* Intellectual Property: Who owns what we think, say, and propose online? For example, eCollege – the CMS used by CSU-Hayward, states at the bottom of each screen, "All course content is copyrighted by California State Hayward. The delivery system is copyrighted by eCollege." Does that mean they own the information posted in the threads. If one of us wanted to write a magazine or journal piece about working online with Tony Bates, could we?

-- Anonymous, February 11, 2001

Answers

Dear Dr. Bates, In Managing Technological Change you point out that copyright law involving digital media remains unclear. In a time of 'untested confusion' regarding copyright and online learning you predict expensive litigation that will surely land in the Supreme Court. Will the Napster case be the vehicle to 'rewrite copyright history'? Some say the Napster is an easy target for the music industry that wants to send a message to 50 million users who are downloading pirated music.

So some questions:

How does U.S. copyright law effect Canada and the World?

Is downloading a single copy of anything a fair use violation?

Does password protection on an educational site show a good faith effort to protect copyright?

How many educators who decry the Napster user are knocking off a class set of articles on the Xerox without a second thought?

Finally, I can't help but notice your email address. Are you a music lover? 8)

Dennis O'Connor Lake Tahoe

-- Anonymous, February 14, 2001

Mario, your MTV insights made me picture the next generation of kids jogging down the trail with an MP3 player stuck in their ear listening to chunks of the best online learning while they ran! Imagine 50 million users downloading royalty paying lectures or chipping in a nickle so they could contribute their 'two bits'! 8)

-- Anonymous, February 14, 2001

Dr. Bates and classmates, As Dr. Bates pointed out in his response, he's no lawyer. Something I think we should all practice saying whenever we discuss legal matters involving online teaching and learning.

However, I know a lawyer who is also an adept on line teacher. Her name is Deb Quentel. Deb and I have worked together teaching online at Connected University. Deb is a veteran of the UCLA online program and is currently teaching (both face to face and online)at a law school in the Chicago area. I've asked her to drop by and offer her special insights into the areas of intellectual property and copyright.

"Cybertiming" can be tricky, but with luck she'll login tonight!

-- Anonymous, February 15, 2001

Deb raises excellent issues. Thank you for helping us think this way. I have a background as a freelance writer. This colors my outlook on the entire issue. I instinctively think of my self as an independent contractor. I'm always very aware of the 'work for hire' clauses in any contracts I sign. In selling writing I always stipulate First North American Serial Rights-- and depending on the situation I'll negotiate for further rights or turn down the assignment if the rights are (wrong).

It seems to be that the best way to protect your intellectual product is to use your own copyrighted material (books, articles, etc) as part of your classes. Of course I now have to create the stuff and have a solid up front agreement with my employer of the moment as to who owns what.

Regardless of the details, AWARENESS of these issues is so important. This discussion has certainly raised our awareness.

-- Anonymous, February 19, 2001

On behalf of the online teachers and learners at Cal-State Hayward, I want to close this discussion by thanking Dr. Tony Bates and Deb Quentel, Esq. for their time, attention, and ideas. We Are grateful!

Dennis O'Connor Moderator

-- Anonymous, February 19, 2001

There are different copyright laws in Canada and the USA. However, my understanding is that if you work on a regular salary for an organization, whatever you create as part of your work will normally belong to your employer, unless there is a separate agreement on intellectual property, perhaps negotiated as part of a bargaining process.

In the past universities have allowed faculty to publish books, or make television programs for external clients, for several reasons. First, it is a less expensive way of keeping top quality professors than paying them a higher salary. Second, publication brings intellectual prestige not only to the professor but also to the institution. Third, often the bulk of a book may be written outside normal working hours. Fourthly, and this for me is a critical reason, nearly all the work for a book is done individually by the professor without extra cost to the employer (although there are substantial costs for the publisher, which is why an author is lucky to get 15% royalties).

However, these conditions do not always or even usually apply to the development of multimedia teaching materials. These are increasingly a core part of a professor's regular day-to-day teaching activities. They usually need considerable investment by the employer to enable their development and maintenance. Often other creative people, such as graphics artists or web designers, are also involved in the development. Lastly, because of the relatively high institutional investment in such material, a university will want to ensure that the materials are used even if a professor leaves, dies or changes his or her mind. This is why many universities wish to own the rights of such material.

There is a difference though between ownership and reward. A fair employer, while requiring ownership, should also ensure that those who helped develop the materials should benefit from any gains made from that material. Therefore there should be copyright ownership and revenue sharing agreements in place before any multimedia materials requiring substantial time and investment are developed.

