Re: faculty coursework online

On 2/27/00, Art MacCord <amaccord[_at_]rcblaw.com> wrote:
>
> It seems to me that any copyrightable material that a college
> instructor prepares as part of his or her job is likely to be owned
> by his or her employer unless there is a contract provision providing
> otherwise. See 17 US Code 101 for the definition of a work made for
> hire.

Think of the consequences of the above assertion. Academics moving from one institution to another would not be able to take their courses or their prepared lectures with them. Universities, for fear of being held responsible for infringements on the part of new faculty would have a great disincentive to hire faculty who had worked elsewhere. Clearly, the tradition that permits academics to own their own intellectual property is there for a reason and should be respected by the law as it is now respected by common practice. Such traditions typically develop because the interest of the public is well served by them. The law, such as it does not accommodate such traditions, is generally faulty.

There are a few situations when institutional interest in a faculty member's intellectual property should perhaps be allowed to prevail -- at least temporarily: when the use of materials created at one university aids another to the detriment of the university that employs the teacher, or when the association of a teacher with an educational institution may harm the reputation of his regular employer. But, even here, each situation must be weighed and judged on its own merits. For instance, if a teacher is prevented from teaching a course at his own school, but another school provides that opportunity, it would seem logical that the demands of academic freedom should predominate.

In courses that tend to rely on textbooks -- typically survey courses -- or courses in technical subjects, teachers usually prepare their lectures by depending heavily on the texts. Strictly speaking such faculty may be held to be infringing the text, if not by overly quoting, then by using of the material copyrighted in compilation or in use of textbook examples. Naturally, since it is in the interest of the textbook publishers for faculty to depend on the texts they assign, there will be no claim of infringement for such uses. But what if a teacher bases his lectures on a text he does not use or if he adapts lectures he heard elsewhere -- all common practices. Obviously, strict adherence to the letter of copyright law as far as classroom teaching is concerned is contrary to the public interest. Teachers and faculty must be given a license to use materials for their needs consistent with educational traditions and needs -- even if that means a somewhat generous interpretation of fair use. Good teaching often depends upon the use of tradition and departures from tradition. The above notwithstanding, the content of any individual class can vary instantaneously. To expect teachers to exert the same duty of care demanded of publishers, for instance, would be to subject teaching and teachers to standards that cannot be met.

If a university claims ownership of a professor's lectures, notes, exams and study guides, it is quite possible that their ownership will be compromised by not being able to claim fair use in their ownership of materials the teacher regularly uses.

Robert A. Baron
<rabaron[_at_]westnet.com> Received on Tue Feb 29 2000 - 16:37:39 GMT