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In early April, the Massachusetts Institute of Technology stunned the world by announcing that it would post practically all of its 2,000 courses on a Web site open to anyone and everyone at absolutely no charge. [FOOTNOTE 1]The prospect of making available this prestigious university’s full complement of lecture notes, problem sets, syllabi, exams, simulations and lectures set off a firestorm of comment on what MIT’s initiative meant to the concept of higher education: Chat room mixers? Cyber panty raids? It’s the university of the future, and it’s happening online. A critical, but generally unexplored, issue is what MIT’s decision will mean to the intellectual property rights of the school and its professors. Central to MIT’s proposed OpenCourseWare project is the notion of shared knowledge. Students, scholars and interested souls from First-, Second- and Third-World countries can tap into the MIT materials and use them any way they see fit. Far from worrying over such use, MIT is encouraging it. Do MIT’s actions strip professors of their ability to protect the copyrights they have traditionally held in their course work? The problem is that online courses are not traditional, so traditional notions of copyright protection and ownership need to be re-examined. In the brave new world of Electronic U, it is critical for institutions of higher learning to review their IP policies to adapt to changing technologies and realities.In earlier days, when universities were more insular, it was rarely questioned that a professor working on an experiment, process or new invention would ultimately hold the patent to whatever he or she created. Safeguarded on one side by tenure and by patent law protection on the other, the professor was free to experiment with the paramount motivation of the public good in mind. Money eventually clouded the picture. Large corporations awarded universities millions of dollars in grant money to study or develop specific inventions. Universities began evolving into research centers. The symbiotic relationship between outside money and the ivory tower led to fantastic advances in the sciences and engineering. Many of these advances proved to be worth millions of dollars. Universities saw what was at stake and began claiming their share of faculty patent ownership. The idea was that the professors should not be entitled to the sole ownership of a patent created using university resources — buildings, lab equipment, teaching assistants — on university time. The university also had, undoubtedly, helped to secure grants and to publicize the invention, which would bring renown to both institution and individual. The universities sought co-ownership of patents to compensate for their contribution to the professor’s invention. Copyright ownership in software followed a similar course. It began as an assumed asset of the professor who wrote the program. Then, with the financial ante upped, universities adjusted their intellectual property policies to claim co-ownership of the software that was developed during working hours using university computers and other resources.Materials created and used in class have been the traditional copyrighted property of the professors. With the advent of online courses, however, these materials, too, could follow the same path as patents and software. CLASSIFYING ACADEMIC OUTPUT Since time immemorial, lectures, handouts, tests, books and other teaching aids have been the tools of the professor’s trade. As in the early days of on-campus-created patents, a university had no real need to stake a claim to the copyrighted treatise by the Jeffersonian scholar, even if that book was considered of seminal importance. In the past, university policies attempted to use blanket assignment clauses in faculty handbooks to lay claim to all intellectual property rights. Such unilateral claims are ineffective because of basic principles of contract. There are, however, three general ways in which a university may claim some type of ownership in a faculty member’s work. One is through a written agreement. Unlike the blanket assignments initiated by the university, the professor, as the copyright owner, can transfer all or part of his or her exclusive rights. [FOOTNOTE 2]Contractual assignments may be most common in grant-funded “sponsored research” projects. [FOOTNOTE 3] Works for hire, as defined by the Copyright Act, [FOOTNOTE 4]may be another basis for a university to claim ownership to copyrighted work. A specific work may be contracted for as a condition of employment or it may arise through circumstance, for instance, if the institution in fact directs, authorizes or controls the final product. The third circumstance is the joint work, in which more than one person shares in the rights afforded to copyright owners. Typically, jointly held copyrights are collaborations between individuals, such as co-authors, not something created between a person and an entity. Such an argument in favor of the university would be valid only if the university adds additional “creative” content to the online course such that its contribution is independently copyrightable. Merely copying and posting it to the Internet will not be sufficient. As suggested by the American Association of