2.1 Conflicting sector guidance as to who owns copyright in teaching materials
Commentators on the copyright ownership of teaching materials produced by UK academics tend to fall into one of three camps: those arguing that academics either do, or should, own the rights; those arguing that universities do; and those that conclude that the situation is unclear or circumstance-dependent.
Not surprisingly, organisations supporting academic staff such as the University and College Union (UCU) tend to take the position that academics own the rights, and organisations supporting universities, such as the Higher Education Funding Council for England (HEFCE), take the view that universities own the rights. Interestingly, the positions of both of these groups have polarised significantly over the last fifteen years. Thus in 1999 the predecessor of the UCU, the Association of University Teachers (AUT) created a
Guide to Intellectual Property (AUT
1999) which stated that, under law, the rights in teaching materials “belong” to the institution as employer. The later
UCU Post-92 Model contract of employment (UCU
2006) took the same view. Despite this, the AUT Guide (1999) recommended that “authors should seek to retain copyright” in “material created directly for teaching, especially where it is for self-paced or distance learning programmes.” However, a more recent statement on intellectual property rights from the UCU refrains from asserting the institutional ownership of teaching materials, instead claiming that the situation is “complex” (
UCU, [n.d]). It suggests that “institutions should… negotiate policies, the principal objectives of which ensure that [authors] should retain copyright in material produced during the course of their duties, allowing in some cases free use for teaching purposes within the employing institution” (
UCU, [n.d]).
In a similar way, copyright guidance for universities has also shifted over time. In 1998, the HEFCE-funded Joint Information Systems Committee (Jisc) created some Copyright Guidelines with the Teaching and Learning Technology Programme (Jisc/TLTP,
1998) to provide “pointers towards good practice in the development of computer-based materials for higher education”. The Guidelines recognised that in practice universities often rescinded copyright in favour of academic ownership. Even so, they stressed that “this is just a convention and should university authorities be so minded, they could choose to acquire the copyright in literary works created by academics in the course of their employment, by virtue of being the employer.” Almost two decades later, after a period of rapid OER development, the Jisc moved beyond suggesting that universities
could acquire the copyright in literary works and recommended that they
should. The 2006 guidance for senior university managers on
Intellectual property rights in e-learning programmes prepared by Jisc in partnership with the Higher Education Funding Council for England (HEFCE) claimed that:
HEIs should own the IPR [Intellectual Property Rights] in the e-learning materials created by their staff, and contracts of employment should make this explicit. This also applies to freelance and, where agreed by them, to student creators. (HEFCE
2006).
However, it does concede that “lecture notes, as distinct from formal course/module handouts and learning materials, are generally regarded as the property of the lecturer, often as a matter of custom and practice” and that staff also “own the performers’ rights in any video or other recording of their own lectures or presentations.”
Thus, the guidance around the ownership of copyright in e-learning materials has seen a slow divergence over time. What began as a general acceptance that the rights belonged to the employing university but were relinquished through custom and practice, has diversified into a situation where universities are being encouraged not to relinquish these rights and the unions are responding with a question as to whether universities owned them in the first place.
2.2 Confusion arising from a global debate affected by different legal and cultural jurisdictions
Of course, while the scholarly debate on this issue is global, it is very much affected by the legal and cultural jurisdictions in which scholars are based. In the UK, commentators tend to fall into the first camp: the academics own the rights. Legal scholars Pila (
2010) and Rahmatian (
2014) both argue using (mainly UK) case law that academics are the rightful owners of intellectual property in scholarly works and teaching materials. However, even disregarding the legislation, Pila states, “my own view is that whatever the legal position, a university ought never to claim ownership of the copyright in its employee academics' lectures and research, nor of their inventions”. Rahmatian (
2014), on the other hand, does concede that “in law, the universities are in a better position to lay claim to copyright in teaching materials than to copyright in scholarly works.” Davies (
2015) studied UK universities copyright policy approaches towards the ownership of teaching materials as an indication of the degree to which universities support the concept of academic freedom. He concludes that “in many [UK universities], academic outputs, especially those relating to teaching, have already fallen within the entrepreneurial models of higher education and have become potentially saleable products to be owned and exploited by universities as they see fit.” In response, he argues that UK academics should fight to retain the rights to their intellectual property, or “risk reduced opportunities to change employer and, at the extreme, provide their existing employer with the wherewithal to make significant elements of their job redundant.”
