October 2008

Instructional Technology Council

One Dupont Circle, N.W., Suite 360
Washington, D.C. 20036
202-293-3110
www.itcnetwork.org

The Instructional Technology Council has had significant help in actualizing this research. Special thanks go to Wayne County Com-
munity College District (WCCCD), Dr. Curtis L. Ivery, Chancellor. Dr. Stephanie Bulger (Principal Investigator) conducted this research
with assistance from talented and dedicated research associates, Antwan Jones and Christopher Shults, who deserve special mention.
Ronda Edwards (Director of Academic Programs, Michigan Community College Virtual Learning Collaborative) must be acknowledged
for her insights and encouragement. Fred Lokken (Chair-Elect, ITC Board of Directors and Associate Dean for e-Learning) and Travis
Souza (Coordinator of WebCollege) of Truckee Meadows Community College provided valuable technical assistance. A number of
WCCCD colleagues contributed feedback, information, or read drafts of the report and provided helpful suggestions. We thank them
as well.

About Wayne County Community College District

The Wayne County Community College District (WCCCD) is the fastest growing community college in the nation serving residents of
Wayne County and surrounding communities. The District has five campuses and numerous off-site locations conveniently located
throughout Wayne County. WCCCD serves 32 cities and townships. The District has more than 90 programs leading to either an as-
sociate degree or certificate in various disciplines. For more information, please visit www.wcccd.edu.

About the Instructional Technology Council

The Instructional Technology Council (ITC) provides leadership, information and resources to expand access to, and enhance learning
through, the effective use of technology.

An affiliated council of the American Association of Community Colleges, ITC represents higher education institutions within the
United States and Canada that use distance learning technologies. Based in Washington, D.C., ITC was founded in 1977 as the
Taskforce for the Uses of Mass Media for Learning. As instructional technology has evolved, so too has ITC which has provided
national leadership for more than 30 years on an array of distance learning/e-learning issues. With nearly 500 colleges and
universities, ITC continues to grow, along with higher education interest in electronically-mediated instruction. For more information,
visit www.itcnetwork.org.

Copyright 2008 by the Instructional Technology Council.

All rights reserved. No part of this report may be may be reproduced or transmitted in any form or by any means, electronic or mechanical, including
photocopying, microfilming, recording or by any information storage or retrieval system, without prior permission in writing from the publisher. Spe-
cific permission must be obtained in writing from the Instructional Technology Council for such copying. Direct all inquiries to ITC, One Dupont Circle,
N.W., Suite 360 , Washington , D.C. 20036 , www.itcnetwork.org.
Introduction
On behalf of the Instructional Technology Council (ITC), Dr. Stephanie R. Bulger, vice chancellor
in the Center for Distance Education and Learning Technologies at Wayne County Community
College District (WCCCD), developed a survey for community colleges based on the increased need
for national data related to intellectual property and the ownership rights of online courses. The
survey was designed to assess the extent to which administrators and faculty at member colleges of
the Instructional Technology Council (ITC) are knowledgeable about the practices and procedures
of intellectual property rights. Because the ownership rights of an online course are determined by
intellectual property law, “intellectual property rights” is used in this report to mean the broad range
of ownership rights to an online course.

Determining what intellectual property rights issues need to be addressed when a college decides to
deliver online courses is crucial given the rapid and continuing growth of online education in two-year
colleges. However, previous research studies are typically either directed toward four-year colleges,
have scant information on two-year colleges, ask only general questions regarding intellectual property
and ownership rights, and/or are more than five years old (Kelley 2002; Sanders & Richardson 2002).
WCCCD worked with ITC to revisit the issue of intellectual property policies specific to the ownership
rights of online courses within community colleges to identify policies, practices, and best practices.

How the Survey was Conducted

Data were gathered primarily through a Web-based and paper survey to all ITC member colleges from
December 2007 through February 2008 (see Appendix A for survey questions). WCCCD developed
the survey instrument with input from the ITC Board while Truckee Meadows Community College
developed the Web-based survey. Colleges were asked to submit an electronic or facsimile copy of
their policies. Fifteen colleges provided policies outlining intellectual property rights. Content analysis
was used to generate thematic similarities from the policies.

Distribution of Results
The final results will be presented in Fall 2008 in an ITC audioconference. ITC will distribute the
results in a publication to the presidents of the American Association of Community College (AACC)
and to ITC member institutions.