There is also a difference between ownership of intellectual property as distinct from the physical medium that represents that knowledge. Thus the content of the web site, in terms of ideas or concepts represented there, is the intellectual property of the creator. The Web site, though., i.e. the sum of the ideas, the graphics, the url, etc., belongs to the university. This means that a professor can leave the university and take her ideas with her, and use them in another context, but not the Web site. This incidentally is what happens when you write a book. The book is the copyright of the publisher; the ideas though belong to the author.

For most professors, though, and for most technology-based learning, this is indeed an academic question. An individual professor working on her own to develop her own web site to support her teaching is not going to get rich, even if she owns the copyright of the material on the site.

In my view, students do own what they post in the threads, in the sense that other people cannot just take what has been posted and use this without permission (although the fair use rules, allowing short quotations without permission, would still apply).. There is case law from textual documents which clearly protects research students for instance from being exploited by their supervisors.

If you wanted to write a magazine article or a journal piece about your experience of working online with me, yes of course, you could. What you could not do though is take all (or any part) of this course, copy it, then enrol your own students, and charge them a fee to study it.

Lastly, I am not a lawyer - so take what I say as a personal opinion which could be wrong! Indeed, I hope some of you may want to challenge what I have just written.

-- Anonymous, February 13, 2001

Hola Dr. Bates – It is an honor to “converse” with you

On page 107 of your book in the section titled " Intellectual Property, Copyright and Revenue Generation" you discuss those issues around digital materials. How do you feel about a "Record Label" type of infrastructure for revenue generation? The creator(s) of the digital material would be considered the artists and the college or institute would be considered the record company. The college would then have the rights to shop the digital material around and lease/sell it. Then everyone would get a "cut" of the profit. The college for producing the material, the department for managing the artist and the instructor(s) for developing the material; theoretically, the better digital material should rise to the top because of good revues.

Sorry, but I’m from the MTV generation :)

Thank You for Your Time – Mario :)

-- Anonymous, February 14, 2001

Hi Folks, Dennis O'Connor invited me to jump in to this discussion and to offer some perspective from the legal side. I was privileged to work with Dennis, as his TA, in a course offered through Connected University. I'm honored to be part of this discussion. I think online teaching is an area that is going to push the limits of the law and even change the law.

As Dennis has foreshadowed, I am an attorney. And like any attorney, I must give disclaimers. I'm not your attorney; I'm not giving you legal advice. I am discussing theory and general concepts of IP law. If you want specific legal advice or answers to specific questions, you should consult an attorney in your own state.

That said -- let's talk concepts....

Dennis, posed the question "is downloading one copy fair use" (I paraphrase). Interesting question.

Fair use in the general population is the doctrine relied on to justify any copying. I think there's a myth that copying is OK because of fair use. In fact, fair use is more narrowly drawn in the Copyright Act. And, here's a "You want to be a millionaire" factoid -- It is also the single most written about principle in copyright law. So determining answers isn't crystal clear.

What is fair use? It's an attempt to draw a balance between the temporary monopoly granted to authors and the right of the public to be able to use/enjoy/understand the work. One of the goals of the fair use statute is primarily concered with allowing criticism to take place. How can I review or comment on your article if I can't quote from it? Sounds logical, right?

And, what about teaching. The preamble to the statute even suggests it's OK to make multiple copies for classroom use. (What's a "classroom" these days?) There are also some regulations in which tell teachers how many copies of how many works are permitted. And, what's allowed for one semester shouldn't be permitted for a second. So sometimes it's fair use and sometimes it isn't -- confusing, right.

OK, but how much can I take? What if I take it all? What if I take what courts call the "heart" of the matter? Coneptuallt a small but intregal part of the whole. As you can see, I'm drawing a continuum.

Before we go any further - let's consider the statute itself. I'll paraphrase here, but the fair use statute sets out a 4 part test to determine if a use is fair (permitted) or unfair (and thus copyright infringement). You see, fair use is what's called an affirmative defense. Basically, you're saying "yes, I took the last slice of pizza from the fridge, but I had a darn good reason." Fair use is that reason. And, if you succeed with a fair use claim, the court has bought your reason. If you lose - then the court has said your reason did not justify your action.

So our 4 factors: paraphrased from 17 United States Code section 107 -- and more continuums here... 1. What's the purpose of your use? Is it for a commercial purpose (not so good) or an educational use (better)? 2. What's the nature of the work? Here, the continuum is sort of one of uniqueness. The more creative the work the worse for you as the copier. 3. What's the "amount and substantiality" you took? The more you take the less likely you'll succeed in claiming fair use. 4. What's the effect of your use on the "potential market" -- wow! potential market. Do we protect economic rights in this country, or what! How do you define the market? This often tips the decision.

