Dissertation Proposal Work

Chapter 1

Allen Mooneyhan

Educational Research and Evaluation

Dissertation Proposal

An Analysis of Policy Concerning Ownership of Intellectual Property with Regard to Electronic Materials in Higher Education

Dr. Cline

Arkansas State University

September 24, 2001

CHAPTER I

INTRODUCTION

The use of the Internet by colleges to provide information to students continues to rise in the United States.  Our society has only begun to see the effects of technology on learning and teaching (Barone, German, Katz, Long, & Walsh).  Several possible reasons for this trend include availability of information, convenience to the student, and the amount of resources offered via the Internet.  Information that is put online is available to the student anytime of the day or night.  Furthermore, that information is available from anywhere in the world where Internet access exists.  Convenience speaks to another facet which has led to an increase in the use of the Internet in higher education.  The ability to offer convenience coupled with quality instruction is a significant asset for institutions of higher education.  The institution is able to offer courses and programs to students who may be unwilling or unable to travel to be on a physical campus.  The virtually unlimited amount of resources on the Internet today is another selling point for educational institutions and those advocating the use of the Internet for educational instruction.  The amount of information available to students in the form of researchable instructional material is literally staggering.

Distance education is not new to American educational institutions.  For decades institutions of higher learning in America have used forms of distance education to extend their campuses beyond their physical location.  According to Cyrs (1999), distance education programs using methods such as telephone and audioconferencing have been around since the 1930s.  While these specific methods for delivering instruction are not new to educational institutions, there are now methods used to transmit educational materials that are very new to education and our society in general.  One such system is the Internet and its delivery system which can be used to facilitate instruction through the use of educational materials and tools.

Many educational tools have been created by faculty members for use by their students via the Internet.  The Internet is a delivery system that allows one to make information available immediately to an almost unlimited number of individuals residing virtually anywhere.  Brown (2000) supports this with his claim that technology is a means by which learning can take place anywhere.  This system also provides a means for inexpensively making information permanently available because its availability is independent of the need to have personnel to supply that information.  Once information is uploaded, it remains in that form and available for students to access without assistance from institutional employees.

The use of the Internet to offer information has facilitated instruction in several ways.  Bruwelheid (1999) likens the web to a smorgasbord of materials speaking of the varied formats made possible by the Internet.  First, formal courses have been offered over the Internet.  Students are able to log onto the Internet and complete requirements to earn credit online without having to attend a physical classroom.  Second, supplementation denotes information that is posted to the Internet, which students are able to use in conjunction with material obtained from the physical classroom.  Third, information management implies that information is uploaded to the Internet and can be used by the institution and its personnel.  Additionally, this information is portable in the sense that it can be downloaded from any computer with Internet access.  Fourth, student services have been offered to a significant degree over the Internet.  Student services that may be offered over the Internet include information for prospective students, orientation, admission, registration, academic advisement, technical support, library services, career services, services for students with disabilities, instructional support and tutoring, bookstore services, services to promote a sense of community, and services affecting financial aid and personal counseling (Carbajal & Krauth, 2000).

With the move toward higher education courses offered over the Internet, there are several new issues and concerns that institutions of higher education will have to address.  One such issue is that of ownership of online materials.  Who owns material that is created by the instructor and posted to the Internet for use by students of the institution?  With the increase in the number of instructors putting information online, there is an increase in the stake the institution holds in the ownership of that information.  Will institutions be able to continue to use instructor-created online information to draw students when that instructor no longer teaches that class?  Without standard policies and procedures for handling these concerns, institutional administrators at specific institutions may currently be addressing them as cases arise with no knowledge of how they are handled elsewhere. 

The increased use of distance education and the utilization of technology-mediated educational materials has given rise to increased interest by faculty and administration about copyright issues (Salomon, 1999). 