The Data
The total number of survey responses from community colleges was 70. There were 82 institutions in
this study, 85.4 percent of which were of which were Associate’s or Associate’s Dominant institutions
based on the Carnegie Classification of Colleges (www.carnegiefoundation.org/classifications/). State
consortia and system offices accounted for 3.7 percent and 11 percent identified themselves in other
Carnegie categories.

1
 2008 Survey Results
GENERAL INFORMATION

Institutions Surveyed
Most respondents classified themselves as Associate’s or Associate’s Dominant colleges (85.4
percent). Multi-campus district (55.7 percent) and single campus (38.6 percent) were the institutions
most represented in the data. Multi-college district institutions represented the smallest percentage
(5.7 percent) of the sample. Multi-campus districts consist of multiple campuses that operate under
a single college structure (Cohen & Brawer 2003). Multi-college districts have independent college
campuses that operate under a centralized district administration (Cohen & Brawer 2003).

Online Course Enrollment

Sixty-seven of the respondents estimated the total number of students enrolled in online courses for
Fall 2007. The average number of students enrolled in Associate’s degree colleges was 4,099. The
average online course enrollment for multi-campus districts was 4,745 students, significantly higher
than the average online course enrollment for single campuses, 2,334. The average online course
enrollment for multi-college district institutions was 10,197.

Online Course Development

Respondents selected whether
designated faculty, full-time faculty,
part-time faculty or a development team
developed courses in their institutions.
The vast majority selected full-time
faculty (78.6 percent) and part-time
faculty (70 percent). A development
team (32.9 percent) was more likely
than designated faculty to develop
courses (20 percent).

Teaching Load –
Online Courses
Respondents selected up to three ways
that teaching online courses fit in a
faculty member’s overall course load:
as an overload, as a regular load, or as
an entire load. The most said online
courses fit with a regular faculty load
(91.4 percent). A sizable number,
47 percent, indicated that online
courses could account for the entire
course load taught. Another 42.9
percent said online courses could be
taught in addition to a faculty member’s
regular load (i.e., overload).

2
Compensation
Most institutions (56.5 percent) paid faculty $501-$2,499 to develop an online course. More than
a quarter of the institutions did not pay faculty (27.5 percent) and few paid them up to $500 (three
percent) or above $2,500 (13 percent).

Nearly three-fourths of institutions (74.3) pay faculty to develop an online course the first time it is
developed and few pay them to create learning objects (37.1 percent) or to modify a course (24.3
percent). Institutions also use publisher’s content (71.4 percent) and work-for-hire agreements (32.9
percent) when developing online courses.

INTELLECTUAL PROPERTY RIGHTS (IPR) POLICIES AND PRACTICES

Clarity of Ownership
Most of the survey participants (71.4 percent) indicated that it was clear who owns the intellectual
property rights at their institution.

Ownership Determination
When asked how ownership rights were determined, only 31.4 percent of the respondents indicated
that their college workload policy stated ownership or that select individual contracts (20 percent) and
union contracts (21.4 percent) helped determine ownership. Less than 10 percent (5.7) were unaware
how ownership was specifically determined.

Domains of Ownership
Respondents indicated how ownership was determined on several domains: course syllabi, classroom
assignments, course outlines, exams, class announcements, test components, lectures, tuition
revenues, re-usage rights of courses, distribution rights, derivative works, reproduction of copies used
in course, public display of course, and sales revenue generated from courses. Respondents identified
whether ownership on these domains was by the institution, faculty, joint, determined on a case-by-
case basis, or unknown.

3
 About a third of respondents indicated that, of Solely Institution
N = 69*
the 14 domains at their college, the institution
was the sole owner of syllabus (29 percent),
reproduction of copies (29 percent), and
revenue from sales (31.9 percent). In addition,
the course outlines (39.7 percent) yielded the
next highest percentage of responses. The
majority, however, indicated that the institution
owned tuition revenue (88.4 percent) as its
chief domain.
*N = 68 for Course Outlines

Respondents indicated that faculty owned Solely Faculty

N = 69*
announcements (31.9 percent), lectures (21.7
percent), examinations (20.3 percent), re-usage
(20.3 percent), public display (18.8 percent),
and assignments (18.8 percent).
*N = 68 for Course Outlines

Joint ownership was manifested in course- Jointly

N = 69*
specific domains such as assignments (43.5
percent), examinations (42 percent), course
outlines (39.7 percent), text components
(39.1 percent), lectures (39.1), syllabi (37.7
percent), and announcements (34.8 percent).
Additionally, reproduction of copies (33.3
percent), and re-usage (33.3 percent) yielded
sizeable responses.
*N = 68 for Course Outlines

