Intellectual Property and Online Learning

Intellectual Property and Online Learning in Higher Education

The account hereafter discusses the complex issues relating to intellectual property in the context of higher education with a focus on the new implications created by the proliferation of online learning strategies. After a concise discussion on statutes relating to intellectual property law, the account proceeds into an assessment of some of the policies in place regarding intellectual property at the University of Cincinnati, Brigham Young University and University of Louisville. This section reveals the variant of interests concerning both scholastic pursuit and profitability for universities. This also underlines the debates delineated in the following sections, which relate to the political and philosophical disputes around which the online use of intellectual property is defined. Namely, this discussion casts the notion of intellectual property as an economic commodity against the evolving economic prerogative of the knowledge economy, both of which are directly impacted by the mainstreaming of online learning. This discussion produces a set of recommendations on how best to pursue greater balance where these seemingly divergent interests are concerned, especially where furthering the goals of higher education is concerned.

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 all are having a bearing on the rising complexity of the issue at hand. Universities must deal with this complexity firsthand, both with respect to the defining of intellectual property for the student body and with respect to creating standards for ownership relating to faculty and staff. Both of these matters are only cast into further complexity by the impact of online learning or distance education, a method for higher education instruction that has grown exponentially in use concurrent to 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 said property for the purposes of educational and social progress.

Statute Summary:

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 man has 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)

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 this is a necessary protection 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. Such is to say that there is good cause in light of changing technology to once again exhaustively re-examine intellectual property as a principle and as 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 the text by 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)

Morison goes on to note though that there is a need for a more refined discussion on what defines 'fair use,' particularly given the implications of 'distance learning' to 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 responsibility of the student to site 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. Indeed, the terms defining intellectual property law at the state level typically connect state governments or legislatures more directly with the will of university systems. So demonstrates the article by McNelis (2001), which 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. So states McNelis, who observes that "My own employer, the State System of Higher Education (SSHE) in Pennsylvania (the state-owned system, not the privately chartered Penn State University), 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 would indicate, incline many professors in the state of Pennsylvania to seek out independent channels through which to protect their ownership over works used for educational purposes. Ultimately, this would reveal some of the reasons that intellectual property remains such a divisive issue, with the controlling entitlement and profitability denoted by this entitlement 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 there from.

Still, to an extent, the issues that contextualize distance learning are not new to educational institutions. According to the text by Banas & Emory (1998), there is a history to distance education that suggests scholars have grappled with these questions for well over a century now. According to Banas & Emory, the connection between distance learning and intellectual property is one that has received considerable philosophical attention over the course of that time. Banas & Emory remark that "although distance learning may be thought of as a contemporary phenomenon in education, its domestic origin can be traced to the deelopment 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)

And for the instructor, the opportunities which are presently available to him or her as a product of these technologies are diverse in nature and providing of a greater arsenal of instruments for gaining students' attention and gauging individual learning needs. This is to say that "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, 486) This multitude of applications reflects an opportunity for a progressive instructional mode, in which these varying computing tools offer the chance to distill individual learning strengths and needs. However, these opportunities are also rife with legal complexities and philosophical quagmires. So is this reflected in the shifting approach to legal considerations on 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)1 severely limited the use of copyrighted materials in distance learning. In 2002, the Technology, Education, and Copy- right 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 class- room." (Johnson, p. 66)

In the section hereafter, the research considers the implications of this orientation for practicing universities.

We can see that in real and applicable cases, the statutes created by the SSHE and the TEACH Act have relevance to university proceedings on the subject. The University of Cincinnati, Ohio (2005) identifies this as a central concern in its official university Copyright Policy. This impacts the ownership status of materials created by university personnel but creates a far looser set of terms than that which is proposed by the SSHE above, seeming more to align with the relaxing standards implied by TEACH. 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)

This seems to specify that where intellectual property is created under the auspices of university coursework or using university resources, it is appropriate to view intellectual property as belonging to the university. Where online education is concerned, this may suggest lesser restrictions in the way that this material may ultimately be used by multiple parties. The discussion here implies the need for balance whereby universities employing originally created materials for online cources must protect their own interests without violating those of their personnel. This challenge is further highlighted by the Brigham Young University 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. All administrators, faculty, staff, and employed students are defined as university personnel. Administrative title substitutions, such as director for dean and supervisor for chair, will apply in appropriate sections of this policy statement." (Brigham Young University, p. 1)

These definitions are central to understanding the way that universities navigate some of the stickier 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 as this becomes a way for university to cut many of the standard costs of providing classroom education while still possessing a controlling financial interest in materials used to accomplish this goal.

