Holly Denney
OMDE 614 - Assignment 2
October 12, 2001
University of North Texas
Distributed Learning Copyright Policy Critique
The University of North Texas (UNT) has a comprehensive distributed learning copyright policy (DLCP) written as a supplement to its University Copyright Policy. Because of the reference to the University Copyright Policy, that document is included in this critique. In addition, other UNT documents relating to dual employment (2001a) and academic freedom (2001b) were referenced when the DCLP did not fully address a situation. It appears that UNT is not consistent in its use of "staff" and "faculty," nor are the terms defined, which added an interpretation issue for an outside reader.
Because UNT has recognized the potential value of distributed learning, the DLCP raises the issues associated with distributed learning, provides general guidelines, then addresses five specific categories for assigning ownership, responsibilities, and royalties. The categories progress from Category I, "Totally Faculty or Staff Generated," to Category II, "Minimal University Resources," to Category III, "Substantial University Resources," to Category IV, "Work Made For Hire." Category V, "Faculty Member Uses Own Work," references the ownership decision to one of the first four categories.
In general, the language is clear and fulfills its stated purpose of "protect(ing) the rights of both the faculty member and the University and to encourage the offering of quality distributed learning programs" (UNT, 2000, para. 1). Examples that are provided for each category describe the contributions of the faculty member, the university, and any external parties. Then ownership and compensation for each category is stated. At more than one point, the DLCP advises that all agreements and account should be in writing. At the end of the document are links to the license agreements for Categories I - IV. There is not a separate license agreement for Category V; instead, ownership is determined according to the applicable guidelines of Categories I - IV.
It is not clear that the document addresses works made by all the stakeholders (e.g., professional staff who may also teach one or two courses per semester, teaching assistants, research assistants, and post-docs). Category I is titled "Totally Faculty or Staff Generated," yet the examples reference faculty only. Professional staff are members of the university community who are full-time, 12-month appointments with responsibilities outside teaching and who are not compensated for their teaching efforts. Within the category of professional staff may also be tenured faculty members who are no longer actively teaching but who retain retreat rights into their department of tenure. The document does cite an example involving an adjunct faculty member, under Category II, but adjuncts are hired to perform as faculty, with teaching responsibility. References to students within the document are for currently enrolled students.
The DLCP clearly identifies the copyright rights - ownership, licensure, right to receive royalties, revision rights, protection of the rights - and assigns those rights in accordance with each party's contribution to the creation of the work. The faculty member is held responsible for obtaining copyright on his/her original work, for enforcing that copyright, and for obtaining all the necessary copyright clearances for works owned by others, including students. UNT may be unnecessarily exposing itself and all the stakeholders' interests with this position. Faculty members are not experts in copyright law and may not have the resources to protect their copyright. There are areas in the Copyright Law that have not yet been fully adapted to the online environment, such as Section 110(1) that allows for display or performance within a classroom. The Registrar of Copyrights has not ruled on how this Section will apply in a distributed learning environment. Her recommendation is that the use be for one semester only, then removed. This particular aspect of the Copyright Law is not addressed within the DLCP. It may be desirable for all parties to have standing to sue for infringement of the work, yet the DLCP reads as if each party determines whether or not to register their copyright. Even though registration is not required, registration does grant the stakeholder(s) more rights in the event of a challenge. The DLCP is silent on whether assistance is available to the faculty member from the Patent/Copyright Officer.
The DLCP addresses the responsibility for currency of course materials and for determining a time limit for the use of the materials. The decision for whether or not particular course materials should be offered rests with the faculty member unless that faculty member relinquishes his/her right. The language of the relinquishment is not as clear, since the criteria is "in the University's opinion, (it) does not maintain academic standards" (UNT, 2000, para. 12). Paragraph 12 of the policy statement on academic freedom does provide further information about academic standards with the statement about maintaining and demonstrating professional competence in the field of specialization. Further clarification would be helpful in the event UNT should enforce a relinquishment.
In addition, the DLCP states that faculty are primarily responsible for their currently enrolled UNT students, and that that responsibility should guide faculty development of any technology-enhanced course materials. The DLCP speaks to disabled students and places emphasis on their accommodation as one reason for the development of distributed learning course materials. While distributed learning course materials may serve the mobility disabled, there is nothing specific to address the needs of other members of the disabled community.
The DLCP provides for the faculty member's ongoing use, whether at UNT or commercially distributed, of the course materials in all categories except IV, work-for-hire. The university would have the right to the ongoing use in all categories except Category I, "Totally Faculty or Staff Generated." In Categories II and III, UNT "has a non-exclusive educational license to use the work as part of UNT course delivery" (UNT, 2000, para. 25 and 28).
The policy appears to be very fair to faculty members, and may be unfair to the university. Faculty members retain rights to commercial distribution in Categories I - III, even when UNT has contributed significant support for the development of those course materials. That support may include course release(s) as well as staff and equipment for the development of the course materials. When comparing the DLCP with the Copyright Policy, it is obvious that the DLCP is structured to encourage faculty development of distributed learning courses. The language concerning ownership and royalties is much more favorable to the faculty member in the DLCP. For non-distributed learning course materials, UNT places stated limits on royalties, royalty calculation is based on net income, and the anticipated distribution is 50-50; none of those conditions applies in the DLCP.