4
Case-by-case determination of ownership Case-By-Case
N = 69*
dominated the domains of distribution (23.2
percent) and revenue from sales (21.7 percent).
For these respondents, the ownership rights on
sensitive matters regarding exposure and profit
from online courses are negotiated between
faculty and institutional personnel.
*N = 68 for Course Outlines

While 71.4 percent of the survey participants Don’t Know

N = 69*
indicated that it was generally clear who owns
intellectual property rights, there was variation
in the extent to which individuals were aware
of ownership rights policies specific to certain
domains. The gray areas for those respondents
who were unknowledgable about the domains
were concentrated in the rights of distribution
(29 percent), derivative works (24.6 percent),
sales revenue (24.6 percent), and public display
(18.8 percent).
*N = 68 for Course Outlines

5
 Frequency of IPR Disputes
Respondents overwhelmingly said there had
never been an IPR dispute at their respective
institutions. In fact, 81.4 percent of survey
participants indicated they had no knowledge
of disputes over IPR, leaving 18.5 percent (13
respondents) who stated there were disputes over
IPR at their institution. The total equals 99.9
percent due to rounding error.
Of the 18.5 percent of respondents, 11.4
percent (8 respondents) recognized that there
had been less than three disputes within the last
three years, and 7.1 percent (5 respondents)
noted that there had been between three and five
disputes.
IPR Policies
Of the 70 colleges in this study, 54.3 percent
had a document that outlined ownership rights
of online courses within intellectual property
policies. This left a sizable percentage (45.7
percent) that were not aware of a policy regarding
the ownership of online courses. Of the 38
colleges that responded to the question about
training on intellectual property policies, 31.6
percent had attended workshops and seminars
that were related to intellectual property policies,
while 68.4 percent had not.
Most of the respondents (81 percent) said their
IPR policy was created after 1999, with 45
6
percent between 1999-2002 and 36 percent
after 2002. Nineteen percent were crafted before
1999.
The year the policy was created is significant
because Congress passed two monumental
pieces of legislation that have affected
intellectual property rights and policies since
the Internet began to stimulate the common use
of digital content. The 1998 Digital Millennium
Copyright Act (DMCA), criminalizes production
and dissemination of technology, devices, or
services that are used to circumvent measures
that control access to copyrighted works.
Twenty-eight percent of the 39 responses to this
question indicated that their IPR policy had been
updated to comply with the DMCA.
The Technology, Education and Copyright
Harmonization (TEACH) Act of 2002, allows
educators to copy documents or use copyrighted
materials in an online classroom setting. When
asked if the IPR policies at the host institution
had been updated to comply with the TEACH
Act, 12.8 of the 39 responses indicated that
their IPR policy had been updated.
Coinciding with the low percentage of institutions
that integrate these two acts into their policies
is the 44.7 percent of institutions with no plans
to review policies in the future. Of the 38 who
responded to this question, only 21.1 percent
were knowledgable of some plan to review IPR
policies in the future. In contrast, 34.2 percent
did not know if plans were in place to review
those policies.
When asked to rate their IPR policy on a scale
from 1 to 5, with higher values indicating
satisfaction with the policy, the average rating
was 3.8 based on the responses from half of the
respondents. This ranking is significantly higher
than the expected average of 2.5, indicating the
respondents were generally above average in their
level of satisfaction with current policies.
Most of the individuals reported that their
institutions had policies (54.3 percent). The
most popular locations of online IPR policies
were the Board of Trustee Manual and the
Work-for-Hire Clause
Nearly one-fourth of the 70 respondents reported
that a work-for-hire clause was present in
written agreements (21.4 percent), collective
bargaining agreement (12.9 percent), faculty
handbook (12.9 percent), and administrative
memorandum (11.4 percent). More than a
quarter of the respondents (29.2 percent)
reported the existence of a work-for-hire clause
in their intellectual property agreements but did
not identify a location.
Collective Bargaining Agreement. Yet, 71 perent
of respondents eschewed the choices in the
survey and reported “Other” as the location of
the policies. Two respondents reported “Web
Site” as the “Other” location. Most did not
identify a location.
Individuals reported that improvement could
be made to the policy by adding more specific
language about online courses (32.4 percent)
and removing ambiguity in the policy (32.4
percent). Nearly a quarter (24.3 percent)
reported that workshops or seminars would
improve awareness and dissemination of the
policy.
When asked about specific language in their
work-for-hire clause, individuals reported that
common language in work-for-hire clauses
existed to some extent. Work prepared within
the scope of employment (34.3 percent), faculty
signature on a written agreement (27.1 percent),
specially-commissioned work by the employer
25.7 percent), limited terms of the agreement
(20 percent), and agreement on specified
categories of work (15.7 percent) garnered
responses.
7
 Discusion
SURVEY RESULTS
The results of this survey indicate several
interesting points regarding intellectual property
rights policies and online course ownership in
community colleges. Institutional type is an
important distinction because previous surveys
focused on four-year universities, or included an
unremarkable number of community colleges
to ensure an informative discussion of these
institutions (Kelley 2002; Packard 2002;
Sanders & Richardson 2002).
These findings suggest that the development of
online courses resides primarily among full-time
and part-time faculty members at an institution.
Thus, a potential conclusion could be that
faculty members would own the material that is
