Intellectual Property and Online Learning in Higher Education

Introduction

The concept of intellectual property is inherently complex. Questions about the ownership of otherwise intangible commodities — such as ideas, creative endeavors, research, composition, inventions, or art — create a tangle of legal, philosophical, and economic issues. Today, the impact of technologies such as the internet, the effect of globalization on cultural perspective, and the always-shifting mores of economic entitlement are all bearing on the rising complexity of the issue at hand. Universities must deal with this complexity firsthand, both with respect to defining intellectual property for the student body and with respect to creating standards for ownership relating to faculty and staff. Both of these matters are cast into further complexity by the impact of online learning, or distance education — a method of higher education instruction that has grown exponentially in use concurrent with the proliferation of web technologies.

As the discussion hereafter will show, legal statutes, university bylaws, and ideological debates all center on the often conflicting interests of generating financial revenue from intellectual property and using that property for the purposes of educational and social progress.

Before proceeding to a more extensive discussion on the subject, it is appropriate to acknowledge that ideas about intellectual property and the commoditization of the abstract have been in a constant state of flux throughout modern history, with legal statutes reflecting as much. So long as people have attempted to draw profitability and protection from art, ideas, and inventions, a debate has persisted as to how best society might compensate the creator. On this point, Young (2010) notes that "the codified rules and laws allowing an author or publisher to claim exclusive rights to a literary work — what we now call 'copyright' — did not develop until the 18th century, long after the printing press was invented. And since then the notion has been challenged again and again — sparking controversy long before the latest disputes over the pirating of music, movies, and other material over high-speed digital networks" (Young, p. 1).

Statute Summary

Accordingly, Young points out that cultural and ideological differences — not to mention differences in economic interest — have long underscored divergent opinions on intellectual property. Where some have argued that copyright protection is a necessary safeguard for viable economic commodities, others have contended that intellectual property serves only to propagate hierarchies of information and knowledge. Certainly, in the context of higher education, it is appropriate to remain always vigilant of hegemonic modes of dispensing information. There is good cause, in light of changing technology, to once again exhaustively re-examine intellectual property as both a principle and a practice as it relates to the experience of the student.

Where federal statutes are concerned, there are specific protections for expansive use of intellectual property within the context of education. Whereas certain restrictions might apply to the use of intellectual property for reproduction or commercial distribution, education is viewed as a context where use of intellectual property is largely unrestrained. According to Morrison (2000), "under U.S. law, faculty and students have rights to use copyrighted intellectual property for educational (non-profit) activities called 'fair use' rights. The Library of Congress Copyright Office publishes guidelines on its Web site for fair use by educators and students, as well as information for authors who wish to register the copyrights to their material" (Morrison, p. 1).

Morrison goes on to note, however, that there is a need for a more refined discussion of what defines "fair use," particularly given the implications of distance learning for the protection of intellectual property. Distance learning, typically conducted through online classes, is creating a virtual classroom in which material is ever more vulnerable to cut-and-paste usages. And with authorship of class materials in distance learning often unclear, so too is the student's responsibility to cite certain sources becoming less clear.

While clarity is not as much an issue for the professoriate, economic issues of ownership become apparent when considering state-level statutes. The terms defining intellectual property law at the state level typically connect state governments or legislatures more directly with the will of university systems. This is demonstrated by McNelis (2001), who points to the university and its advocacy agencies as the overarching forces in commoditizing intellectual property created by university personnel. According to McNelis, there has been intensive disagreement about ownership rights as they relate to the creation of new academic materials, with the controlling interest of the university system demonstrating the primacy of its economic interests. McNelis observes that "My own employer, the State System of Higher Education (SSHE) in Pennsylvania, attempted in the fall of 1999 to assert full ownership of all creative materials, digital or otherwise, generated by the faculty; that is, proposing that 'faculty must disclose in writing the intellectual property in which the University may have an interest before it is created.' The faculty interpretation of this proposed amendment to its collective bargaining agreement was that this seemed preposterous: to inform the administration at the moment the project was first mentally conceived, and to require us [the faculty] to announce the existence of an idea immediately upon conception so that the administration could dictate the form and content of our own work to us before we started it" (McNelis, p. 1).

This would, McNelis indicates, incline many professors in Pennsylvania to seek out independent channels through which to protect their ownership over works used for educational purposes. Ultimately, this reveals some of the reasons that intellectual property remains such a divisive issue, with controlling entitlement and the profitability deriving from it constituting a distinct economic interest both for universities and those whom they employ. Certainly, as the market for online and distance learning has grown, so too has the imperative for interested parties to capitalize from it.