So is this demonstrated by the policy in place at the University of Louisville (1998), where the phrasing seems to handle the question of intellectual property created by faculty or students with extremely delicate terms. This is because the inherent assumption with intellectual property as a concept is that might drive some economic value through an intangible commodity. It therefore falls upon the university to preemptively define the terms around which this can be done without compromising the rights of those who create intellectual property under campus jurisdiction. To this task, the University of Louisville denotes 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 of Kentucky 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 that ability to quantify gains there from according to online enrollment gains.

Politics:

The discussion over intellectual property usage in the university context, particularly in light of the above delineated university policies, denotes that the necessarily present economic dimensions of this issue carry significant political implications. As noted earlier in this account, notions of 'intellectual property' are often tied into certain cultural, social and ideological features of a time and place. Today, the accessibility to intellectual property created by the internet and the interaction of global cultures with decidedly different ways of commoditizing intellectual property are both creating a complex political debate.

Certainly, one of the greatest challenges facing educational institutions is the evolving state of intellectual property within the context of online education. Perspectives on material located on the web during the educational process may differ according to generation and culture. Accordingly, Bruwelheide (1999) would project a set of obstacles up ahead of educators as web access and the sheer breadth of information available in this medium both continue to grow exponentially. Bruwelheide identifies this as a crossroads for the academic community, contending that "the electronic environment is currently forcing educators at all levels to revisit issues concerning intellectual property. Quick availability of information and data through the Internet has changed the way the general public views information since it is in seemingly endless supply through use of computers on anyone's desktop. Thus, faculty and students alike are faced with an endless, figurative smorgasbord of materials in varied formats. A dilemma concerning intellectual property occurs when owners' rights collide with users' rights and the public need to access and use resources." (Bruwelheide, p. 1)

This is having a significant impact on the way that students conduct research, even to the extent that some philosophical divergence may be occurring between educators and students in higher education contexts. Here, two distinct priorities appear to be at play, with the ownership of intellectual property and the authority to produce that which might be considered academically credible intellectual property both bearing relevance to a rather complex discussion. Even as educators work to convey traditional notions about source evaluation, citations and referencing, students flock toward informal databases such as Wikipedia, study note sites and even social networking forums in order to acquire information. Whether in an academic pursuit or for personal reasons, students are increasingly and reflexively prone toward the use of these online communities which have dispensed with the traditional notion of intellectual property in favor of knowledge economy.

The lack of political consensus on how to use and view intellectual property online has only been magnified by the issues relating to distance learning. Here, Salomon (2007) reports, certain dimensions of the online learning methodology have yet to be resolved under the terms of this debate. Salomon provides the research conducted here will a general overview of some of the legal considerations that surround online education's use of certain copyrighted materials. Today, there is some level of complexity associated with this matter owing to the hazy claims that may be laid upon materials used in a certain way. According to Salomon, "Copyright law provides a general framework for determining the ownership of various intellectual property rights. Although the law regarding general interest programming is relatively well settled, complex questions concerning copyright ownership arise when telecourses integrate live lectures and preexisting materials. The ownership picture is further clouded when groups record programs for tape delayed viewing and archiving. As a general rule, parties should enter into written agreements with producers, professors, students and all other contributors. Each agreement should specifically delineate the ownership of intellectual property rights in the programming itself and the materials integrated into the programming. Absent such agreements, ownership questions could ultimately be decided through litigation." (p. 6)

Naturally, there is a strong interest in the academic setting to make litigation a last resort. Therefore, it is increasingly incumbent upon both those issuing materials for online courses and those looking to use previously existing materials for their own courses to take the proper steps to ensure that protection has been registered or that permission has been received.

Critical Analysis:

This debate carries significant implications beyond just the way the information is generated. To a point that is certainly not lost on lawmakers or universities, changes in the treatment and creation of intellectual property stand to impact the way that certain revenues are drawn. Such is to say that it is not simply technology or culture which are shifting but perhaps most importantly, economic interests. This has a significant bearing on the treatment of intellectual property in higher education and in the increasingly population context of online learning. Quite to the point, profitability is at the very root of most policies relating to intellectual property in the university setting. As Strom (2002) points out, "in recent years, issues concerning the ownership and control of intellectual property on campus have become more complicated and pressing as college administrations step up efforts to profit from the research, scholarship, and teaching of the faculty and staff. As a result, higher education unions must start to pay close attention to legislation, court decisions and campus policies concerning intellectual property and to protect their members' interests through collective bargaining. This is true both at senior colleges and universities and, with the growth of distance education at community colleges, at two-year colleges as well." (Strom, p. 1)