In the US there is a strong lobby for the academic ownership of teaching materials, principally due to the powerful tradition of a ‘teacher exception’ to their ‘work for hire’ legislation. ‘Work for hire’ is the US equivalent of s 11(2) of the CPDA and is enshrined in Title 17, of the US Copyright Act (
1976). It states, “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.“
The teacher exception tradition grew out of common-law copyright (Centivany
2011) and was largely unquestioned both by the courts and academia until relatively recently (McSherry
2001). This does not mean it has gone unchallenged and the 1976 act “may arguably have removed the teacher exception
sub silentio” (Longdin
2004). There is however case law to support the exception (e.g., Williams vs Weiser (
1969) and Weinstein vs University of Illinois (
1987))
. Lape’s (
1992) seminal paper argued that “to the extent that the exception ever existed, it continues to exist” and it should be preserved “in order to protect the parties' expectations”. However, McSherry (
2001) asserts that the exception rests on ‘a shaky foundation’ and that “copyright ownership of lecture materials remains an open question.”
Other US authors have also become less certain about this over time and many now fall into the second camp where the university is seen as the rightful owner. Indeed, a series of studies of US Research University copyright policies reported on by Kromrey et al. (
2007) showed that the number of policies referring to ‘work for hire’ legislation increased from 9% in 1992, to 26% in 2002 and 57% in 2005. Klein (
2005) claims that due to the investment online courses require, the university should be the ultimate rights-holder. Despite this, he encourages academics to negotiate certain moral and economic rights, such as creative credit; right to reproduce and revise; future use, and royalties if commercialised. Gertz (
2006) suggests that to avoid ambiguities universities should own the rights to faculty-created works, and licence them to academic staff. Strauss (
2011) takes a stronger line and argues that as “the scope of a professor’s employment includes the production of scholarly articles and teaching materials” then “every work the professor creates and publishes is automatically a work made for hire, owned by the university”.
2.3 The shared ownership interests of universities and academics in e-learning materials
In the third camp are those authors who can see both sides of the argument. Many of these claim that “the answer to who owns the [intellectual] property depends on the condition in which it was produced" (Rhoades
1998). Loggie et al. (
2006) suggests that those conditions might include whether the teaching materials were commissioned, whether the authors were compensated, and whether there was significant use of university resources in their creation. Monotti and Rickeston (
2003) drew similar conclusions, with the addition that “the classification of the originator” and “the material in respect of which such claims were advanced” were also factors. Other commentators, such as Longdin (
2004) and Loddington et al. (
2006) point to the fact that whilst under law universities appear to have a strong claim to copyright ownership in teaching materials, their long history of waiving copyright means that the situation is by no means certain.
Most of the commentators in this camp recognise that there is still a long way to go before these issues are satisfactorily concluded, but that this will only happen if both parties enter the negotiating arena recognising they all have something to gain. Blanchard (
2010) suggests that the “faculty-institution relationship is a symbiotic one” and what benefits one, benefits the other. Bowrey (
2002) and Kromrey et al. (
2007) encourage academics and universities to work together to fight the increasing commercialisation of scholarly works where publishers are the only real winners. Longdin (
2004) reminds us that:
Authors are in the end as mobile as their works and will gravitate to institutions where online copyright issues are sensitively handled. What is needed is the transfer of sufficient rights to accommodate course management without sacrificing mobility and academic freedom.