[Constitutional implications (copyright)]

Many institutions have begun to attempt to determine the specific circumstances by which information has been created and posted to the Internet.  In these cases, it is maintained by the institution that if the instructor uses substantial institutional resources such as a computer, server, or software to create the online material, such material will belong to the institution.  In this case, the administration considers the work to be one made for hire and therefore owned by the institution employing the author of the material  (Salomon, 1999).  Furthermore, some institutions have taken the view that if information has been uploaded to and hosted on a server that is owned by the institution, that information now belongs to the institution owning the server on which the information resides. The Council for Higher Education Accreditation (2000) eludes to this in a report indicating that when the institution provides specialized services for the facilitation of material in a distance learning environment an ownership claim could be made by both the faculty member and the institution.

[Case law in general (IP) and Case law regarding electronic media] --NEW PARAGRAPH--

Statement of the Problem

Traditionally, instructors have created information for use in their classes that was not subjected to scrutiny of the circumstances by which that material was created.   These materials may have included any information that was created by the instructor to be delivered to the student as a form of instruction or supplement to existing instruction occurring in the classroom.  Some examples of these educational materials are notes, quizzes, assignments and textbooks that are created by faculty.  Materials created by a specific instructor have, until recent times, been considered to be the intellectual property of the author of that material.  Salomon (1999) explains that it has been a common practice for higher education institutions to voluntarily confer ownership of authored material to the faculty member creating such material.  However, with the rise in the information that is offered via the Internet, and the rise in the value of information which is coupled with a delivery system as proficient as the Internet, institutions have begun to reexamine policies and procedures that release that information to the author for ownership.  According to Gorman (1998), within the academic community the debate as to who owns intellectual material has been heightened by both new technology and budgetary challenges faced by university administrators.

            Facing these challenges, many institutions are rethinking traditional practices in favor of incorporating more control over materials created by faculty members.  One defense by institutions for attempting to take ownership of electronic materials is that the creator relies on the institution to provide resources that make the creation possible.  When significant institutional resources are used in the creation of online material, there may be a legitimate claim to ownership by both the faculty and the institution regarding information produced for instruction.  For example, Gorman (1998) suggests that when the university instigates the activities resulting in the creation of online material and when exceptional university resources are used to develop them, the university legitimately has rights to the educational product.  Therefore, the traditional view in higher education that information created by a faculty member for students in a course is owned by the author of such material is no longer categorically accepted as proper procedure. 

This view, however, remains a significant part of the educational philosophy of many leaders in education.  The attempts by institutions to take ownership of information created by its faculty members have caused some turmoil within the faculty and its professional organizations.  For example, the American Association of University Professors adopted a policy statement in 1999, which includes the premise that a faculty member who creates intellectual property should own that property.  There will likely be many investigations into the best way to protect the rights and interests of both the institution and the faculty member creating educational materials.  Institutions as well as instructors will have to come to some agreement as to how this issue will be resolved in order to maintain a working relationship that must exist if these parties are to provide quality experiences for their students.

            Institutions that have clearly defined policies regarding ownership of materials created by faculty members may experience fewer problems than those institutions that do not.  McLendon and Cronk (1999) pose that the greatest challenge to the future of successful distance education delivery may be the development of policies and practices which keep pace with the developments in technology.  Furthermore, policies that are in effect and adequately publicized to the faculty prior to the creation of material by the faculty members may provide for fewer misunderstandings between the institution and its faculty.  Additionally, when policies clearly define what circumstances provide for a shift in ownership from the faculty member to the institution, all parties may experience fewer conflicts.  Any transfer should comply with applicable copyright laws and should be represented in a signed agreement including both parties (Council for Higher Education Accreditation, 2000).

However, the idea of using the World Wide Web to post materials to the Internet to provide for more effective teaching of courses and to facilitate classroom instruction is significantly new to our society. McLendon and Cronk (1999) suggest that surprisingly little has been written about the academic management and administration of internet-related distance education.  Furthermore, according to Danley and Fetzner (1997), it has only been in the past few years that the vast array of new distance learning programs has been introduced. Therefore, it may be that at a particular institution there are no policies or procedures to provide insight into how to properly handle situations where the rights and welfare of the institution must be weighed against the intellectual property rights of faculty members. 

