Who Owns What When Faculty Create Digital Teaching Materials

The rise (and fall?) of MOOCs over the last two years has intensified interest in who owns digital teaching materials.  If I develop digital tools for students to use in my courses, can the college deploy these in other courses?  If I leave the college could digital versions of my lectures still be made available in online courses the college?  Who "owns" the syllabus I produce for a course?  If the college generates revenue using materials I have developed, am I entitled to a share?  In the coarsest form, the question comes down to this: if I digitize my teaching materials, will my employer be able to replace me with recorded versions of my lectures?

It's complex question with lots of legal nuance, and still evolving practice.  The gist that's relevant for most college faculty members is whether their employer can claim ownership in teaching materials they commit to digital form.

At many institutions, there's no existing policy and this provides faculty an opportunity to put smart policies in place. It's also a risk for faculties who are asleep at the wheel to find themselves with an especially unfavorable policy in place.

A first step in developing the background knowledge necessary to think this through is to clarify the the difference between patents and copyrights.  Patents are for inventions that have functions, copyrights are for creative works with an author.  Patents last for 20 years and give the patent holder right to exclude others from making and selling something.  Copyrights provide authors with control over reproduction, derivative works, distribution and public performance.  Patents are the big concern among scientists and engineers.  Copyright is more the issue for the rest of us.

Owning or holding copyright in your teaching materials - lectures you write, lectures you deliver and someone records, worksheets, exams, syllabi, study-guides - is, for practical purposes, about whether or not someone else can use them, as is or in modified form, in a "commercial" endeavor. That could include another teacher using them without permission in her teaching, but mostly it means can a for-profit website, a for-profit educational institution use or adapt your materials and sell them to students.  Or it could mean can your own institution use the materials to offer credits to students you do not teach?  Or to continue to offer "your" course after you leave the institution?

My own solution for these things is to put everything I produce under what is called a Creative Commons Attribution-NonCommercial-ShareAlike License:

Teaching Materials by Dan Ryan are licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

This means I grant anyone in the world permission to use and adapt my stuff for non-commercial purposes as long as they grant the same license on the material they produce.

But what happens if my employer wants more?  That's where the need for an institutional policy comes in.  To stimulate discussion, here's a first draft of a policy based on one found at Emerson College.  In the policy below, a "non-exclusive royalty-free license" means the college can use the materials without paying the creator and the creator can still license the work to others as she sees fit.  Note that the purpose of this policy is to encourage creativity.  The standard here is "what rights for creators will motivate production of more rather than less pedagogical material."

Faculty rights generally. “Faculty,” all members of the tenured and tenure track faculty and all employees who have a term contract for teaching at the college and all members of the library staff.*  Faculty retain ownership of copyright in all their scholarly and pedagogical works, with the following limitations:

1. Faculty rights in work created with significant College equipment or staff. If faculty create the work using College cameras, film editing software or hardware, audio editing software or hardware, focus group rooms, specialized staff assistance, multimedia development staff assistance, equipment in computer production labs and suites, television studios, or theaters and sound stages, then the faculty member owns the copyright in the work, but College retains a non-exclusive royalty-free license to use the work for the College’s educational, promotional, and public relations purposes.
1. The use of standard issue office computer and software or routine support by IT does not constitute "significant College equipment or staff."
2. This limitation does not apply to materials developed and used for classroom or other course work; that is, the College does not claim a non-exclusive royalty-free license to use faculty created syllabi, lecture notes, lesson plans, handouts, PowerPoint presentations and other digital materials, and the like created in fulfillment of one's teaching responsibilities.
3. This limitation does not automatically apply to all audio or video recordings of one's class presentations and lectures; that is, even if some college resources are used to produce a recording of lectures for the purposes of "flipped" classes, student review, etc. no license is granted to the college for the use of these materials outside courses taught by the faculty member.
2. Faculty rights in work created with significant College financial support. In general, if faculty create the work as part of an explicit assigned task, such as the development of a new course, and receive specialized financial support, such as a special assignment contract, then the faculty member owns the copyright in the work, and College retains a non-exclusive royalty-free license to use the work for the College’s educational, promotional, and public-relations purposes.
1. The receipt of course-development support does not in and of itself constitute "significant College financial support."
3. The College may on occasion provide faculty significant financial support on the condition that the College own the copyright in the work. The College must assert, in writing at the time the funds are first released, its ownership of the copyright in the work, and the College must grant the faculty member a non-exclusive royalty-free license to use the work for educational purposes.

* The rationale for this definition is to include all those persons who the college wants to be creating things related to education and instruction.  In other words, the purpose of this policy is to encourage creativity.

See Also

• AAUP. 2013. "INTELLECTUAL PROPERTY—draft report for comment" (AAUP summary, IHE Article)
• Butrymowicz, Sarah. 2014. "As online courses expand, so do questions about ownership." The Hechinger Report (3 March)
• Cate, et al. 2007. Creating Intellectual Property Policies and Current Issues in Administering Online Courses 
• Nelson, Cary. 2012. Whose Intellectual Property? Inside Higher Ed June 21, 2012
• Stanford Policy
• Yale University. "Yale Online Faculty Policies"