Who Owns Online Courses and Course Materials? Intellectual Property Policies for a New Learning Environment

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Who Owns Online Courses and Course Materials?
Intellectual Property Policies for a New Learning Environment

By Carol A. Twigg


On February 17-18, 2000, a group of fourteen higher education leaders gathered at the Biltmore Hotel in Miami, Florida, to participate in an invitational symposium. The topic was "Who Owns Online Courses and Course Materials? Intellectual Property Policies for a New Learning Environment." This was the second of the recently created Pew Symposia in Learning and Technology, whose purpose is to conduct an ongoing national conversation about issues related to the intersection of learning and technology.

The participants in the Biltmore symposium fell into four categories: (1) recognized experts on the topic of intellectual property; (2) those who are actively engaged in developing and implementing online programs and who are grappling with intellectual property issues on a daily basis; (3) people who approach the issue from a corporate perspective and who collaborate with both individuals and institutions; and (4) noted higher education thinkers on the topic of technology-mediated programs. By blending those familiar with the current policy and legal situation related to ownership issues with those struggling to delineate the practical implications, we hoped to arrive at a point of understanding that would have a positive impact on both theory and practice.

By design, we excluded several aspects of the copyright issue because other communities, especially the library community, are addressing them (e.g., fair use in distance learning environments). We focused on a particular area: the development and ownership of online courses and course materials. We also concentrated on credit-bearing courses rather than noncredit courses, training courses, self-study courses, and so on. Finally, we centered our attention primarily on full-time faculty and their engagement in developing courses and course materials rather than on adjuncts, who are usually hired by an institution to accomplish specific instructional tasks.

Why is this issue such a hot topic? For centuries, there has never been much need to figure out if one party owned a course as a commodity that could be sold elsewhere. But information technology and the Internet appear to have changed the status quo. The process of committing to writing the course content (e.g., lectures, exercises) and digitizing course materials makes it possible, if not potentially lucrative, to package courses in such a way that they can become mobile and can be delivered by people other than the original author. Courses have become "commoditized" and sought as commercial products by online distance learning companies, for-profit universities, and publishers. Thus, both institutions and faculty authors are encountering new, different opportunities.

Our goal in Miami was to examine the validity of these ideas. Among the questions considered at the symposium were the following: What is really driving the ownership discussion? What is the likelihood that faculty-developed courseware will produce substantial revenue? Can college-level courses be offered with no human interaction or intervention? Should colleges and universities make money, alone or in partnership with the private sector? To what degree should institutions seek to control the behavior of faculty members outside of their institutional commitment? How can the current climate of distrust and uncertainty be alleviated? How can policy encourage faculty members to be engaged in online learning, to develop interesting applications and courses, for the benefit of students?

Most published articles on this topic conclude with something like the following. "The real need is for an institution to have a clear statement of its policy and a mechanism to ensure that the issue of ownership is addressed as early as possible in the development process." Yet simply declaring that an institution needs a clear policy, while such a statement may be true, is not especially helpful. Institutions are having a great deal of difficulty trying to decide what their policy should be, and their inability to decide is disruptive to the internal fabric of the institution. Most colleges and universities have very little understanding of these issues. Since higher education institutions are large, highly diffused organizations, they frequently have no centralized way to focus attention on how to address these issues. Instead, policy is being debated unit by unit. Even when an institution-wide policy exists, in many instances there is no strong conformity to it. Our explicit goal in Miami was to produce a paper that would go beyond recommending that institutions have a policy and would give institutions some concrete advice about what that policy should be and why.

At the symposium, participants discussed four cases, each chosen to raise awareness of the issues and to stimulate discussion. The cases are included here to provoke the reader's thinking as well. The Arthur Miller case and the UNext.com case represent two sides of the same issue: the transfer of intellectual property from individual faculty members to organizations other than the home institution. In the former, the faculty member is the decision-maker and meets resistance from his university. In the latter, the university is the decision-maker and meets resistance from the faculty. The CaseNET case and the Math Emporium case represent two approaches to the commercialization of technology-mediated materials and methodologies. In the first, entrepreneurial faculty members take the initiative without institutional sanction. In the second, the institution has the potential to expand an innovative approach to teaching and learning beyond its own boundaries, but the question remains: how should this be done?

