Here is one typical situation that arises within the distance education market. If you are either an author, teacher, student, school, corporation or any other party involved in the corporate training or distance education market and you find it to be familiar, then you should read the other articles on my site under the link “Articles About Corporate Training and Distance Education.” Until you face the legal realities, you are not in a position to market your content or be the recipient of content. Although this article focuses on the education market since a good deal of the content originates there, many of these same issues arise in the corporate training market as well since many of the materials used by corporations to train their staff have been created by academics.
The Typical Scenario
A visionary teacher working for an institution intends to develop a course as part of his or her curriculum but which, the teacher believes, will have an “aftermarket” in the distance learning or corporate training areas. The material will include the teacher’s original writing, third party research materials the teacher has used in the course, some contributions from a student assistant and input from some other departments in the institution including music and art departments since the teacher intends it to be a multimedia course.
1. The teacher’s original contributions: the rights to these clearly belong to the teacher, right? As with most things in the law, the answer is “maybe not.” And the questions to ask involve the nature of the teacher’s relationship with the institution. Is the teacher a full time teacher and if so, what are the teacher’s job duties? One would believe that it is certainly within those job duties to create a class curriculum and if the teacher were thus a bona fide employee, one could argue that the rights to the work that the teacher creates within the course and scope of his or her employment then belong to the institution under the work made for hire rules of the United States copyright law. On the other hand, what if the teacher is an adjunct teacher and is thus not an employee in the legal sense but merely an independent contractor? If such be the case, then absent an expressly worded work made for hire written and signed agreement, one could argue that the rights to the teacher’s work belong solely to the teacher and that at most, the institution has some non-exclusive right to offer a class based on the material. Read “Work Made for Hire Agreements.”
2. Third party research materials: if offered in a face-to-face, classroom setting, the use of third party materials may be protected under the “fair use” doctrine. Keep in mind, however, that this protection is not absolute and if the classroom curriculum then finds its way into other formats including perhaps course notes sold by the teacher or some commercial enterprise, such “fair use” protection may not exist. And as to uses outside the classroom, there is some significant doubt about the availability of “fair use.” Read “Fair Use In Online Education And Web Based Training.”
3. Contributions from students and teaching assistants. To the extent that a student or a teaching assistant has contributed original materials such as writing, artwork etc., the presumption is that the student or T.A. owns all rights to that material. But it is a rebuttable presumption, at least as far as the T.A. is concerned, since it may be that the teaching assistant has been paid as an employee by the teacher or the institution and thus the T.A.’s work may qualify as a work made for hire and thus all rights would be owned by the teacher or the institution, as the case may be. However, it is often more likely that the T.A. is paid, if at all, as an independent contractor and thus, without a valid, written work made for hire agreement, the work would then remain owned by the T.A. As to students, there is often no legal means that anyone other than the student can be deemed to be the owner of the student’s work. The student is almost always unpaid and thus can never be deemed an employee of anyone, teacher or institution, and again, absent a valid work made for hire agreement, the student would retain all rights to the student’s contribution to the course materials.
4. Music and art from other departments. Initially, the same questions that arise with regard to this teacher’s contributions arise with other institution departments as well. Those questions revolve around the nature of the contributor’s relationship with the institution. And as those questions are resolved, that in turn has implications for the relationship of these contributions to the teacher’s work since there may be situations in which some of the contributions are made by bona fide employees of the institution and some by independent contractors. As to the use of third party materials in any project, read “The Use Of Protected Materials In Multimedia Corporate Training And Distance Education Projects.”
In order to resolve all the complexities of these myriad relationships and the subtleties that surround those relationships, there must be a solid and legally valid “paper trail” amongst all the contributors and the institution. All the parties must agree to who owns what rights and then make contractual arrangement for the exploitation of those rights and the consequent payment of the negotiated shares to the various contributors. What you want to end up with is a clear set of rights and having one party designated as the sole party to deal in and with those rights with the rest of the world. If more than one party can make deals, as a practical matter no deals will actually get made. Non-exclusive administration of rights is a nightmare.
Many institutions and faculty alike are simply way out of step with the marketplace. Often, there are no agreements of any sort in place, the parties relying on ancient “policies” that are more likely than not unenforceable and invalid.
If the parties are intent on exploiting the course material and capitalizing on the distance education market, then the time has come to “get modern” and engage in a serious review of the methodology of creating, owning and exploiting of course material.
© 2000 Ivan Hoffman