It may be that school policies exist with regard to online educational materials at various places around the country.  These policies may already be effectively considering the issues as they relate to both the institution and its faculty members.  These policies may also be addressing the legal ramifications of copyright law, case law, and common law as it applies to intellectual property.  In searching for adequate guidelines for institutions to utilize in developing ownership policies, this study is divided into three phases. 

Phase one will analyze exiting law as well as the presidence set by past cases and common law.  This will result in a rule of law that can be applied to the ownership of electronic materials.  This phase will end with the development of a framework to be used for analysis of policies secured in phase two.  [Methodological-oriented section on how to go about doing policy analysis -- Richard Elmore]

Phase two will consist of acquiring current policies from around the nation and analyzing them based upon the framework which originated in phase one.  Policies will be categorized into three areas differentiated by the degree to which they are, or are not, supported by the rule of law as it now applies.  The first category will include policies that cannot be supported.  The second category will include polices that may be supported.  The third category will include policies that are supported. 

Phase three will result in the creation of a model policy based on the framework created in phase one and the resluts from the analysis of policies completed in phase two.  This phase will culminate in the creation of a model policy which is supported by the law and is sensitive to both the institution and faculty members.  Institutions may then use this model policy to create and implement a policy which is acceptable to everyone. 

The existence of a fair policy will ultimately benefit both the institution and the faculty.  It is suggested by King, Nugent, Russell, Eich, and Lacy (2000) that developing policies is the surest way to help assure distance education programs that provide certification, licensure, and degrees.  The emergence of a fair policy that would treat institutions as well as faculty with appropriate fairness quite likely would be embraced by both the institutions and faculty members facing the possibility of dealing with this situation.

Purpose of the Study

The purpose of this study is threefold.  First, a framework for the analysis of policies will be created based on an investigation into current law as well as common law and case precedence relating to intellectual property.  Second, policies will be obtained from around the nation in order to analyze them based on the framework previously created.  Policies will then be placed into three categories based upon the extent to which they are advisable with regard to the law as it applies to intellectual property.  Third, a model policy which institutions may use to formulate their own policies regarding intellectual property will be developed.  This study will culminate in not only a model policy that can be used as an example by institutions but also in a framework that can be used to determine the feasibility of a particular policy.

Significance of the Study

Institutions need policies in place with regard to who owns materials authored by their faculty members.  With the emergence of conflict with regard to the intellectual property rights of faculty who create materials to be used online, there is a need for policies and practices which will provide insight into how institutions may balance the rights of the faculty to own the materials they create with the rights of the institution to continue to offer courses for which they have yielded support.  The impact of materials which can be disseminated over the Internet has become significant as a result of the market value of those materials.  Institutions have a stake in who owns materials because they will benefit from the ability to continue to offer those materials to students online.  Faculty members also have a stake in who owns materials because they will benefit from the ability to use those materials at institutions of their choice.  Finally, both faculty and the institutions they work for will benefit from a clear-cut policy that is in effect and explicit about who owns materials as well as the details dealing with who may use or edit those materials.

With regard to the law relating to intellectual property, a thorough analysis of current law as well as common law and case precedence may result in a general framework by which one may evaluate the extent to which policies are acceptable.  This framework will be significant to institutions struggling with the issue of intellectual property rights.  Also significant to institutions as well as faculty is the existence of a model policy which incorporates the legal ramifications of the issue, the rights of the faculty member, and the interests of the institution.  The development of a clear and comprehensive policy which specifically addresses the concerns of both the faculty and the institutions may be facilitated by the resources assimilated as a result of this study.

            Policies that can be obtained and evaluated may provide a general framework for schools to follow when designing their official policies regarding ownership of faculty-authored online materials.  This study will supply examples of actual policies existing in institutions around the nation that could be used to facilitate the formulation of an adequate policy on intellectual property.  A clear and acceptable policy that is in place in the beginning may prevent misunderstandings as well as liability resulting from copyright infringement.

