorsed by the Association’s Western Division in 1952, Eastern Division in 1953, and Pacific Division in 1962. American Classical League 1974 American Comparative Lite rature Association 1974 Rocky Mountain Modern Language Association 1974 Society of Architectur al Historians 1975

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121 APPENDIX D (continued) American Statistical Association 1975 American Folklore Society 1975 Association for Asian Studies 1975 Linguistic Society of America 1975 African Studies Association 1975 American Institute of Biological Sciences 1975 North American Conference on British Studies 1975 Sixteenth-Century Studies Conference 1975 Texas Association of College Teachers 1976 Society for Spanish and Port uguese Historical Studies 1976 Association for Jewish Studies 1976 Western Speech Communi cation Association 1976 Texas Association of Colleges for Teacher Education 1977 Metaphysical Society of America 1977 American Chemical Society 1977 Texas Library Association 1977 American Society for Legal History 1977 Iowa Higher Education Association 1977 American Physical Therapy Association 1979 North Central Sociological Association 1980 Dante Society of America 1980 Association for Communi cation Administration 1981

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122 APPENDIX D (continued) American Association of Physics Teachers 1982 Middle East Studies Association 1982 National Education Association 1985 American Institute of Chemists 1985 American Association of Teachers of German 1985 American Association of Teachers of Italian 1985 American Association for Applied Linguistics 1986 American Association of Teachers of Slavic and East European Languages 1986 American Association for Cancer Education 1986 American Society of Church History 1986 Oral History Association 1987 Society for French Historical Studies 1987 History of Science Society 1987 American Association of Ph armaceutical Scientists 1988 American Association fo r Clinical Chemistry 1988 Council for Chemical Research 1988 Association for the Study of Higher Education 1988 American Psychological Society 1989 University and College Labor Education Association 1989 Society for Neuroscience 1989 Renaissance Society of America 1989

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123 APPENDIX D (continued) Society of Biblical Literature 1989 National Science Teachers Association 1989 Medieval Academy of America 1990 American Society of Agronomy 1990 Crop Science Society of America 1990 Soil Science Society of America 1990 Society of Protozoologists 1990 Society for Ethnomusicology 1990 American Association of Physicists in Medicine 1990 Animal Behavior Society 1990 Illinois Community College Faculty Association 1990 American Society for Theatre Research 1990 National Council of Teachers of English 1991 Latin American Studies Association 1992 Society for Cinema Studies 1992 American Society for Eight eenth-Century Studies 1992 Council of Colleges of Arts and Sciences 1992 American Society for Aesthetics 1992 Association for the Advan cement of Baltic Studies 1994 American Council of Teachers of Russian 1994 Council of Teachers of Southeast Asian Languages 1994 American Association of Teachers of Arabic 1994

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124 APPENDIX D (continued) Association of Teachers of Japanese 1994 Academic Senate for Calif ornia Community Colleges 1996 Council of Academic Programs in Comm unication Sciences and Disorders 1996 Association for Women in Mathematics 1997 Philosophy of Time Society 1998 World Communication Association 1999 The Historical Society 1999 Association for Theatre in Higher Education 1999 National Association for Ethnic Studies 1999 Association of Ancient Historians 1999 American Culture Association 1999 American Conference for Irish Studies 1999 Society for Philosophy in the Contemporary World 1999 Eastern Communicatio n Association 1999 Association for Canadian Studi es in the United States 1999 American Association for the History of Medicine 2000 Missouri Association of Faculty Senates 2000 New England Histori cal Association 2001 (Updated 6/02) American Association of University Profe ssors, 1012 Fourteenth Street, NW, Suite #500; Washington, DC 20005 202-737-5900 Fax: 202-737-5526

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125 APPENDIX E American Association of University Pr ofessors Statement on Copyright The objective of copyright is, in the words of the U.S. Constitution, to “promote the progress of science and useful arts.” To achieve that objective, authors are given exclusive rights under the Copyright Act to re produce their works, to use them as the basis for derivative works, to disseminate th em to the public, and to perform and display them publicly. Institutions of higher learning in particular should interpret and apply the law of copyright so as to encourage the discovery of new knowledge and its dissemination to students, to the profession, a nd to the public. This mission is reflected in the 1940 Statement of Principles on Academic Freedom and Tenure : Institutions of higher educa tion are conducted for the common good and not to further the interest of either the indi vidual teacher or the instituti on as a whole. The common good depends upon the free search for truth and its free exposition. Academic Practice Within that tradition, it has been the prev ailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member's own initiative for traditional academic purposes. Examples include class notes and syllabi, books and articles, works of fiction and nonfiction, poems and dramatic works, musical and choreographic works, pict orial, graphic, and sculptural works, and educational software, commonly known as “courseware.” This practice has been followed for the most part, regardless of th e physical medium in wh ich these “traditional academic works” appear, that is, whether on pape r or in audiovisual or electronic form.