And here's a zinger -- courts can weigh these factors any way they want.

So, back to Dennis' query - can you take it all and claim fair use. Probably not. The trick is figuring out how much you can take and still claim fair use. And, that's a hard question.

All right -- this post went on a bit longer than I expected. If you're still with me - congratulations.

I'll try and get to some of the other issues later this week.

Deb Quentel Chicago.

-- Anonymous, February 16, 2001

Deb, thanks for the specifics on fair use. I appreciate your taking the time to share your expertise. I can't say things are crystal clear, but now at least I know I am not alone!

This passage really caught my eye,"And, what about teaching. The preamble to the statute even suggests it's OK to make multiple copies for classroom use. (What's a "classroom" these days?) There are also some regulations which tell teachers how many copies of how many works are permitted. And, what's allowed for one semester shouldn't be permitted for a second. So sometimes it's fair use and sometimes it isn't -- confusing, right."

I was under the impression that instructors were breaking the law (all the time) by photocopying articles for their classes. I suppose if the instructor does it year after year rather than ordering a text is just isn't fair is it?

-- Anonymous, February 16, 2001

Hi Deb, thanks for joining us. I think we all have concerns mostly about content in online courses and as you say, courts can interpret cases as they see fit. There is a lot of debate about copyright and IP on the internet and how it differs from current regs. Some say the law applies and some say it doesn't.

In a hypothetical case in which an instructor takes a pre-written syllabus that accompanies a text that has been used in traditional courses in the past, then transfers that course to an online format, I would assume that is no different from writing lesson plans for a traditional course. Lesson plans are changed with every class and, at least in my college, are shared among instructors by choice. Can the instructor (or any instructor) use the "lesson plans" and organization of information from this online course at another college that uses the same text?

Another hypothetical case -- an instructor writes a course, uses original content, uses internet webpages for further content and reading, has no textbook, and uses a personal webpage to do all of this. The instructor contracts with a private education business to market the course to colleges. The college and the company partner to offer the course for credit. From that point forward, the instructor teaches his/her course. Who owns this course?

If, taking it one step further, the instructor writes the content, the company provides the web designers and platform, and the instructor does nothing but write the content and teach the course, who then owns the course?

I realize you are not giving legal advice :) Just best guess in hypothetical situations. Thanks again for your time. Hope you enjoy your visit here :)

-- Anonymous, February 16, 2001

Deb, thanks for joining us.

I've had the opportunity to hear Ken Solomon out of D.C. give a couple of presentations on IP. What he said in regards to the examples you've given here, is that one can not use something that is the heart of what of what is being taken. For example, I -- as an educator, for educational purposes, can't really use the film clips that show the following "Frankly, Charlotte, I don't give a damn." Or, "Show me the Money!" because both films are so strongly associated with those phrases. If I remember correctly, I can use the whole film, but not the phrases by themselves.

Another point I recall him making, is that we can not teach a course and use the same film, for example, for more than a year without getting specific permission to do so.

-- Anonymous, February 16, 2001

Being in the online media publishing business, the amount of copyright permissions I need to get everyday is astounding. I find it simple and very quick, often the next day, through email...if you have the author's personal email address and don't have to go through publishing houses, major newspaper sources etc... (Can't imagine what this was like before this technology!)

The thousands of authors I have been in communication with are honored and very excited to have their work published and used for educational purposes. The relationship usually continues with more volunteered writings and partial works and from there many times a continuing friendship online. So, notifying the author is a common courtesy and a reciprocal respect for their efforts and more often a pleasure. Now I do it all the time, no matter what the law.

-- Anonymous, February 16, 2001

Dennis, OK, for those of you just joining us or for those of you who somehow missed my lenghy disclaimer in my past post -- please remember I'm not giving you legal advice. Only your own attorney can do that. We're talking in generalities here.

Dennis, you caught my sentence "[t]here are also some regulations which tell teachers how many copies of how many works are permitted. And, what's allowed for one semester shouldn't be permitted for a second. So sometimes it's fair use and sometimes it isn't -- confusing, right."

I can see why that statement caught your eye! You might not always be breaking the law - it depends on what you're doing. And, what's the distribution - Paper to a class or online. And if online, is the site password protected or open to the world?

The Copyright Office addressed this and related questions in a "white paper" entitled U.S. Copyright Office's Report on Copyright and Digital Distance Education. You can find it at http://www.loc.gov/copyright/disted/ -- or order a copy from the Government Printing Office. It's a huge document. But a fascinating read, IMHO.