produced for and within the classroom. However,
respondents indicate a wide range of ownership
models. Course-specific domains including
announcements, examinations, and lectures
yielded high sole faculty and joint ownership
responses, although the percentages were higher
for joint ownership than sole faculty.
Individuals were consistently unclear about the
usage and re-usage rights of online courses.
Responses were high for the domain of re-
usage for both sole faculty and joint ownership.
Moreover, there was no consensus as to whether
the faculty or institution owned particular
monetary domains such as rights of distribution,
derivative works and sales revenue.
Given the high prevalence of joint ownership
of course materials between faculty and the
institution in these results, one may expect a
low frequency of disputes with IPR. Indeed,
the vast majority of respondents indicated
no knowledge of such disputes. Of those
who did indicate at least one dispute at their
institution, most indicated there had been less
than three disputes within the last three years
and fewer noted three to five disputes. A low
percentage of respondents indicated that their
intellectual property policies were updated
after the passage of the Digital Millennium
Copyright Act and Technology, Education and
Copyright Harmonization Act, perhaps because
the acts refer to the use of digital content.
Notwithstanding the low incidence of disputes,
8
however, institutional policies may not be
satisfactory in their enumeration of IPR,
specifically ownership rights. For example,
individuals in this survey felt that improvement
could be made to their intellectual property
rights policy by adding more specific language
about online courses and removing ambiguity.
The literature supports more consistent and
clear language in intellectual property rights
policies that balance faculty and college rights
(Rhoades 2001). Institutions will have less
contention and conflict over ownership rights
(Bruwelheide 1999). Additionally, policies
can be supplemented with contracts or written
agreements that can be adapted to changing
circumstances (Kelley 2002; Johnson 2004;
Farnsworth & Bevis 2006).
Some of the findings of this research are
consistent with trends in current literature.
These results indicate that joint collaboration
on course development is significant at 32.9
percent. Recent literature on collaborative
courseware and content development
acknowledges that faculty members,
administrators, technology staff and other
employees often play important roles in
developing online courses (Paulsen 2002,
Moore 2007). Unbundling the tasks of course
design, assembly, and content creation through
joint collaboration is purported to lead to
uniformity, reusability, and enhanced student
learning (Maeroff 2003).
The literature also suggests that the potential
revenue gained from the license or sale of
courseware or content is an issue that IPR
policies must address, particularly because
it can be a point of contention between
administrators and faculty (Laughlin 2000;
Kelley 2000). While a few respondents noted
that revenue is assessed on a case-by-case
basis, the small number of responses to this
issue suggests that it is not a major point for
dispute at this time. Administrators in the
survey appear to be more concerned about who
has course specific ownership rights rather
than about the fiscal benefits of online courses.
It has been postulated that institutions
(universities in this instance) in unionized
environments provide greater avenues for
appropriate remuneration through more equitable
profit sharing from the sale or license of faculty
produced works (Rhoades 2001).
These findings have noted a significant gap in
the presence and adaptation of IPR policies
in community colleges. Kelley et al. (2002)
reported that 29 percent of the 68 colleges
and universities in their study were without
intellectual property policies and those
institutions with a policy had updated it to meet
emerging needs. With a comparable sample size,
45.7 percent of respondents in this research
acknowledged that intellectual property rights
policies were not present at their institution.
Equally revealing is that few respondents had
plans to update their IPR policies. Additionally,
few mentioned updating their IPR to adhere to
DMCA and TEACH Act legislation, though most
of the policies may have been already adapted
prior to the changing laws on copyright or were
complete in their language so that there was no
need for an update. Few respondents noted that
work-for-hire language was present in a variety of
specified and unspecified locations. The results
presented here show that community colleges
need to evaluate the need for IPR policies, the
efficacy of existing IPR policies, the need for
written agreements, and work-for-hire language
in existing written agreements.
To understand IPR policies, one must be
knowledgeable about the material in an
institution’s specific policy. This research
revealed an area that has received very little
attention in the literature – the need for training
on IPR. Only 31.6 percent of respondents had
attended workshops or seminars related to IPR.
Furthermore, the locations where IPR policies
may be found were limited. Less than 20
percent of respondents reported that IPR policies
could be found in the faculty handbook.
Thematic Analysis of Policies
Drawn from respondents’ surveys, 15 identifiable
online intellectual property rights policies were
analyzed to highlight thematic similarities
between the policies.
Generally, IPR were negotiated (1) as shared
agreements between faculty and college, (2) post-
hoc with executive persons of the college (e.g.,
board of trustees or president), or (3) granted to
the college and then transferred to faculty. Even
though IPR policies are somewhat strict, faculty
are generally unrestricted in the classroom.
Faculty who develop courses for exclusive use in
the face-to-face classroom owned the courses for
the purposes of instruction. However, software
created for the college by the faculty belonged to
the college.
The use of college resources were an
emergent theme in IPR policies. “Resources”
encompassed both materials and time. Thus, the
creation of faculty work products should be done