This paper, like the discussion in Miami, builds on the good work of the individuals who participated, both virtually and in real-time, in the symposium. Before our meeting, a number of them submitted written answers to a series of questions, and their responses, elaborated by the discussion, have been included in this paper. Although not every participant will agree with every statement in this paper, both the discussion and our general conclusions have been captured. The goal of the Pew Symposia is to approach topics related to learning and technology from a public-interest perspective. Many constituencies bring self-interested agendas to discussions about technology: administrators worry about facing competitors; faculty worry about keeping jobs; vendors worry about selling particular hardware and software. Our goal is to produce thoughtful analyses and discussions that serve the larger good. Please let us know if we have met that goal in our approach to this very contentious issue.


Professors as Rock Stars: The Arthur Miller Case

Adapted from two articles in the Chronicle of Higher Education: Wendy R. Leibowitz, "Law Professors Told to Expect Competition from Virtual Learning," January 21, 2000, and Dan Carnevale and Jeffrey R. Young, "Who Owns Online Courses? Colleges and Professors Start to Sort It Out," December 17, 1999.

In what he calls the "Hollywoodization of academia," Arthur Levine, president of Teachers College of Columbia University, envisions professors following in the footsteps of the late Cornell University astronomer Carl Sagan, who talked about physics and space on television so often—and so distinctively—that his presentations became the punch lines of Johnny Carson's jokes on The Tonight Show. In the future, Levine predicts, faculty members whose online courses become popular will end up sitting across the desk from Jay Leno.

In such an approach, a faculty member would own the rights to online instructional materials and could sell access to various online colleges. In fact, the day when professors make deals like rock stars and athletes may not be that far off. Top professors might soon sell materials to a variety of colleges—and might even hire agents to arrange television appearances and other promotions to drum up business. "There's talent that can be making more money than they currently are," Levine says. "I'm waiting for the first academic agent." He says the best professors will become something like free agents in a major sports league, able to work with whomever they choose. Except, unlike athletes, those professors will be able to play on more than one college team at once.

The Internet is creating new opportunities for institutions as well as faculty members at those institutions, according to A. Michael Froomkin, a professor at the University of Miami School of Law. "Law school is a product," says Froomkin, and new markets are presenting themselves. Although it is costly to create virtual lectures and seminars, the potential revenues from reaching out to new student markets, including corporate executives, government officials, and foreigners, could be tantalizing to law schools, according to Froomkin.

Celebrity faculty members may find new markets for their courses and reap the benefits, financially and profession-ally. Froomkin calls this the Arthur-Miller-on-a-disk model, referring to the Harvard University law professor who has already supplied videotaped lectures for Concord University School of Law, an online institution.

Harvard officials say Miller violated university policy by providing course material to another law school without permission. Miller and Concord officials maintain that because he doesn't teach at the virtual law school or even interact with its students, in person or online, Miller is not violating Harvard's policies. He says his arrangement with Concord is analogous to publishing a book or giving a lecture on television. "You name the medium, and I've conducted lectures through them," he says. Miller and Robert C. Clark, Harvard law school's dean, are now discussing how to handle the disagreement. They're also reviewing how Harvard's policy applies in the age of the Internet.

Jack R. Goetz, the law dean at Concord, says colleges and universities will have to loosen restrictions on their professors if they want to hang on to the best ones in the years ahead. Restricting faculty members' ability to teach online will encourage them to leave, because they will see online teaching as a way to build a reputation that can attract outside work, he says. Goetz notes that Miller is one of about a half-dozen professors who provide course material to Concord's law school but don't teach there. Harvard is the first institution to raise objections, he says.

