Solving the Problems of Faculty Ownership

June 14, 2008

By: Wordpress Admin in Distance Learning Administration

In the distance education world, the battle lines between faculty and administration have become complex and fraught. Once traditional understandings, regarding intellectual production and property have been eroded by digital technology. Everyone is trying to make their own way and find their own solutions to the problems posed by putting courses online. In this scenario, however, there are options for happy solutions. We decided to talk to an authority to get a sense of the possible choices in this world of new rules. Our authority is Dr. Kim Kelley, Associate Provost and Executive Director of the Center for Intellectual Property at the University of Maryland University College.

FF: What are the basic issues in the struggle for control over online courses?

Kelley: The issues for the institution and the faculty member are similar but slightly different. And that is that as you go online it becomes something more than faculty notes that are being used to teach. Further, what’s becoming much more of the norm is the concept of a group of individuals, not just a faculty member, putting the course together–a person with programming skills, somebody who can do simulations and games, an instructional designer for converting the content into a delivery mechanism that is appealing and durable in an online environment. The faculty member isn’t the only place where there’s development taking place. So when you get into these situations from an institutional administrator’s standpoint the question becomes at what point does the institution have a vested interest in the material? And then the second question is at what point would the institution want to have ownership of that content?

And from the faculty perspective, it’s always been the case that the faculty owned their course materials. This is just an extension in their minds of the current delivery that they do in the classroom. And depending on how independent the faculty member is at developing, he or she may think that this intellectual content is theirs.

FF: What are some approaches to resolving these claims?

Kelley: What institutions do varies widely. So a lot of the big institutions–MIT, Cornell–have said to the faculty, you know what, you can have your content. And if we want to use the content, we’ll either license it from them or we’ll get their permission. Or in the case of MIT they freely made it available. So there’s no exchange, monetarily.

There are other models. What they initially did in some cases was they had the faculty member say that his or her work was a work for hire. Which would automatically, once they signed the agreement, give the institution ownership. And then the faculty member would be paid a sum above their current salary in order to make it an equitable outcome for both parties.

In many cases the administration was interested in trying to encourage innovation, to get faculty involved in creating materials for online delivery. So if you want to encourage innovation, you sweeten the opportunity. And you give faculty some ownership of the work. The problem for the faculty member is that they developed the content and the content is constantly changing. But he or she may not get back to it again because it’s not primarily what that person is delivering. That content may get out of date and it needs to be revised. So who does that? The person who originally developed it? Who they gave ownership to? Or the institution? And at the point that the institution goes to revise it, who owns it at that point? The original faculty member or the person who comes next, who does the revision?

FF: How do you deal with those questions?

Kelley: One thing that the institution does is that they buy the course. And then the course belongs to the institution, so who revises it is their decision. Another way they handle it is they work in groups and they have a faculty member work on the content. They can either use the same faculty member to revise a course, or they can hire another person.

The other model is if the faculty member actually has ownership, not only does the faculty member develop the course but the faculty member becomes responsible for delivering the course. Just like they would with a face-to-face course. And then they’re responsible for the continuing development and delivery of the course.

FF: That sounds reasonable. Are there problems with that?

Kelley: The problem is when your policy says it belongs to the faculty member. That’s all well and good, but if it came down to a situation where there was a dispute legally, there are some equally good arguments that the faculty member was working in the capacity of work made for hire. And if that’s the case the content would legitimately go to the institution. So that’s where there’s a lot of problems. The faculty says that if I develop a course, I have ownership of that course. Then I have a greater incentive to create the course, deliver the course, plus it’s a part of my teaching portfolio. That’s how I demonstrate my ability to be good at this so that institution Y wants to hire me.

FF: Is there a point where the two sets of interests can compromise?

Kelley: From the institution’s standpoint, they can license some of the rights. So, for example, when I was involved in revising the policy for the University System of Maryland, the faculty member is the copyright holder. But the institution has certain rights to use that content in perpetuity. For example, they have the right to deliver that course as it was developed, for as long as they want to. And in some cases, if the faculty member leaves the institution, he or she may not use that content at their new institution for a period of say two years.

The other way you can do it is to make an arrangement with the faculty member like a Creative Commons situation, where you have certain rights. The institution has the right to use the content, has a right to revise the content. And some of those rights are in perpetuity. In another instance, I know of arrangements where it’s only for three years and then the content reverts to the faculty member.

The implication there is, most content is out of date relatively quickly, and so we only want ownership for a period of time so we share those rights. You can either have the conversation again, or we can do another course, or we can do something else. I have done that, where I had faculty develop a course, and we had an agreement where I had ownership of the content for three years. And then at the end of that three-year period it reverted back to the faculty member. And again, at that time, I would go to the faculty member and say do you want to be the person responsible for revising the content, do you want to permit us to continue to use the content? And he or she would say yes or no and then we would do a contract for revision and delivery for another three years.

FF: So it depends on what model you’re using to approach this.

Kelley: Yes. There are two ways you can basically think of this. One would be like a patent. In the case of a patent we have always believed and it’s always been a policy at most institutions that faculty members do not own their patents. Instead there’s a royalty. Faculty members let the institution pay all the money it takes to get a patent; the institution has a vested interest in the outcome. If the faculty gets any moneys for his department for any value that comes from the patent and the institution owns the patent, that’s a good mutual arrangement.

An alternative has been for example, the textbook. Think of course design and development like a textbook. If the faculty member develops a textbook, the faculty member gets a relationship with a publisher and then the publisher pays royalties–this is a model that institutions don’t want to replicate with their online courses. They don’t want to buy it back, the way they get squeezed in purchasing library materials or journals. What they want is for the content to be owned mutually between the institution and the faculty member, so if there were commercial exploitation there could be some arrangement made so the institution doesn’t find itself purchasing its own materials.

FF: What if the university has a commitment to the open content idea?

Kelley: If faculty own the courses and are resistant to putting it out there in the open content domain, but the institutions feels it’s part of their mission to educate and to further scholarly endeavor, institutions may have an issue with their faculty. In a situation like that the institution has to come to an agreement with the faculty in terms of how can they participate? And preferably, it would be ideal in my view if they could use a Creative Commons license model, come to an arrangement in terms of how content is shared, and then have those rights worked out in a standard way across the board. So that we could have an understanding which is similar to patents. But we don’t have that level of comfort with courseware.

FF: Is there one important guiding principle in all this?

Kelley: I think it’s just important that whatever model is selected it has to have the agreement of everyone involved. So it’s more about how you come to a decision than what the final outcome is. And that institutions sometimes make the mistake of not dealing with this in policy.

Kim Kelley may be contacted at Kkelley@umuc.edu.