outside of time allotted for classroom instruction
and be done without the aid of college-owned
materials. Work products that were created with
college resources were unanimously the property
of the college.
Although work products were defined as uniquely
the property of the college, many institutions
referred to “equitable ratios” to evoke fairness
in deciding ownership in their IPR. There was
great variation in the extent to which faculty
could profit from their work products. Most of
the policies suggested that some payment should
go to college. The most consistent percentage
was 50-50 in community college policies. In
some IPR policies, payment would go to college,
and then the surplus (after properly allocated
through the college) would go to developer of the
intellectual property.
For specific property ownership such as
scholarship, the policies generally indicated
that work at the institution was property of
the institution. Unpublished material cannot
have a financial gain. Exceptions were personal
works that did not use institutional resources
which belonged to faculty. Lastly, even when
ownership was given to faculty, institutions
typically forbade selling of the property to
the institution itself. If there were a conflict
of interest (defined as a conflict between
college and faculty), then all of the institutions
consistently named the board of trustees or
president to dictate who owned the intellectual
property.
9
 In these policy statements, students were
also protected. Students were not coerced to
buy property created by faculty and student’s
intellectual property was the property of the
student, not the faculty or college.
Lastly, there were legal ramifications in these
intellectual property rights policies. However,
only one college policy specifically listed the
exact legal ramifications for violating IPR
agreements. In addition, only one college policy
specifically discussed its policy in tandem with
the TEACH Act and DMCA. However, many
of the policies cited the “Fair Use” doctrine
in the Copyright Act, indicating some level of
compliance in the policies with these legislative
changes.
IPR Law and Relevant Cases
Intellectual property rights are vested in
copyright law and derived from the U.S.
Constitution. Article I Section 8 states that
“Congress shall have the power … to promote the
progress of science and useful arts, by securing
for limited times to authors and inventors the
exclusive right to their respective writings and
discoveries” (U.S. Constitution). Section 106
of the Copyright Act of 1976 enumerates a
set of exclusive rights of copyright consisting
of reproducing, preparing derivative works,
distributing copies, publicly displaying work,
and publicly performing work (U.S. Copyright
Act, title 17 U.S. Code). In addition, the owner
has the right to transfer or license one or more
of these rights. The Copyright Act makes no
mention of the ownership rights of online courses
specifically, nor do subsequent statutes such as
the Digital Millenium Copyright Act of 1998 and
the TEACH Act of 2002. Who owns faculty-created
works, however, has been debated in litigation
and the press.
Neither copyright law nor cases that seek to
interpret it have been conclusive, failing to
provide clear answers on who owns faculty work,
due to the work-for-hire doctrine. Section 101
of the Copyright Act states that a “work for
hire” is a work prepared within the scope of an
employee’s employment or if a work is agreed
upon in a written agreement signed by both
parties that it will be a “work-for-hire” (U.S.
Copyright Act, title 17 U.S. Code).
10
In Community for Creative Non-Violence v.
Reid, a 1989 case, the Supreme Court affirmed
the judgment of the Court of Appeals and
established a test based on the common law
of agency to determine who is an employee
(490 U.S. 730). In the Reid case, a sculptor
who created a statue for an organization had a
dispute about taking the statue on tour, and the
sculptor refused to return the statue. A district
court ruled in favor of the organization, but the
Circuit Court of Appeals reversed and remanded
and held that the sculptor’s work was not a work
for hire. In their analysis, the Supreme Court
identified a test to determine whether a person is
an employee: the hiring party’s right to control
the manner and means by which the product is
accomplished…; the skill required; the source
of the instrumentalities and tools, the location
of the work, the duration of the relationship;
whether the hiring party has the right to assign
additional projects to the hired party; the extent
of the hired party’s discretion over when and
how long to work; the method of payment; the
hired party’s role in hiring and paying assistants;
whether the work is part of the regular business
of the hiring party; whether the hiring party is in
business; the provision of employee benefits; and
the tax treatment of the hired party.
Substantiating whether a person is an employee
is the first test established in the Reid case.
The second test is determining if the work by
an employee was conducted within the scope
of his or her employment. Three factors, all of
which must be present, show whether or not an
employee acted within the scope of employment:
1) whether the work is of the type that the
employee is employed to perform; 2) whether
the work occurs substantially within authorized
work hours; and 3) whether its purpose, at
least in part, is to serve the employer. In both
Miller v. CP Chemicals, Inc. and Marshall v.
Miles Laboratories, Inc., courts found that the
employees who were suing their employers
produced work (software and an article) within
the scope of their employment (808 F.Supp.
1238, D. S.C. 1992; 647 F. Supp. 1326, 1330,
ND Ind. 1986). While some authors have argued
a teacher exception to the work for hire doctrine,
case law is relatively absent to deny that colleges
and universities own faculty work (Packard
2002, 13, Moore and Andersen, 2003).
There is little clarity of ownership rights in
copyright law and by the courts. In the absence
of clarity regarding ownership rights to online
courses, colleges and faculty may rely on written
agreements that are signed by both parties.
Finally, written agreements between faculty and
institutions should be tailored to an institution