Comments and Questions

Some in higher education say the issue of who owns courses and course materials is not only about money but also about how institutions protect their interests. They are concerned when, after the home institution has nourished faculty to become good faculty, competing institutions hire the faculty as adjuncts and benefit from that nurturing without sharing the cost. This issue is categorized as one of conflict of commitment. Institutions care about the faculty member who has taken advantage of the college or university's resources and simultaneously uses them at a competing institution. Clearly the new environment allows the faculty member to do such things far more easily. The ownership issue represents an attempt by the college or university to try to control the faculty member's behavior.

Here are some questions to consider:

1. One basis for objecting to this practice relates to the traditional notion of conflict of commitment—that is, the notion that faculty members owe their primary time commitment to their home institution. Is this concept still viable when courses can be captured in replicable form and distributed on the Internet or via other media forms, thus negating the time-conflict argument?

2. Another reason for objecting to this practice relates to limiting competition. In this case, Miller is not competing with his own institution, since Concord appeals to a totally different market. If the faculty member is working for an institution that is not in competition with his or her home institution, should there be any restrictions on such activity?

3. It is common practice for faculty members to teach a course at other colleges, including those that are in the same geographic region and that are presumably in direct competition with the home institution. Is there anything unique about online learning that changes the way we should regard this situation?

4. Some say that since Harvard pays the overhead for Miller to produce a course by providing him with office space, heat, library, and all other resources, Harvard has a right to prevent him from selling the course to Concord, which has provided none of this overhead and intends to make a profit. Do you agree?

5. Is there a difference between faculty who function as genuine free agents (i.e., as independent entrepreneurs not attached to any institution) and those who operate as "pseudo" free agents (i.e., still affiliated with an institution)?

6. Some believe that the issue is one of associating the Harvard name and reputation with a law school that may be viewed as less reputable. That is, some see this as a trademark problem. If Miller were doing the same thing with a well-regarded school, would Harvard be as unhappy? Or, conversely, what if Miller were a faculty member at a small college and invited to produce an online course at Harvard? Would that be OK?

7. If a professor truly has "star quality," can a college or university realistically expect to own a piece of the action? How will colleges and universities be able to hang on to the best professors in the years ahead if institutions restrict professors' ability to sell themselves and their courses to other providers?

8. If a college or university has traditionally allowed professors to teach at other institutions or consult with other organizations, is it justified in suddenly changing its practices when it thinks that money can be made or that the competition is serious?


It's a Huge Market: The UNext.com Case

Adapted from Goldie Blumenstyk, "A Company Pays Top Universities to Use Their Names and Their Professors," Chronicle of Higher Education, June 18, 1999.

A new company, called UNext.com, is offering a select group of universities a chance at Wall Street riches in return for the right to use their names and their faculty expertise for developing courses in business, engineering, and writing. The company is courting—and signing—some prestigious educational partners. Columbia University, Stanford University, the University of Chicago, and the London School of Economics and Political Science have all signed deals. UNext.com has devised a business plan that aims to tap some of the biggest growth areas in higher education today: corporate training, continuing education, distance learning, and the international-student market.

Based in Deerfield, Illinois, UNext.com plans to develop a series of business-oriented courses, sell them to multinational and overseas corporations, and then have the corporations deliver the courses to their employees worldwide via the Internet and more traditional materials, such as books. The company provides universities an "opportunity to deliver education to employed people throughout the world," says Andrew M. Rosenfield, the Chicago entrepreneur who is president of UNext.com. Worldwide, he adds, it's "a huge market."

The company was initially conceived by Rosenfield in 1997 under the umbrella of Knowledge Universe, a California holding company that has interests in numerous education and training companies and counts Michael Milken as one of its three principal owners. A titan of Wall Street in the 1980s, Milken later went to prison and paid a $1-billion-plus fine for securities-law violations. (Lowell Milken, his brother, and Larry Ellison, the chief executive officer of Oracle, are the other major Knowledge Universe owners.) Milken plays no active role in UNext.com, says Rosenfield. Nonetheless, Milken's association with the company became a bit of an issue when the University of Chicago was deciding whether to sign on.