University Professors, categorizing materials created for online courses as joint works is one way to approach academic intellectual property in the future. [FOOTNOTE 5]A university may reasonably demand co-ownership in materials developed for online use for the same reasons articulated in the patent realm: Materials developed at the behest of the university, with university resources, for use on a university-funded and/or -operated Web site, belong, at least in part, to the university.The case for joint ownership is especially strong in distance-learning programs. Distance learning — online courses that are offered for a fee and for credit, often counting toward a degree — is a growing movement among universities large and small. There are a handful of virtual universities — that is, universities with no bricks-and-mortar counterparts — in operation. The newest perhaps is Yorktown University in Hampton, Va. [FOOTNOTE 6] Some schools, such as the University of California at Los Angeles [FOOTNOTE 7]and Princeton University, [FOOTNOTE 8]have been operating independent distance-learning programs for several years. Other schools have formed consortiums to bring courses to the Web. Columbia University, the University of Chicago and the University of Michigan, for example, are part of the Fathom Knowledge Network, [FOOTNOTE 9]which offers courses consisting of streaming video clips, chat rooms for real-time exchanges between students and professors, graded assignments and several other aspects of the traditional classroom translated into cyberspace. The translation of the traditional to the new medium is critical. There is more to a distance-learning program than just scanning in copies of lecture notes or test problems. Professors accustomed to leading class discussions in person may be required to convert their discussions into lectures to be taped for online distribution. [FOOTNOTE 10]Office hours tied to standard university schedules may have to be altered to accommodate students in different time zones. In other words, professors will be asked to perform specific actions or develop specific materials at the direction of the universities in order to fulfill the promise of distance learning. What MIT is offering is more far-reaching. MIT is not putting a select number of courses online. All courses are to be made available over the next decade. The school is not charging a fee for users to access the materials, even though the cost to the university will be an estimated $100 million. Video lectures may be available, but only as one more piece of downloadable data, such as a test or notes, not as a class requirement. Participation by faculty is voluntary. Who, then, owns the copyright to the materials posted online? The university? The professor? Or both? AUDITS: A NEW NECESSITY The various permutations of academic intellectual property present in the online landscape call for universities to conduct IP audits and review the policies governing such properties. Before deciding who will have the exclusive right to reproduce, disseminate, perform, display or create derivative works [FOOTNOTE 11]from online copyrighted material, the university must first determine which parties have an interest in the negotiation of ownership. Obviously, the university and its faculty are interested parties, but so too might be students, alumni or, in the case of public institutions, state legislatures. Current and former students may resent the widespread distribution of coursework as a cheapening of an education they labored as high school students to attain and as college students to digest. State legislatures may frown on taxpayer-funded courses — being given away gratis. Once the interested parties are identified, the university then has to classify what types of intellectual property are being developed. Are they course materials, inventions, software or something else? For each type of intellectual property, the university must then figure out who owns it, and what factors will establish ownership, such as the level of university support, through infrastructure or direction, needed to create the work. MIT’s bold proposal challenges our notions of what it means to earn a university education or a university degree. It rejects the presumption that knowledge is proprietary. It invites everyone to pass through its ivy-covered portals. The potential to reach a global population is limitless. Thus, resolving issues of ownership of IP rights in the new university is essential to the university of the future. Paul Coggins is a litigation partner in the Dallas office of Fish & Richardson. He specializes in complex civil and criminal litigation. ::::FOOTNOTES:::: FN1Carey Goldberg, “Auditing Classes at M.I.T. on the Web and Free,” N.Y. Times, April 4, 2001, at A1. FN217 U.S.C. 201(d). FN3American Association of University Professors, “Statement on Copyright,” www.aaup.org/spccopyr.htm. FN417 U.S.C. 101. FN5 Seen.3, supra. FN6Judith Malveaux, “Area’s First Virtual Campus Starting Classes in June,” Daily Press, May 29, 2001, at C1. The URL is www.yorktownuniversity.com. FN7www.ucla.edu. FN8www.princeton.edu. FN9www.fathom.com. FN10Valentina Zio, “A Revolution Under Way,” Wellesley Townsman, Oct. 19. 2000, at 31. FN1117 U.S.C. 101, 103.

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