In addition, The Copyright Office has a number of great publications geared toward the lay person that are intended to clarify and give guidance to all who come. In general, look at http://www.loc.gov/copyright/ Follow the links under "Publications" (on the right of the screen) to "Information Circulars."

And eventually, you'll get to the brochure entitled "Reproductions of Copyrighted Works by Educators and Librarians" - it's a bit lengthy, but there's a nice summary of the guidelines designed to create a "safe harbor" for educators. You may want to take a detour on the circulars dealing with Fair Use and Work for Hire. Both topics, various posts have asked about.

You're right Dennis, I wouldn't want to be copying materials year after year for my class. Datta raised a great point. With the speed and ease on contacting folks these days, it's both a courtesy and places you well within the law to ask first.

Deb Chicago.

-- Anonymous, February 16, 2001

Deb, I think that we all appreciate your informed contribution to this debate (honest, I won't mention the term a*v*c* :)).

I suppose, as we have gathered, the wisest dictum regarding avoiding breaches of copyright is to take nothing for granted. Always explain, check and recheck. Otherwise it could be costly. Of course, we've been mainly talking about authors up until now and online authors at that. When you come to the use of sound(s), photographs, cartoons, diagrams and illustrations it can become more difficult to find out the name of the originator if an obvious credit has been ommitted. There's also the issue - which I feel that we haven't yet touched on - of how far the originator can claim that you used his/her visual/audio even if you've significantly transformed the original into something else.

The whole procedure becomes an even more tortuous, in my experience, when you're trying to quote from or use material that's only appeared in printed/offline form and maybe published by a organization or corporation that's not used to handling such requests or maybe one that so vast that the right hand does know what the left hand does. It can take weeks especially if it's passed "upstairs", moved around and then eventually the only person who can take the decision is away on extended vacation! Having said that, I've found that the construction of a well thought out pro-forma that provides as much information as possible about the material's intended use does help simplify the process and the subsequent processing.

Geoff

-- Anonymous, February 16, 2001

OK, I think you all know the disclaimer that goes here! I'm an attorney, but I'm not your attorney and this isn't legal advice.

Geoff raised some good points about the troubles of getting permission. This isn't always easy. Sometimes the publisher of the work can help find the author, or even give permission.

Also, the Copyright Clearance Ceneter works as a clearinhouse to simplify the acquisition of permission for many journals, and such. As to music rights, I'd try the music permission houses, such as Harry Fox Agency. More links about permissions for music can be found at the web sites for ASCAP, BMI, and SESAC -- the big three music licensing houses.

Deb-- Chicago

-- Anonymous, February 17, 2001

Folks, As in my other posts -- here's the short form disclaimer -- I'm still an attorney, and I'm still not giving you legal advice, because I am not your attorney. Take these words as information. Nothing more.

Leslie asked a series of hypos. In one she asked: "In a hypothetical case in which an instructor takes a pre-written syllabus that accompanies a text that has been used in traditional courses in the past, then transfers that course to an online format, I would assume that is no different from writing lesson plans for a traditional course. Lesson plans are changed with every class and, at least in my college, are shared among instructors by choice. Can the instructor (or any instructor) use the "lesson plans" and organization of information from this online course at another college that uses the same text?"

A couple of other questions would have to be answered before we could state with certainty that the teacher owned the course. 1. Is there a written contract between the teacher and the school? And, does that contract cover ownership of the material? 2. Is the teacher an employee of the school, in which case the "work for hire" doctrine may factor in. Or, is the teacher an independent contractor? 3. Has the school a formal policy on ownership of IP? Is the teacher bound by the policy? 4. Who really created the underlying material? Was it created by a group? I wasn't clear about this. You can have joint ownership of copyright.

The hypo queried whether there was a difference between the materials created for the traditional class and the materials created for the online course. You're right -- there may be little difference between the materials. Although, there are probably some differences so as to avoid concepts such as "push technology". But assuming the materials are similar, the big difference is in how schools are treating faculty and the materials.

We all know this -- Before, schools were limited by class size in terms of how many students they could give you. Virtual class rooms have no space limitations. And, online courses don't necessarily need you (some would argue -- I think erroneously) in the same way a traditional class needs you.

Thus, schools, I think see the materials created first for their students as their property. They argue they paid you to create the materials. The fact that the online materials have a longer shelf life than your live lecture appeals to their sense of money.

That's why we're seeing this sudden interest in the course materials of faculty. It's easier for them to get me to teach the course online using your materials and be successful, than before, where I'd have to come into the classroom, prepare my own lectures and do all the work.

So, as an answer to Leslie's series of hypos -- without more information we still can't make an accurate guess.

Deb -- Chicago.

-- Anonymous, February 17, 2001