and its faculty (Laughlin, 2000).
Implications for Community Colleges
The results of this survey and discussion are
intended to be of value to distance education
practitioners. An important implication is that
community colleges should review existing
policies and create new policies if they do not
exist. While most institutions had IPR policies
and were satisfied with them, many institutions
did not have policies.
One area that requires further attention in
the policies is the domains of ownership. In
this research respondents were clear that the
institution owned tuition revenues from online
courses but unclear about the ownership of
many course specific domains and usage rights
for derivative works, distribution, and resale.
Moreover, respondents recommended removing
ambiguity and including more specific language
about online course ownership in their policies.
A second implication is the need for training
on IPR. Few respondents in the survey reported
participation in training to interpret their
policies. About half of the survey participants
expressed a need for training on IPR.
A third implication is that community colleges
should establish written agreements to augment
their IPR. The IPR policies that were reviewed
amplified the need for written agreements and
explicit language that incorporated the rights
of the institution, faculty, and students. A
review of IPR cases affirmed the need to include
language from the work for hire clause in written
agreements to protect the institution and faculty.
A fourth implication is the dissemination of IPR
in multiple locations including places where
faculty may view the policies. The limited
access to IPR and availability to faculty were
two important issues.
Directions for Future Research
The growth of online education drives the need
for IPR policies. The online education landscape
is changing rapidly, and the need for relevant
data and information has never been more
important. Interpreting the intellectual property
rights of online courses is relatively new ground
for most distance learning administrators. They
are developing more online courses and training
more faculty to teach online than ever before
to meet the increasing demand for educational
flexibility – often with a limited understanding of
their actions on their institution’s and faculty’s
intellectual property rights.
In three years, it would be instructive to
conduct a similar survey to compare results and
learn the extent to which community colleges
have incorporated the changes outlined here.
Some questions to be addressed are: Do
more community colleges have IPR policies?;
Have community colleges changed how they
disseminate IPR policies?; Do more community
colleges use written agreements that include
work-for-hire language, are tailored to particular
institutional contexts, and include the interests
of all parties? Does training on IPR exist and who
participates in the training?
Future research should strive to increase the
number of institutions and type of participants.
Of the 267 ITC member community colleges,
70 responded to this survey. Few faculty
participated. The perspectives of faculty and
administrators are critical to this research to
illustrate the interpretations, approaches, and
gaps in practice. Community colleges will
find value in giving greater attention to this
important area as the use, re-use, and potential
revenue from online courses become central
to their strategy for providing access and
success opportunities to global participants.
The evaluation and improvement of IPR policies
and practices is for the greater benefit of their
institutions, faculty, and (ultimately) students
wherever one may find them.
11
 References
Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
Bowman, Megan. 2007. “Intellectual Property Rights, Plant Genetic Resources and International Law: Potential Conflicts and
Options for Reconciliation.” International Journal of Intellectual Property Management 1:277-292.
Bruwelheide, J. H. 1999. “Intellectual Property and Copyright: Protecting Educational Interests and Managing Changing
Environments.” Article accessed February 8, 2008 at http://eric.ed.gov/ERICDocs/data/ericdocs2sql/content_storage_
01/0000019b/80/16/df/f1.pdf
Cate, Fred H., Patricia J. Gumport, Rolland K. Hauser, and James T. Richardson. 1998.
“Copyright Issues in Colleges and Universities.” Academe 84:39-45.
Johnson, Andrea L. 2004. “Reconciling Copyright Ownership Policies for Faculty-Authors in Distance Education.”
Journal of Law and Education 33:431-456.
Kelley, Kimberly B. 2000. “Courseware Development For Distance Education: Issues And Policy Models For Faculty Ownership.”
in Presented at EDUCAUSE Annual Conferences. Nashville, TN.
Kelley, Kimberly B., Kimberly Bonner, James S. McMichael, and Neal Pomea. 2002. “Intellectual Property, Ownership and
Digital Course Materials: A Study of Intellectual Property Policies at Two and Four Year Colleges and Universities.”
Libraries and the Academy 2:255-266.
Tomas A. Lipinski, (2007). “Contemporary Issues in American Distance Education:
Legal Issues in the Development and Use of Copyrighted Material in Web Based
Distance Education” in Handbook Of American Distance Education 2d edition.
ED by Michael Grahame Moore and William G. Anderson. Erlbaum Associates.
Marshall v. Miles Laboratories. Inc., 647 F. Supp. 1326, 1330 (ND Ind. 1986).
May, Christopher, and Susan K. Sell. 2006. Intellectual Property Rights: A Critical History. Boulder, CO:
Lynne Rienner Publishers.
Miller v. CP Chemicals, Inc., 808 F.Supp. 1238 (D. S.C. 1992)
Murray, Fiona, and Scott Stern. 2007. “Do Formal Intellectual Property Rights Hinder the Free Flow of Scientific Knowledge?
An Empirical Test of the Anti-Commons Hypothesis.”
Journal of Economic Behavior and Organization 63:648-687.
Nemire, Ruth E. 2007. “Intellectual Property Development and Use for Distance Education Courses: A Review of Law,
Organizations, and Resources for Faculty.” College Teaching 55:26-30.
Packard, Ashley, 2002. Copyright or Copy Wrong: An Analysis of University Claims to Faculty Work.
7 Communication Law and Policy 275.
Rhoades, Gary. 2001. “Whose Property Is It? Negotiating with the University.” Academe 87:38-43.
U. S. Constitution.
U.S. Copyright Act, title 17 U.S. Code.