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126 APPENDIX E (continued) As will be developed below, this practice should therefore ordinarily apply to the development of courseware for use in programs of distance education. Unilateral Institutional Policies Some colleges and universities have promul gated policies, typically unenforced, that proclaim traditional academic works to be the property of the institution. Faculty handbooks, for example, sometimes declare that faculty members sha ll be regarded as having assigned their copyrights to the institution. The Copyri ght Act, however, explicitly requires that a tran sfer of copyright, or of any exclusive right (such as the exclusive right to publish), must be evid enced in writing and signed by the authortransferor. If the faculty member is indeed th e initial owner of copyr ight, then a unilateral institutional declaration cannot eff ect a transfer, nor is it likely that a valid transfer can be effected by the issuance of appointment le tters to new faculty members requiring, as a condition of employment, that they sign a f aculty handbook which purports to vest in the institution the ownership of all works created by the faculty member for an indefinite future. Other colleges and universities instead proc laim that traditional academic works are ““work-for-hire”,” with the consequence that the institution is regarded as the initial owner of copyright. This inst itutional claim is often stated to rest upon the use by the faculty member, in creating such works, of co llege or university resources such as office space and supplies, library facilities, ordina ry access to computers and networks, and salary.

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127 APPENDIX E (continued) The pertinent definition of “work-for-hire” is a work prepared by an “employee within the scope of his or her employment.” In th e typical work-for-hire situation, the content and purpose of the employee-prepared works are under the control and direction of the employer; the employee is accountable to the employer for the content and design of the work. In the case of traditional academic work s, however, the faculty member rather than the institution determines the subject matter, the intellectua l approach and direction, and the conclusions. This is the very essence of academic freedom. Were the institution to own the copyright in such works, under a th eory, it would have the powers, for example, to decide where the work is to be published, to edit and otherwise revise it, to prepare derivative works based thereon (such as translations, abridgments, and literary, musical, or artistic variations), an d indeed to censor and forbid dissemination of the work altogether. Such powers, so deeply inconsiste nt with fundamental principles of academic freedom, cannot rest with the institution. College or University Copyright Ownership Situations do arise, however, in which th e college or university may fairly claim ownership of, or an interest in, copyright in works created by faculty (or staff) members. Three general kinds of projects fall into this category: special works created in circumstances that may properly be regarded as “made for hire,” negotiated contractual transfers, and “joint works” as described in the Copyright Act.

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128 APPENDIX E (continued) “”. Although traditional academic work that is copyrightable-such as lecture notes and courseware, books, and articles--cannot normally be treated as “”, some works created by college or university faculty and staff me mbers do properly fall within that category, allowing the institution to claim copyright ownership. Wo rks created as a specific requirement of employment or as an assigned institutional duty that may, for example, be included in a written job descri ption or an employment agreem ent, may be fairly deemed “”. Even absent such prior written specifica tion, ownership will vest with the college or university in those cases in wh ich it provides the specific auth orization or supervision for the preparation of the work. Examples are repor ts prepared by a dean or by the chair or members of a faculty committee, or college pr omotional brochures prepared by a director of admissions. Some institutions appear to trea t course examinations as falling within this category, but the stronger case can be made fo r treating examinations as part of the faculty member's customary instructional ma terials, with copyright thus owned by the individual. The Copyright Act also defines as a “” certa in works that are commissioned from one who is not an employee but an “independent contractor.” The institution will own the copyright in such a commissioned work when the author is not a college or university employee, or when the author is such an employee but the work to be created falls outside the normal scope of that person's em ployment duties (such as a professor of art history commissioned by the institution under sp ecial contract to write a catalog for a campus art gallery).

