INTELLECTUAL
PROPERTY AND CONTRACTS WITH
THE
DIVISION OF CONTINUING AND DISTANCE EDUCATION
During the October 2000 general meeting I spoke briefly about concerns with the contracts faculty have been signing with the Division of Continuing and Distance Education (DCDE) concerning ownership of copyright for the courses we develop. Although changes will be made to these contracts, the issues are not yet resolved and I would like to bring the membership up-to-date and outline some of the concerns of CAUT and your AUFA executive.
Some relevant history
The current contract used by DCDE includes the statement, under item a), that "Acadia University, through the Division of Continuing and Distance Education, holds copyright for all DCDE course material…" This is in violation of the collective agreement. Of relevance are Articles 44.03, which states that contracts with DCDE "shall not violate the terms of this agreement;" Article 33.20, which specifies that "Ownership of Intellectual Property and excluded Intellectual Property and all rights pertaining to ownership are vested in the Faculty Member(s) who is/are the creator(s) thereof…;" and Article 33.22 (a & b), which explicitly excludes the university from using our intellectual property (IP) for distance education. In November of 2000, your executive asked the joint committee for the administration of the 10th collective agreement to interpret current practise in light of these articles and on January 10th, the committee ruled that DCDE contracts must be changed to "recognize that ‘the courseware belongs to the creating faculty member’ until it is sold" (Interpretation Memorandum no. 10.01). Since then, the University’s Industry Liaisons Officer, Helen Lee, working with the Director of DCDE, Nancy van Wagoner, has drafted a completely revised contract. This has to be revised further, after consulting with the busy University lawyers, before getting senior administration approval and becoming policy. [For a sense of senior admin’s position on this issue, it is interesting to note, that according to This is Continuing Ed (a DCDE self-study submitted to the Academic Program Review Committee, available in .pfd format at the bottom of http://conted.acadiau.ca/home/about-us.html), 10 years ago at a meeting of the board of directors of Continuing Education chaired by then-V.P. Dr. Kelvin Ogilvie, the board approved a copyright policy and sought a memorandum of agreement to add to article 33.20 a statement giving the university copyright for distance education course material.]
One conceivable "solution" to the current wording of the DCDE contract would simply make explicit past practice. This would change the $1000 currently paid from a development fee (per-three-credit hour course) to the purchase price for your intellectual property. In essence, you would sell your course for less than the fees that will be paid by the first two students to take it ($482/course + $100 "Distance education fee"). With correspondence courses, there was little development and little was physically given to DCDE when courses were developed, so this may not have been a concern. With online courses the situation has changed, and herein lies the problem.
If all you do is hand over notes, etc., from courses you have been teaching on campus for years and DCDE staff are working to convert this IP into an online course, developing the web pages, converting information and assignments into electronic form that can be delivered over the internet, etc., then perhaps the University should own at least a share in the course they create using your know-how. Or, if your course materials are already put in electronic form, as AA has strongly encouraged us to do, then it would not involve much effort on the faculty member’s part to pass these over to DCDE for an easy $1K. But is it worth it?
The issues
At our October general meeting, I directed people to read the CAUT bulletin commentary "Ownership rights – The sale of online course content" by Tom Booth and Jim Turk. That piece can still be found on line from the CAUT bulletin archives under the September 2000 commentary (http://www.caut.ca/english/bulletin/2000_sep/bullframe.htm). Among the points made in their commentary, Booth and Turk warn that with on line courses, development and delivery can be separated, and once a University gets ownership of the course, the University could (in theory) hire anyone, at any rate, to deliver it unless protections are in place. This is the familiar problem of casualization. While there may be no intention at present of doing this, there is also little in place to prevent it.
We will also gain some control over this threat once part-time employees are brought into our bargaining unit. By bargaining for part-time employees to be well paid, casualization will be a less financially tempting option. The contractual requirement that DCDE "shall hire only part-time instructors who have been recommended by the Head of the appropriate department" (Article 44.04) currently offers some protection. We must be careful that this restriction is maintained in future contracts. The current DCDE contracts also give the director of DCDE power of approval over course changes. Although this appears to be an infringement of the rights of the department head/director (in violation of article 15.50a of the collective agreement), a challenge to this has yet to be made. We will have to see if this stays in the next version of the contract.
As far back as 1990, DCDE "was interested in developing more complete undergraduate and graduate programs, but it was clear that the university was not ready to consider this option, and it upheld regulations limiting the number of correspondence courses students could offer toward a degree program." (p. 30, This is Continuing Ed). It is important that these limits on how many distance courses students can use toward an Acadia degree are maintained, else we could even see enrolments drop (and thereby departmental budgets based on FCEs) as students could avoid time-table conflicts by taking some of their course on-line from the profit-driven DCDE.
Final comment
To yield to the temptation of a $1000 development or IP sale is analogous to the shortsightedness of politicians who cut funding to education to help their current financial needs, something many of us have understandably railed against. I’m sure many of us could use an extra $1000, and it may even seem like a fair bit of money for one course we have already developed. Collectively, however, we could be eroding the quality of our universities. As Booth and Turk conclude, "some measure of collective restraint on the use and sale of online course material is necessary to preserve the teaching profession and the quality of post-secondary education. This is a trade off that must be made. The alternative is bleak." The environmentalist mantra comes to mind. "Think globally. Act locally."
Peter McLeod