Limitations and Delimitations

            This study will be limited to institutions of higher learning including two-year and four-year institutions.  The study will also be limited to the specifics of policies in existence rather than other factors such as administrative and faculty attitudes and opinions regarding this issue or practices which are applied in situations where no official policy exists.

            The creation of evaluative criteria to be used in assessing policies will attempt to consider the rules of law, institutional interests, and faculty concerns.  However, the ability to develop criteria which is responsive to the rule of law as it applies to institutions in each state may be a limitation.  This is because case law as well as common law may be somewhat different in each state and that precedence may apply only to the jurisdiction of that state.  Further, laws are continuously changing.  Therefore, at any point in the future any specific case not heard by the supreme court may be overturned, thus changing the impact of that precedence.  Finally, with the vast amount of attention being given to the issue of intellectual property with regard to its dissemination via the internet, new laws will quite likely be introduced that will further define or change the rule of law as it applies to intellectual property in higher education.

            An attempt will be made to develop criteria which significantly explores institutional concerns and faculty interests as they relate to the question of ownership of faculty-created electronic materials.  Further, federal law as well as precedence established in state courts will be used in an attempt to develop rules of law that are inclusive of state decisions and thus applicable to institutions nationally.  Finally, policies will be solicited which deal with the owner of all electronic material created by faculty.  The scope of this study will not be limited to electronic courses.

Objectives

The objectives of this study are as follows.

1.     To develop a framework to be used in the analysis of current intellectual property policies which deals with copyright law, common law, and case law with regard to intellectual property in higher education and considers both institutional concerns and faculty interests.

2.     To collect policies in existence around the nation and analyze them using the framework developed in this study.

3.     To create a model policy which incorporates the concerns of legality, rights of the author, and the interests of the institutions in dealing with the ownership of intellectual property.

Research Questions

1.     What current copyright laws are applicable to dealing with who ones intellectual property in higher education?

2.     What does common law indicate to be current practice concerning who owns intellectual property in higher education?

3.     What are the case precedence with respect to who owns intellectual property in higher education?

4.     What are characteristics of policies which violate the rule of law concerning who owns intellectual property in higher education?

5.     What characteristics of policies are indicated by the rule of law to be acceptable in addressing who owns intellectual property in higher education?

6.     What characteristics of a policy are needed in order to satisfy authors of electronic materials?

7.     What characteristics of a policy are necessary to satisfy the interests of the institution?

Logical Framework

                        The use of the Internet by institutions of higher education to provide information to students has risen dramatically in the United States.  Many educational tools have been created by faculty members for use by their students via the Internet.  With the move toward higher education courses offered over the Internet as well as supplemental materials distributed the same way, there are several new issues and concerns that will have to be addressed.  One of these issues is ownership of information created by faculty members for use via the Internet.  Many institutions have no policy concerning ownership of intellectual property or do not have policies that adequately reflect how the law applies to the ownership of intellectual property.  There is a need for policies that effectively reflect this issue to be in place prior to the creation of electonic materials by faculty members.

            With this concern just beginning to surface at higher education institutions, there is a knowledge void relative to what is the most appropriate way for institutions to establish polices for dealing with ownership of intellectual property.  How do institutions arrive at policies that are fair to both the  faculty member creating information and to the institution that may benefit from that information?  Institutional policy needs to reflect these issues as well as the rule of law found in current copyright law, common law and case precedence.

            One possible solution is to develop a framework that will address these issues.  This framework can be used to evaluate policies in existence.  Additionally, policies may be collected from institutions and analyzed based upon this framework.  Finally, as a result of the analysis of current policies, a model policy may be developed which addresses the legal implications, faculty concerns, and the interests of the institution.  Below is a logical framework depicting the process of developing a framework for analysis of current policies, collecting policies from institutions in order to analyze them based upon the framework developed, and creating a model policy that encompasses each of the issues involved relative to the law, the faculty, and the institution.

  < Back