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129 APPENDIX E (continued) In such situations, for the doctrine to apply there must be a written agreement so stating and signed by both parties; the work must also fall within a limited number of statutory categories, which include instructional text s, examinations, and contributions to a collective work. Contractual transfers. In situations in wh ich the copyright ownership is held by the faculty (or staff) member, it is possible for the individual to transfer the entire copyright, or a more limited license, to the institution or to a third party. As already noted, under the Copyright Act, a transfer of all of the copyright or of an exclusive right must be reflected in a signed document in order to be valid. When, for example, a work is prepared pursuant to a program of “sponsored rese arch” accompanied by a grant from a third party, a contract signed by the faculty member providing that copyright will be owned by the institution will be enforceable. Similarly, the college or university may reasonably request that the faculty memb er--when entering into an ag reement granting the copyright or publishing rights to a third pa rty--make efforts to reserve to the institution the right to use the work in its internally administered programs of teaching, research, and public service on a perpetual, royalty -free, nonexclusive basis. Joint Works. Under certain circumstances, two or more persons may share copyright ownership of a work, notably when it is a “joint work.” The most familiar example of a joint work is a book or article written, fully collaborativel y, by two academic colleagues. Each is said to be a “co-owner” of the copyr ight, with each having al l the usual rights of the copyright owner (i. e., to license others to publish, to distribut e to the public, to translate, and the like) provided that any income from such uses is shared with the other.

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130 APPENDIX E (continued) In rare situations, an example of which is discussed immediately below, it may be proper to treat a work as a product of the joint auth orship of the faculty member and his or her institution, so that both have a shared interest in the copyright. New Instructional Technologies The development of new instru ctional technologies has led to some uncertainties with regard to the respective rights of the institu tion and its faculty members. For example, courseware prepared for programs of dist ance education will typically incorporate instructional content authored, and presente d, by faculty members; but the college or university may contribute specialized services and facilities to th e production of the courseware that go beyond what is traditiona lly provided to faculty members generally in the preparation of their cour se materials. On the one hand, the institution may simply supply “delivery mechanisms,” such as vide otaping, editing, and marketing services; in such a situation, it is very unlikely that the institution wi ll be regarded as having contributed the kind of “aut horship” that is necessary for a “joint work” that automatically entitles it to a share in the copyright ownership. On the other hand, the institution may, through its admini strators and staff, effectively determine or contribute to such detailed matters as substantive coverage creative graphic elements, and the like; in such a situation, the institution has a stronger claim to co-ownership rights.

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131 APPENDIX E (continued) Ownership, Control, Use, and Compensation: The Need for Informed Allocation of Rights Given the varying roles possibly played by the institution and the faculty member, and the nascent state of distance-education program s and technologies, it is not likely that a single principle of law can clearly allocate c opyright ownership intere sts in all cases. In some instances, the legal rules may warrant th e conclusion that the college or university is a “joint author”; in other instances, that it should be compensated with royalties commensurate with its investment; and in yet others, that it has some sort of implied royalty-free “license to use” the copyrighted wor k. It is therefore useful for the respective rights of individual faculty members and the institution-concerning ownership, control, use, and compensation to be negotiated in a dvance, and reduced to a written agreement. Although the need for contract ual arrangements has become more pressing with the advent of new instructional technologies, such arrangements should be considered even with respect to the more traditional forms of authorship when the institution seeks to depart from the norm of faculty copyright ownership. An alternative format, perhaps somewhat less desirable-because less likel y to be fully known to and appreciated by individual faculty members-would be detailed and explicit institutional regulations dealing with a variety of pert inent issues, subject to the strictures noted above concerning copyright transfers. Such regulations should of course give great we ight to the views of the faculty, and may be reflected either in widely available institutional policy documents or in collective bargaining agreements.

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132 APPENDIX E (continued) Whoever owns the copyright, the institution may reasonably require reimbursement for any unusual financial or technical support. Th at reimbursement might take the form of future royalties or a nonexcl usive, royalty-free license to use the work for internal educational and administrative purposes. Conversely, where th e institution holds all or part of the copyright, the faculty member shoul d, at a minimum, retain the right to take credit for creative contributions, to reprodu ce the work for his or her instructional purposes, and to incorporate the work in futu re scholarly works authored by that faculty member. In the context of distance-education courseware, the faculty member should also be given rights in connection with its futu re uses, not only through compensation but also through the right of “first refu sal” in making new versions or at least the right to be consulted in good faith on reuse and revisions. -------------------------------------------------------------------American Association of University Profe ssors, 1012 Fourteenth Street, NW, Suite #500; Washington, DC 20005 202-737-5900 Fax: 202-737-5526