The corollary of not coming to agreement is a situation where the writing of online courses is contracted out to third-parties – in some cases PhD students (Noble
1998), or finding that “the bolder spirits among [teaching staff and commercial providers] set up shop together outside the institution" (Longdin
2004). Neither of these options benefits either party.
Indeed, the literature suggests that coming to an amicable agreement around the ownership of rights in teaching materials might not be as challenging as the debate implies. A survey of academic staff at Monash University in 1997 performed by Monotti and Rickeston (
2003) surprisingly found that respondents showed “a considerable degree of willingness to share ownership of both research and teaching materials, or to consider this option (almost 90 per cent altogether), thus removing the possible conclusion that academic creators believe universities should have no rights in this material.”
Similarly, the Jisc-funded Rights & Rewards (R&R) project (Bates et al.
2007) utilised a methodology devised by the 2003 Rights Metadata in Open Archiving (RoMEO) project (Gadd et al.
2003) to understand how academics wanted to protect any outputs they might make available in an open electronic environment. The R&R project focussed on e-learning materials whilst the RoMEO project focussed on research outputs. Interestingly 28% of R&R respondents thought the institution owned the copyright in their e-learning materials compared to 61% of RoMEO respondents who believed the academic owned the copyright in their research outputs. In total, 51% of R&R respondents expected their university to be attributed when copies of e-learning materials were made.
These findings are interesting and demonstrate that despite the strong rhetoric around academic ownership of intellectual property, there is, amongst academics, an understanding of the legitimate interests of the university in e-learning materials.
2.4 Ownership issues not resolved by section 11(2) of UK copyright law
Whether or not the provisions of section 11(2) of the CDPA (or indeed the USA’s work for hire legislation) do apply to works produced by academics, its effect on e-learning materials is limited in other ways.
The first is that it the UK legislation only covers “literary, musical, artistic works or films” made in the course of employment. This would cover most internal teaching materials, however, a MOOC or OER may also contain other copyrightable or even patentable works such as sound recordings, broadcasts, performances, software, or designs (Porter
2013). Perhaps the most prevalent of these in online learning offers is performances. Indeed, the primary purpose of lecture capture is to “copy” performances and a recent survey of US professors offering MOOCs by
The Chronicle of Higher Education found that 97% provided “original videos” as part of their courses (Kolowich
2013). Unlike other works made in the course of employment, unless there is an agreement to the contrary, academics would be the legal rights-holders in any performances they undertake. It is not clear if the US work-for-hire legislation contains this discrepancy as it merely refers to ‘a work’.
The second limitation of s.11(2) is that academic employees are not the only actors involved in the creation, and publication, of e-learning materials. Others might include the university as commissioner of the course, academic staff from other institutions, bought-in consultants, external software providers, and even students (Porter
2013). As s.11(2) only applies to employees, the contributions of such non-employees to e-learning materials would need to be handled separately. Zhang and Carr-Chellman (
2006) also suggest that non-academic employees (such as IT staff and instructional designers) may have a different status with regards to the ownership of e-learning materials as it would be more difficult to argue that they were not creating such materials “in the course of employment”.
iii)
Rights on termination of contract
Thus, even if UK universities were to rely on s.11(2) to claim copyright in e-learning materials, there would still be a need for agreements with their creators to address such issues. Where universities do not assert s.11(2) one of the key issues relating to the development of e-learning materials is the mobility of their academic creators (Zhang and Carr-Chellman
2006). Academic employees rarely remain at one institution for the whole of their careers. Questions are therefore raised as to what happens to the teaching materials when the author is no longer at the university. If the university claims ownership or at least refuses to permit an academic to take a copy with them, this might constitute a Restraint of Trade, invoking legislation that protects an individual’s rights to continue practising their trade when they move from one employer to another (McCann
2014). If the university claims ownership but licenses rights back to the academic – do the rights continue when they leave the university? If the university relinquishes ownership but claims a licence to reuse the teaching materials, does this continue beyond the life of the employment contract? Finally, if the academic is the designated rights-holder and as such has asserted their moral rights in, say, a videoed performance, what happens when the university wants to make subsequent changes to it?
