As the writer prepares to complete this phase of his educational career, it has been a long and storied road. However, this semester, from an educational perspective, has been one of my best learning experiences. Notwithstanding that this blog is submitted late, (:o() I would be remiss to not thank Professor Richard Gordon of the University of Delaware. He has truly stretched me intellectually and provided the needed kick in the seat of the pants when necessary.
Now.. on to intellectual property..I have a firm memory from my youth of older people making sure that they encouraged me to obtain an education. The theme that was impressed was as follows: “Once you have the knowledge, there is nothing that anyone can do to take that from you.” Wow!! Alas, none of my relatives were trained or even aware of the concept called IP.. intellectual property. Let’s agree to the premise that for a person (or entity) to take something from another, the latter must have dominion or control of the property. This “property” is not limited to the physical. In our dialogue, we have briefly discussed how a teacher may legally use copyrighted information for educational purposes. There were no objections to this concept. (Thank God..we have had enough) What of IP from the vantage point of the professor, teacher, or instructor? What does she own? As an employee of an educational institution, can a school usurp possession of their lesson plans and curriculum? What are the developments related to this? If a teacher owns the information that they teach, can they use their property for commercial gain (i.e., sell their property)?
Obviously, there are two sides to this story. I am of the belief that, due to the infancy of this issue with respect to IP, this matter will ultimately come up for review before the Nine Wise Men (uh.. people). Some of the issues here may, in fact, be steeped more in tradition than than well-settled law. Frankly, the citations cited below provide that the matter being discussed is unsettled. Let’s review the “trains of thought” that are involved in this matter.
It would be opportune to consider what the National Education Association, the nation’s premier educational entity, provides on this issue. Cynthia Chmielewski of their Office of Legal Counsel analyzes this matter as a “legal issue” that is controlled by whether the teacher, in fact, owns their lessons. It appears that this would come down to a contractual issue between the two parties. Although I am of the bias that everything translates to hard-fought litigation, it is plausible that the sides involved may invoke good-faith and develop bargaining agreements for mutual benefit.
Academia thrives on the concept of academic freedom. However, these freedoms are attributed to the institution, not the teacher. News flash: Contracts are usually drafted to the benefit of the stronger (wealthier?) party. In employment matters, an area of resolution is a determination of the professor’s employment status: employee or independent contractor; this is usually a fact-dependent determination. If a professor would be found to be an employee, then works developed under the employ of a school would be viewed under the work-for-hire doctrine. The school has claim, and we have reviewed examples of this during the semester.
The confusion and disagreement comes in due to academic tradition. There is a “teacher exception” which provides that teachers retain copyright ownership of works created while employed by an institution. It should be impressed that this is not legally binding, but common-law, if you will. To convolute the matter further, teachers are pushing to sell their educational work product to other institutions, especially online learning venues. Traditional learning institutions are feeling the pressure to defend their interests and preempt conflicts for their employees who, in their opinion, “serve two masters”.
We contrast this with the NEA’s lobbying efforts to amend the Copyright Act of 1976 to invoke the teacher’s exception to the works made for hire doctrine. The implications of this are indeed far-reaching. The NEA has adequate lobbying power, on a national and local levels. Consequently, this isn’t some grassroots fantasy, but an interest which can gain sharper political teeth.
I am of the concrete belief that the progressive institutions will attempt to invoke policy that will provide a common ground to serve the needs of everyone involved. I’m even tempted to believe that schools will implement these policies in the spirit of good faith and fair dealing. However, the possession of property is at the root of the world’s wars and a substantial percentage of litigation. When a ripened case comes before a court of competent jurisdiction, I believe, pursuant to employment precedent, higher education will prevail based on the settled nature of the work-for-hire doctrine. This, of course, presumes that the Copyright Act remains unamended. It will be up to the individual teacher, or union, to negotiate for their desired rights by means of their union or employment contact. In litigation, anything can happen, but the chance is minimal that a properly timed case will arise that will persuade the federal judiciary to give teeth to long-standing dicta by attempting to impose on private or local traditions. I have the distinct feeling that they will get this right and apply the law, which is their function.
http://link.springer.com/article/10.1007/s10755-009-9124-1/fulltext.html, 2009, September 29, 2015, May 21
http://www.nea.org/home/37583.htm#.VV47u9Pw1A8.email, release date unlisted, 2015, May 21