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133 APPENDIX F The following is the Draft Recommendations Stevens Institute of Technology Web-Based Course Intellectual Prop erty Rights in its entirety 1. Preamble It is proposed that contracts, policies, a nd guidelines which bear on creation, ownership, storage, and use of intellectual properties of Web-based courses: a. Foster the creation of the be st possible Web-based courses; b. Foster dissemination of new knowledge in maintaining high academic standards; c. Provide incentives for various constituencies of the Institute to participate fully in the use and creation of Web-based courses; d. Recognize that the creation and disseminatio n of Web-based courses come in a wide variety of contexts; e. Support the concept that ownership of th e intellectual property rights in Web-based courses is not necessarily an ''all-or-nothing '' proposition; rather, rights that belong to owners of intellectual properties may be a llocated to support mutual interests of the Institute and its various constituencies; f. Foster within the Institute community collective and individual ability to access, acquire, and store information and works, to help scholars and stude nts in the proper use and citation of works of others, and to main tain coordination and c ontact with publishers, software vendors, and othe r information providers; g. Adapt contracts, policies, and guidelines appropriately to a ddress challenges and opportunities presented as t echnologies and cultures c ontinue to evolve; and h. Operate under a “policy framework” in wh ich negotiations proceed in good faith under a limited number of “model” agreements.

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134 APPENDIX F (continued) 2. Definitions and Distinctions To implement effective and fair intellectual property rights policy for Web-based courses, these distinctions and definitions are proposed: a. “Customary” and “Extraordinary.” (i) “Customary” conditions appl y, but are not necessarily limited to, situations in which faculty is provided with normal support, such as standard office and laboratory space, library facilities, ordinary access to comput ers and networks, or salary. Page 2. Webbased Course Intellectual Propert y Rights Draft Recommendations (ii) “Extraordinary” conditions apply, but ar e not necessarily limited to, situations in which substantial use of specialized or unique staff, facilities and equipment or other special subventions or compensa tion is provided by the Institute to the faculty to create online courses. Under “Extraordinary” condition s, faculty enter into contracts with the Institute. b. “Intellectual Content” and “Commercialization.” (i) “Intellectual Content” refers to material contained within a course; namely, syllabi, lecture notes, bibliographies, readings, ex aminations, and other elements created by faculty. (ii) “Commercialization” cove rs activities such as marke ting, distribution, dissemination, licensing, and institutional management, among other services provided by the Institute or other entities. c. “Supplementary” a nd “Entirely Online.” (i) “Supplementary” refers to Web-based course modules created by faculty to supplement conventional classroom teaching.

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135 APPENDIX F (continued) (ii) “Entirely Online” are courses delivered to distance-learning stude nts entirely over the Web. d. “Development” and “Teaching.” With respect to Entirely Online Web-based courses, faculty engage in two distinct activities: (i) “Development” refers to creation of online syllabi, l ecture notes, bibliographies, readings, examinations, and other elements in advance of instruction. The individual (or individuals jointly) engaged in thes e activities is called “Developer.” (ii) “Teaching” refers to the activity in whic h faculty instructs distance-learning students Entirely Online. The individual (or individuals jointly) engaged in this activity is called the “Teacher” or “Instructor.” Some “Development” activities may continue during delivery of an Entirely Online Web-based course. (iii) It is recommended that faculty be compensated separately for Development and Teaching. e. “Copyright Ownership” and “Transfer of Copyright.” (i) Under Extraordinary conditions, it is proposed that when Developer creates an Entirely Online course, Developer assumes “Copyright Ownership” and it is further suggested that Developer “Transfers Copyri ght” to the Institute for Commercialization. (ii) It is also proposed that when faculty create Web-based Supplementary modules for conventional classroom teaching, Copyright rest with the faculty member, without Transferring Copyright. 3. Concepts a. Faculty Oversight.

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136 APPENDIX F (continued) In order to assure high quality Web-based cour ses, standard faculty processes are to be applied to review and approve new (or suffi ciently different) Entir ely Online Web-based courses. b. Portability. Model Agreements may contain these elements: (i) Faculty members are free to use their Supplementary Web-based course materials at other institutions without the Institute's approval. (ii) Entirely Online Web-based courses Developed at Steven s, created under Extraordinary conditions, may not be offered at other institutions without the Institute's prior approval. (iii) Negotiated licensing fees may apply to the other institutions when a former faculty member teaches Entirely Online Web-ba sed courses Developed at Stevens under Extraordinary conditions. c. “Unbundling” Intellectual Property Rights. (i) Developer's Right of First Re fusal. In the event the Institu te wishes to offer a course Developed by a Full-time faculty member under Extraordinary conditions, it is recommended that Developer be given the “right of first refusal” to teach the course. In the event Developer fails to teach the course in a mutually agreed schedule, the Institute may offer the course to another Teacher. The In stitute may wish not to offer this right to Part-time faculty course Developers.