Originally, Rosenfield's fledgling venture was financed wholly by Knowledge Universe and was known as Knowledge University. In late 1998, however, Rosenfield and the Knowledge Universe principals parted company; UNext.com was spun off, with Knowledge Universe still owning about 20 percent of UNext.com but having no voting rights. Knowledge Universe also kept the rights to the Knowledge University name. It plans to use the name for its own Internet-based higher education venture, to be aimed at individual students rather than companies.

The company is stirring debate over the ways in which colleges and universities deploy their academic resources and reputations for financial gain. Rosenfield's involvement became an issue, with several faculty members openly asking whether it was appropriate for him—a University of Chicago trustee—to personally profit from a deal in which his company would gain credibility because of its connections with the university. Rosenfield says that the suggestion he was trading on the university's reputation for his private advantage is "absurd." The trustees followed their usual conflict-of-interest policies in considering the deal, he says, and he did not participate.

Three of the university's renowned economists—Gary S. Becker, Jack Gould, and Merton H. Miller—serve on UNext.com's board of directors and own a stake in the company. The dean of the law school, Daniel R. Fischel, is also an investor. Geoffrey Stone, the University of Chicago's provost, dismissed any suggestion that Rosenfield's position or the involvement of several Chicago professors as UNext.com board members and advisers had impaired its ability to independently evaluate the deal. "Some people, like myself, take some comfort from the fact that the advisory board has people on it that we respect," he says.

Marvin Zonis, a business school professor, has some lingering concerns. "The issue of the University of Chicago lending its name to another institution to make a profit is a very problematic issue," he says. But he also notes that many faculty members do something similar when they consult for a company. And the leaders of the business school, he adds, consider the deal an excellent opportunity to extend the school's name globally.

The faculty committee examining the proposal recommended going ahead because of assurances that the University of Chicago's financial terms would be at least as good as those of any other partner. Zonis notes that the potential for a big payoff was also "a very important part of the motivation at the business school. If the reward were a pat on the back, it would have been a different story."

Under the UNext.com business model, contracts make clear that the content going to the company is coming from the institutions, not from any particular faculty member. UNext.com will pay the universities in return for receiving help from faculty members to produce courses or short lessons in topics such as how to conduct basic marketing and how to compute net present value. The university, not the professors, will own the rights to the intellectual property developed under the UNext.com contract. The money goes to the universities, which will then compensate the participating faculty members under terms devised by each institution.

Under the terms of the contract, Chicago's Graduate School of Business is expected to supply faculty expertise to UNext.com in several subject areas. Although no particular professor will be compelled to participate, Stone says the University of Chicago will consider participation with UNext.com as part of the business school faculty members' teaching responsibilities, for which they will receive compensation or release time.

Students will not receive credit or degrees from the participating universities, nor will they be taught by professors from those institutions. Eventually, they might receive credit from a new institution that UNext.com plans to create, called Cardean University. All participating universities will receive limited rights to use the courses they and other institutions help to produce, as well as the underlying technologies to deliver the courses.

The real money in the UNext.com deals will go to the institutions, not individual professors. And that, says David Brady, associate dean at the Stanford Business School, is a great part of the company's appeal. Universities make money off patents, but "they missed out on textbooks," he says, describing the way universities traditionally claim rights to professors' inventions but not their books. "That's why they're signing," says Brady. It's their way of "getting a piece of the action." UNext.com provides a way for universities to finally profit directly from the scholarly course materials that their professors produce. Each institution will receive a guaranteed stream of royalties that, according to some sources at the universities, would amount to a minimum of $20 million over five to eight years.

Should the privately held UNext.com go public, the participating universities would have the right to convert those royalties into stock, giving the institutions insider opportunities to capitalize on Wall Street's fever for Internet start-ups and for-profit education companies. Though UNext.com would not reveal what percentage of the company each university could potentially own, Rosenfield said the collective total could be 20 percent after the initial public offering. Distance learning is opening up a whole avenue of opportunity to profit from intellectual property, and "universities want something out if it," he says.
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