Distance Learning Courses: Who Owns Them?

Author:Mr Ieuan Mahony
Profession:Holland & Knight LLP

Developing an online distance learning course requires a significant

commitment of effort and resources. Once captured in a form for digital

delivery, the lectures and related visual effects can be re-used again and

again, and may become a strong revenue source through, among other means,

licensing beyond the “home” college or university. Accordingly, questions as

to ownership will invariably arise.

No clear consensus has emerged as to ownership of online courses or how to

allocate the revenue from them. For example, Duke University has a new policy

(announced May 23, 2000) whereby online courses using substantial Duke resources

will belong entirely to Duke, as works for hire. If the professor creates the

course independently, the professor will enjoy full ownership. For courses that

“fall in between,” a Committee appointed by the Provost will decide

ownership. In contrast to the relative clarity of this policy, under the new

policy of San Diego State University, the professor and the University must

agree on who will own the course before it is developed, with no provision for

situations where such an agreement does not exist.

Assessing Existing Copyright Ownership Policies

The first step in addressing these issues is determining whether the

institution has an existing copyright ownership policy and whether it properly

covers distance learning. Many institutions have in place a copyright ownership

policy generally applicable to educational and research materials. To encourage

professors to create such works, these policies expressly grant copyright

ownership to the professors, with certain limited exceptions.

These ownership provisions, however, generally have not been drafted with

distance education courses in mind, and thus are not well tailored to address

the online environment. In particular, most copyright policies do not directly

answer the question of whether a distance education course belongs to the

professor or the institution: the course content generally appears to fit the

definition of a “traditional work,” yet the delivery mechanism and certain

features of the course are anything but traditional.

Resolving Ownership Issues By Contract

Institutions and instructors should seek to reach an agreement at the outset

as to copyright ownership and revenue sharing. Developing an online course

requires a significant commitment from the institution, often including the

purchase of additional hardware and software as well as additional training for

instructors. Similarly,...

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