Still, to an extent, the issues contextualizing distance learning are not new to educational institutions. According to Banas and Emory (1998), there is a history of distance education suggesting that scholars have grappled with these questions for well over a century. The connection between distance learning and intellectual property is one that has received considerable philosophical attention over the course of that time. Banas and Emory remark that "although distance learning may be thought of as a contemporary phenomenon in education, its domestic origin can be traced to the development of correspondence study at Pennsylvania State University in 1892. As delivery technologies have emerged, educational institutions have integrated them in the expanding use and role of distance learning. While once considered non-traditional education, distance learning is most certainly becoming mainstream, and with that new status, a whole set of issues come into play for all participants and stakeholders" (Banas & Emory, p. 1).

For the instructor, the opportunities presently available as a product of these technologies are diverse and provide a greater arsenal of instruments for gaining students' attention and gauging individual learning needs. As Berson (1996) notes, "the computer has become a virtual teaching forum of great flexibility, with ever-improving technologies allowing for avenues of student use which include drill and practice, tutorials, study guides, games and simulations, inquiry and problem solving, graphics, and word processing and writing" (Berson, p. 486). This multitude of applications reflects an opportunity for a progressive instructional mode, in which varying computing tools offer the chance to identify individual learning strengths and needs. However, these opportunities are also rife with legal complexities and philosophical quagmires, as reflected in the shifting legal approach to the subject.

According to Johnson (2006), the legal status of materials used for the purposes of higher education via online channels has been in flux as usage opportunities have revealed themselves to educators, universities, and lawmakers. Johnson reports that "in 1998, the Digital Millennium Copyright Act (DMCA) severely limited the use of copyrighted materials in distance learning. In 2002, the Technology, Education, and Copyright Harmonization Act (TEACH Act) relaxed these restrictions under specific conditions. These two laws significantly changed the way educators could use copyrighted material in the digital classroom" (Johnson, p. 66).

The statutes created by the SSHE and the TEACH Act have direct relevance to university proceedings on the subject. One university's official Copyright Policy (2005) identifies this as a central concern, impacting the ownership status of materials created by university personnel but creating a far looser set of terms than those proposed by the SSHE — seeming more to align with the relaxed standards implied by the TEACH Act. Here, it is stated that "the university claims ownership as works for hire under the copyright laws of the intellectual property rights that arise from works created as the result of specific assignments; works supported by a direct allocation of university funds for the pursuit of a specific project; and works that are specially commissioned by the university. A faculty member's general obligation to produce scholarly works does not constitute a specific university assignment" (UC, p. 1).

University Policies on Intellectual Property

This specifies that where intellectual property is created under the auspices of university coursework or using university resources, it is appropriate to view that intellectual property as belonging to the university. Where online education is concerned, this may suggest lesser restrictions on the way such material may ultimately be used by multiple parties. The discussion implies the need for balance whereby universities employing originally created materials for online courses must protect their own interests without violating those of their personnel.

This challenge is further highlighted by another university's Intellectual Property Policy (2010), which denotes the need to designate appropriate uses for any financial resources garnered from internally created intellectual property. According to its stated position on personnel and intellectual property, "this policy is intended to support faculty, staff, and students in identifying, protecting, and administering intellectual property matters; defining the rights and responsibilities of all involved; and establishing support offices to provide the required assistance. It also stipulates how income generated should be distributed to the developers and to the university" (Brigham Young University, p. 1).

These definitions are central to understanding the way that universities navigate the more complex conceptual challenges relating to intellectual property. As the political and critical analyses hereafter will acknowledge, there is something of a conflict of interests for universities where intellectual property is concerned. The sometimes divergent priorities of profitability and education are particularly prominent where the design of university policy is concerned. The debate over online use of intellectual property underscores this divergence: online delivery becomes a way for universities to cut many of the standard costs of providing classroom education while still retaining a controlling financial interest in the materials used to accomplish this goal.

This dynamic is demonstrated by a third university's policy (1998), in which the phrasing handles the question of intellectual property created by faculty or students with notably careful terms. The inherent assumption with intellectual property as a concept is that it may drive economic value through an intangible commodity. It therefore falls upon the university to preemptively define the terms under which this can be done without compromising the rights of those who create intellectual property under campus jurisdiction. To this task, that university's policy states that "in the course of conducting their normal scholarly activities, University faculty, staff, other employees, and students add to the storehouse of knowledge. The University should disseminate such knowledge for the public good. The University should further protect the interests of the people of the Commonwealth through a due recovery by the University of its investment in research. Accordingly, income that may result from this activity should be used to assist the University and its employees by furthering their academic roles, as required by law and University policy" (University of Louisville, p. 1).

In one regard, the use of online channels for education actually improves both the tangible nature of intellectual property and the ability to quantify gains from it according to online enrollment growth.

Conclusion

The economic imperative imposing certain limitations on intellectual property carries highly hierarchical implications. By contrast, the economic imperative implicated by the knowledge economy and the concept of knowledge transfer represents a more collective advancement of educational institutions, their students, and ultimately the professional and public organizations which those students will serve. The online context for providing distance education conforms more directly with this idea of knowledge transfer than with the private ownership of ideas that has traditionally governed legal and university thinking.