While that support certainly provides incentive for faculty members to develop course materials, it may also lead to concerns about conflict of interest and conflict of commitment. The DLCP states that the faculty member has responsibility to his/her current UNT students, yet it does not define when that responsibility is not met. UNT's policy on "Dual Employment and Other Activities" states, "However, dual employment, interests and activities, including external development and marketing of intellectual property must not interfere or conflict with the staff member's position with the System" (UNT, 2001a, para. 2).
The specific issue of training for faculty new to distributed learning or for students who are either new or experience difficulties using the technologies is not addressed. It appears that UNT is already offering courses through distributed learning, so those support and training structures may exist. It would be a benefit if the DLCP would specify the "UNT resources beyond those normally provided by the University" (UNT, 2000, para. 20).
The DLCP does not address the issues of the weight given to distributed learning course development for tenure and promotion, nor does it address the issues of class size or faculty office/contact hours. Because of the additional time involved in preparing distributed learning course materials, it is possible that a faculty member would have less time to devote to research and community service or may teach fewer classes than another faculty member who is teaching face-to-face. Class size is an important consideration, particularly if an institution sets a larger enrollment cap for a distributed learning section than for the same course taught face-to-face.
Within the UNT Policy Manual is a section on academic freedom, responsibility, and tenure (UNT, 2001b). That policy statement begins, "Academic freedom can only endure when it is accompanied by an equally demanding sense of academic responsibility, shared by governing boards, administrative officers and faculty" (UNT, 2001b, para.9). Paragraph 11 (2001b) has UNT's definition of effective teaching, which provides guidelines against which potential cases of conflict of interest and conflict of commitment could be determined.
The Patent/Copyright Officer and Committee are assigned the responsibility for equitable application of the policy and resolution of disputes. The overall strength of this written policy should minimize the need for dispute resolution, particularly since it contains the provision for a case-by-case review should an issue of inequitable treatment arise. Responsibility also rests with deans and department chairs to work with individual faculty members in the development of the course materials as well as to determine the appropriate category for ownership and royalties and to prepare the agreement.
The DLCP is well written and could serve as a model for other institutions seeking to clarify their positions on distributed learning course materials. The members of UNT who prepared this document apparently researched the issue and took into account the documents prepared by the AAUP, the AAU, ACE, and CETUS. This critique identifies weaknesses, but the DLCP is a sincere attempt to address issues that have arisen with distributed learning. It is possible that UNT has other documents that clarify some or all of the issues.
Reference *
University of North Texas. (2000). Distributed Learning Copyright Policy. Retrieved October 8, 2001, from the World Wide Web: http://www.unt.edu/legalaffairs/distributed_learning.html
University of North Texas. (2001a). Policy SY1.2.2 - Dual employment and other activities. Retrieved October 8, 2001, from the World Wide Web: http://www.unt.edu/systemplanning/Policy_Manual/Vol1/SY1.2.2.html
University of North Texas. (2001b). Policy Manual - Policy statement on academic freedom, responsibility, and tenure. Retrieved October 8, 2001, from the World Wide Web: http://www.unt.edu/planning/UNT_Policy/volume3/15_1_1.html
University of North Texas. (2001c). Policy Manual - Copyright policy University of North Texas. Retrieved October 8, 2001, from the World Wide Web: http://www.unt.edu/planning/UNT_Policy/volume3/16_1_1.html
University of North Texas. (2001d). Policy Manual - Policy on adoption and pricing of instructional materials including classroom texts and supplemental texts by UNT faculty, staff and departments. Retrieved October 8, 2001, from the World Wide Web: http://www.unt.edu/planning/UNT_Policy/volume3/19_8.html
Documents Also Consulted *
AAUP Special Committee on Distance Education and Intellectual Property Issues Report. (1999). Retrieved from the World Wide Web: http://www.aaup.org/Issues/DistanceEd/deipdocs.htm - scroll down to "Other Reports and Documents"
American Council on Education. (2000). Developing a distance education policy for 21st century learning. Retrieved September 4, 2001, from the World Wide Web: http://www.acenet.edu/washington/distance_ed/2000/03march/distance_ed.html
Burk, D. (1997). Ownership of electronic course materials in higher education. CAUSE/EFFECT 20(3). Retrieved September 15, 2001, from the World Wide Web: http://www.educause.edu/ir/library/html/cem9734.html (38 paragraphs)
Consortium for Educational Technology in University Systems. (1997). Ownership of New Works at the University: Unbundling of rights and the pursuit of higher learning. Seal Beach, CA: California State University Chancellor's Office. [A joint project of California State University, State University of New York, and City University of New York; Kenneth D. Crews, consultant and author of much of the text]. Retrieved from the World Wide Web: http://www.cetus.org/ownership.pdf
Intellectual Property and New Media Technologies: A framework for policy development at AAU institutions (A report to the AAU digital networks and intellectual property management committee by The Intellectual Property Task Force). (1999). Retrieved from the World Wide Web: http://www.tulane.edu/~aau/IPNew MediaReport.html - report not available at this link on October 12, 2002; AAU site (www.aau.edu) not responding.