12
 APPENDIX A
Intellectual Property Rights &
Online Course Development Survey Items
1. Please select your institution’s classification.
2. Please identify your institutional type.
3. Please identify your current Job Title.
4. What is the total online education course enrollment
(duplicated) for Fall 2007?
5. Who develops online courses at your institution?
6. Identify the various ways in which faculty are
assigned to teach online courses at your institution.
7. When faculty members develop online courses, how
is ownership of the online course determined?
8. Who owns the following rights when a faculty
member has developed an online course at your
institution?
9. For each particular component of an online course,
is it clear who owns the intellectual property rights
(institution or faculty) for a course that has been
developed by a faculty member?
10. If there is a formal process for resolving intellectual
property disputes with faculty, please describe it.
11. Have you ever had disputes with faculty over
intellectual property rights regarding the use or reuse
of online courses?
12. Within the last three (3) years, how often have you
had intellectual property disputes with faculty over
the use or reuse of online courses?
13. Does your institution have official intellectual
property policies, rules, or guidelines that address
the use or reuse of online courses?
14. What year were your intellectual property policies,
rules, or guidelines crafted regarding the use or reuse
of online courses?
15. Please identify where the intellectual property
policies, rules, or guidelines regarding the use or
reuse of online courses can be found.
16. Have you revised your intellectual property policies,
rules, or guidelines addressing the use or reuse of
online courses based on the following legislation?
17. Are there plans to review your intellectual property
policies, rules, or guidelines addressing the use or
reuse of online courses in the next year?
18. Have you attended a workshop or seminar at your
institution on interpreting the intellectual property
policies, rules, or guidelines addressing the use or reuse
of online courses?
19. In order of importance, select the best options for
improving your intellectual property policies and their
implementation regarding online course ownership?
20. Based on your past experiences with your policies, please
rate the adequacy of your intellectual property policies as
they relate to online course use and reuse.
21. If there are issues with your intellectual property policies
that we have not identified, briefly describe those issues.
22. Please indicate which of the following apply in regards to
the compensation for full-time faculty who develop and
modify online courses.
23. Please indicate which of the following apply in regards
to the compensation for part-time faculty who develop
and modify online courses.
24. Please indicate which of the following apply in regards to
the non-monetary benefits for full-time and part-time
faculty teaching online courses.
25. How much do you pay faculty to develop online courses?
26. How is pay for developing an online course determined?
27. For what are faculty paid when developing an online
course?
28. What are additional ways for managing online course
development at your institution?
29. If you have a “work-for-hire” (a contractual agreement
whereby the institution outlines the rights for each party)
clause in your intellectual property agreements, where is
it?
30. What is included in the “work-for-hire” clause?
31. If you did not provide a url in Question 15 above, is it
possible to contact you to get a copy of your intellectual
property policy?
13
 APPENDIX B