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137 APPENDIX F (continued) (ii) The Institute's and Developer's Licensi ng Rights. It is recomm ended that when the Institute licenses Entirely Online Web-base d courses to third parties-such as other educational institutions, publishers, distri butors, information providers, scholarly societies, corporations, a nd other commercial and nonprofit entities-Developer and the Institute may share the proceeds. It is also recommended that when the Institute and Developer agree to have an Entirely Online course taught by another Teacher, Developer may receive a percentage of receipts afte r the new Teacher's compensation has been recovered by the Institute. (iii) Developer's Scholarly Rights. It is reco mmended that Developers be given the right, without requesting permission from the Institu te, to use Intellectua l Content from their Entirely Online Web-based courses-even t hose created under Extrao rdinary conditions-in scholarly contributions to books, articles, c onventional courses, seminars, lectures, and similar scholarly activities in print and in pers on. It is also proposed that without seeking permission from the Institute, the same righ t be given to facult y to use Intellectual Content from Web-based material prepared as Supplementary to conventional Web-based courses. (iv) The Institute's Commercial Rights. It is recommended th at the Institute be given the right to Commercialize and License Entirely Online Webbased courses created under extraordinary conditions. In the event the Institute fails to Co mmercialize or License such courses in a mutually agreed sc hedule, such rights may revert to Developer. It is also proposed that the Institute prov ide Developer with periodic re ports covering the extent of their courses that have been Commercialized and Licensed, as well as compensation that may be due Developer from such Commercialization and Licensing.

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138 APPENDIX F (continued) In the event compensation is due Developer, it is recommended that the Institute pay Developer earned compensation in a timely fashion. (i) The Institute's Digital and Other Electronic Rights. It is recommended that rights to derivative digital and electron ic works-such as televisi on, film, video, CD-ROM, DVD, computer disc, audio, and other recordings derived from Entirely Online Web-based courses, created under Extraordin ary conditions-rest with the Inst itute. It is also proposed that, in the event the Institute fails to exploit such rights in a mutually agreed schedule, such rights revert to Developer. Developer may seek permission from the Institute to use these rights in connection with his or her ow n scholarly activities; in which case, its is recommended that the Institute not unreasonabl y withhold them. It is also recommended that the Institute provide Deve loper with periodic reports of the extent of courses his or her Commercialized and Licensed as well as pay any compensation that may be due Developer from Commercia lization and Licensing in a timely fashion. (ii) Rights Accorded Full-time and Part-time Faculty. It is proposed that the Institute provide full intellectual property rights to Fu ll-time faculty. Limited intellectual property rights may be accorded Part-time faculty. 4. Model Agreements

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139 APPENDIX F (continued) Should these Policy Recommendations be approved, it is proposed that Model Agreements be created to establish contra ctual relations between the faculty and the Institute bearing on Development, Teaching, and dissemination of Entirely Online Webbased courses. No new contractual arrangem ents need be introduced for Supplementary Web-based courses, inasmuch as traditional academic practice already covers such situations. It is recommended that Model Agreements incorporate distinctions and definitions proposed; that faculty be compensated separa tely for Developing a nd Teaching; that the Institute may elect to provide Full-time faculty greater right s in courses than it does to Part-time faculty; and that Developers assume Copyright and Transfer those rights to the Institute for Commercializati on. It is also recommended th at the portability section recommended be introduced in all Model Agreements. The Options outlined are merely suggestions for a variety of contractual terms that may be negotiated. Other permutations may be introduced. Also note that items outlined under each Option are not fixed. Terms from one Option may be introduced into other Model Agreements. Option A 1. Licensing: Institute and Developer share pr oceeds equally, less administrative charges. 2. Institute's Own Use: Developer receives 10% of proceeds from course taught by other faculty, less other Teacher's compensation and administrative charges. 3. Reversion of Rights for Failure of Institute to Commerci alize: 3 years. 4. Duration of Agreement: 5 years.

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140 APPENDIX F (continued) Option B 1. Licensing: Institute receive s 60%; Developer 40% of pr oceeds, less administrative charges. 2. Institute's Own Use: Developer r eceives 5% of proceeds from course taught by other faculty, less other Teacher's comp ensation and administrative charges. 3. Reversion of Rights for Failure of Institute to Commercialize: 4 years. 4. Duration of Agreement: 6 years. Option C 1. Licensing: Institute receive s 40%; Developer 60% of pr oceeds, less administrative charges. 1 Institute's Own Use: Developer r eceives 15% of proceeds from course taught by other faculty, less other Teacher's comp ensation and administrative charges. 2 Reversion of Rights for Failure of Institute to Commercialize: 2 years. 3 Duration of Agreement: 3 years. Source: Prepared by Robert Ubell, October 15, 1999, on behalf of the Ad Hoc Intellectual Property Rights Committee.