Who Owns What When Faculty Create Digital Teaching Materials

The rise (and fall?) of MOOCs over the last two years has intensified interest in who owns digital teaching materials.  If I develop digital tools for students to use in my courses, can the college deploy these in other courses?  If I leave the college could digital versions of my lectures still be made available in online courses the college?  Who “owns” the syllabus I produce for a course?  If the college generates revenue using materials I have developed, am I entitled to a share?  In the coarsest form, the question comes down to this: if I digitize my teaching materials, will my employer be able to replace me with recorded versions of my lectures?
It’s complex question with lots of legal nuance, and still evolving practice.  The gist that’s relevant for most college faculty members is whether their employer can claim ownership in teaching materials they commit to digital form.
At many institutions, there’s no existing policy and this provides faculty an opportunity to put smart policies in place. It’s also a risk for faculties who are asleep at the wheel to find themselves with an especially unfavorable policy in place.
A first step in developing the background knowledge necessary to think this through is to clarify the the difference between patents and copyrights.  Patents are for inventions that have functions, copyrights are for creative works with an author.  Patents last for 20 years and give the patent holder right to exclude others from making and selling something.  Copyrights provide authors with control over reproduction, derivative works, distribution and public performance.  Patents are the big concern among scientists and engineers.  Copyright is more the issue for the rest of us.
Owning or holding copyright in your teaching materials – lectures you write, lectures you deliver and someone records, worksheets, exams, syllabi, study-guides – is, for practical purposes, about whether or not someone else can use them, as is or in modified form, in a “commercial” endeavor. That could include another teacher using them without permission in her teaching, but mostly it means can a for-profit website, a for-profit educational institution use or adapt your materials and sell them to students.  Or it could mean can your own institution use the materials to offer credits to students you do not teach?  Or to continue to offer “your” course after you leave the institution?
My own solution for these things is to put everything I produce under what is called a Creative Commons Attribution-NonCommercial-ShareAlike License:
Teaching Materials by Dan Ryan are licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
This means I grant anyone in the world permission to use and adapt my stuff for non-commercial purposes as long as they grant the same license on the material they produce.

But what happens if my employer wants more?  That’s where the need for an institutional policy comes in.  To stimulate discussion, here’s a first draft of a policy based on one found at Emerson College.  In the policy below, a “non-exclusive royalty-free license” means the college can use the materials without paying the creator and the creator can still license the work to others as she sees fit.  Note that the purpose of this policy is to encourage creativity.  The standard here is “what rights for creators will motivate production of more rather than less pedagogical material.”

Faculty rights generally. “Faculty,” all members of the tenured and tenure track faculty and all employees who have a term contract for teaching at the college and all members of the library staff.*  Faculty retain ownership of copyright in all their scholarly and pedagogical works, with the following limitations:

  1. Faculty rights in work created with significant College equipment or staff. If faculty create the work using College cameras, film editing software or hardware, audio editing software or hardware, focus group rooms, specialized staff assistance, multimedia development staff assistance, equipment in computer production labs and suites, television studios, or theaters and sound stages, then the faculty member owns the copyright in the work, but College retains a non-exclusive royalty-free license to use the work for the College’s educational, promotional, and public relations purposes.
    1. The use of standard issue office computer and software or routine support by IT does not constitute “significant College equipment or staff.”
    2. This limitation does not apply to materials developed and used for classroom or other course work; that is, the College does not claim a non-exclusive royalty-free license to use faculty created syllabi, lecture notes, lesson plans, handouts, PowerPoint presentations and other digital materials, and the like created in fulfillment of one’s teaching responsibilities.
    3. This limitation does not automatically apply to all audio or video recordings of one’s class presentations and lectures; that is, even if some college resources are used to produce a recording of lectures for the purposes of “flipped” classes, student review, etc. no license is granted to the college for the use of these materials outside courses taught by the faculty member.
  2. Faculty rights in work created with significant College financial support. In general, if faculty create the work as part of an explicit assigned task, such as the development of a new course, and receive specialized financial support, such as a special assignment contract, then the faculty member owns the copyright in the work, and College retains a non-exclusive royalty-free license to use the work for the College’s educational, promotional, and public-relations purposes.
    1. The receipt of course-development support does not in and of itself constitute “significant College financial support.”
  3. The College may on occasion provide faculty significant financial support on the condition that the College own the copyright in the work. The College must assert, in writing at the time the funds are first released, its ownership of the copyright in the work, and the College must grant the faculty member a non-exclusive royalty-free license to use the work for educational purposes.

* The rationale for this definition is to include all those persons who the college wants to be creating things related to education and instruction.  In other words, the purpose of this policy is to encourage creativity.

See Also

After Setbacks, Online Courses Are Rethought

The latest swing of the MOOC headline pendulum is way over on the “complete bust” end of the evaluation spectrum but they represent a very big solution in search of a problem and as such are not likely to disappear as fast as they emerged.

I stand by most of the points I made in my 2012 talk on MOOCs and small liberal arts colleges.  The main one was that we should we should avoid the urge to imitate and compete but embrace the opportunity to borrow and adapt the tools being developed in connection with MOOCs.

In today’s NYT we read about several high-profile flops in MOOC-land and evaluation research that suggests that MOOCs so far have been reaching “already educated” folks rather than those without access to higher education, undermining one of their primary public selling points. I would caution against over-embracing: as I said in the 2012 talk, the bandwagon is a hand-basket.

Other recent MOOC-related articles in the NYT…

The Conversation about Competency-Based Education I

One starting point for thinking about the thinking about “competency-based education” is the executive summary of a 2002 report from the “National Post-Secondary Educational Cooperative” (associated with National Center for Educational Statistics which is connected with the Institute of Education Sciences  which is a part of the Department of Education).  It lays out some of the issues in the ongoing conversation about “competency-based” education.  The motivations sound plausible, but are not as strong arguments as they could be:
  1. Assessment  is based on competencies. So think in terms of competencies so assessment can happen.
  2. Competencies help faculty, students, employers, policymakers have common understanding about skills and knowledge students should have as result of education.
  3. Articulating competencies facilitates design of curriculum and teaching and evaluation methods.
But it is part of a bigger picture.  One piece of this is the argument that “other stakeholders” should have more of a say in what faculty are teaching students.  These would be employers and governments.
Another piece is concern that certification for competence should be “transportable.” For some this means from school to school. In Europe it means between national higher education systems.  The “political” rub comes when it means between schools and other entities that can offer certification – in other words, it is a tool meant to break the monopoly that colleges and universities have on being the place where society can spend its education dollars.
Yet another issue raised is reliability and validity (of the means of certifying competence).  Reliability means different evaluators evaluate the same person the same way.  Validity means that the outcome of an evaluation is an evaluation of what we think it is.