Secker and Morrison (
2016) are of the opinion that whilst the copyright in most digital teaching materials belongs to the employer,
many universities aim to strike a balance between ensuring that staff have the freedom to retain ownership of their teaching materials while giving the university the right to use teaching materials in the future, in any manner of teaching. However, there is inevitably a tension between lecturers wanting to use their teaching materials when they move to other institutions and the institution wanting to continue to exploit content, potentially exclusively.
This is particularly the case where such content is developed collaboratively by a team. Indeed, the HEFCE guidance (
2006) suggested a model contract clause stating that academics may negotiate with their former employer to allow continued access to the e-learning materials, “provided that the use of the e-learning materials does not damage the exploitation of the materials by [the Institution] or prejudice in any way the interests of the Institution”. Of course, if these issues are not resolved, an academic could find themselves facing a civil action for copyright infringement, resulting in a fine - or in extreme cases, imprisonment. However, in practice most disputes are resolved out of court (e.g., Newman
2010).
To summarise, the limitations of UK copyright law and its historical application (or non-application) to the ownership of rights in e-learning materials in UK universities, alongside conflicting guidance from external organisations such as the UCU and Jisc, leaves both universities and academics with an amount of uncertainty. This makes the role of university copyright policies to clarify the situation even more critical. The remainder of this paper undertakes an analysis of these policy documents to assess whether and how they are performing this role.
2.5 Previous studies of copyright policies
A small number of studies of copyright policies have been undertaken, driven by a variety of motivations. Monotti and Rickeston (
2003) undertook a study of copyright policies in the UK, US and Australia to inform their important overview of the
Universities and intellectual property. The findings are thematic not quantitative, however they found that “the tradition within all countries was generally to make claims to ownership of copyright in [course materials] only when it was specifically commissioned, or created under an express contract”. However, there was much variation amongst the individual UK universities studied.
In the US, there have been a series of quantitative studies of university copyright policies using a similar methodology that demonstrate changing attitudes towards copyright ownership over time. In 1992, Lape performed the first study of its kind of 42 public and private Carnegie Doctoral Research-Extensive Universities. Packard (
2002) repeated the study in 2002 and Kromrey et al. (
2007) ran it again in 2005, this time adding in some analyses particularly relating to teaching materials. They discovered a growing trend towards employers disclaiming the rights in scholarly works (23% in 1992, to 71% in 2002 and 93% in 2005) which directly correlated with a trend towards expressing commitment to academic freedom (26% in 1992, to 42% in 2002 and 74% in 2005). Kromrey et al. (
2007) reported that courseware was included in the definition of scholarly works in 40% of policies and in 36% of policies universities claimed they owned the rights in courseware and distance learning materials.
In 2008, Marshall performed a study of the copyright policies of 22 New Zealand HE institutions as they related to e-learning, and cross-tabulated the results by the type (university or polytechnic) of institution. He found that only 14% of university policies covered materials created for use in online or distance education (29% of universities and 7% of polytechnics), and only 5% covered ongoing use of materials by employees after leaving the institution (none were polytechnics). However, 23% of policies covered ownership of materials created by academic visitors and non-employees.
In the UK, Davies (
2015) investigated the approaches of UK universities towards academic freedom by studying 81 UK university copyright policies as they related to teaching materials. He found that 20% of policies allowed academics to “retain copyright in all materials, usually with an accompanying licence benefitting the university with regard to some teaching materials”; 25% of policies asserted “institutional copyright over teaching materials, but grant[ed] a licence to the academic originator for future use”, however the largest proportion, 55%, of policies asserted institutional copyright without any accompanying licence to academic staff. Other UK copyright policy studies such as those by Weedon (
2000), and Rahmatian (
2014) did not explicitly cover the copyright issues relating to teaching materials.