Sample Language from Community College IPR Documents*

Sample Language 1
The ownership rights to a creation shall be determined generally by the provisions …below, but ownership may be
modified by an agreement, sponsorship agreement, or other condition….

Institutional Works. Intellectual property rights in institutional works belong to the college... Institutional works
are works made in the course and scope of employment by employees or by any person with the use of college
…resources, unless the resources were available to the public without charge or the creator had paid the requisite
fee to utilize the resources. A course outline is an institutional work. Scholarly works and encoded works are not
included within the definition of institutional works.

Scholarly Works. Intellectual property rights in scholarly works belong to the faculty member, student or professional
staff who created the work, unless an agreement, sponsorship agreement, or other condition…provides otherwise.
Scholarly works are creations that reflect research, creativity, and/or academic effort. Scholarly works include course
syllabi, instructional materials (such as textbooks and course materials), distance learning works, journal articles,
research bulletins, lectures, monographs, plays, poems, literary works, works of art (whether pictorial, graphic,
sculptural, or other artistic creation), computer software/programs, electronic works, sound recordings, musical
compositions, and similar creations.

Encoded Works. Intellectual property rights in encoded works belong to the faculty member or student who created
the work, unless an agreement, sponsorship agreement, or other condition…provides otherwise. Intellectual property
rights in encoded works created by a professional staff member belong to the college or university unless an
agreement, sponsorship agreement, or other condition …provides otherwise. Encoded works are creations that are
software and other technologies for the electronic capture, storage, retrieval, transformation, display, or transmission
of information.

Personal Works. Intellectual property rights in personal works belong to the creator of the work. A personal work is
a work created by an employee or student outside his or her scope of employment and without the use of college…
resources other than resources that are available to the public or resources for which the creator has paid the
requisite fee to utilize.

Student Works. a) Intellectual property rights in student works belong to the student who created the work. b) A
creative work by a student to meet course requirements using college…resources for which the student has paid
tuition and fees to access courses/programs or using resources available to the public, is the property of the student.
c) A work created by a student employee during the course and scope of employment is an institutional work and
intellectual property rights to such creation belong to the college…unless an agreement, sponsorship agreement, or
other condition…provides otherwise.

Modification of Basic Ownership Rights. The general provisions for ownership of intellectual property rights…shall
be modified by the following provisions if any of these provisions is applicable to the situation.

Sponsorship Agreement. The ownership of intellectual property rights in a work created under a sponsorship
agreement shall be determined by the terms of the sponsorship agreement. If the sponsorship agreement is silent on
the issue of ownership of intellectual property rights, ownership will be determined under applicable law.

Source: http://www.mnscu.edu/board/policy/326.html

14
Sample Language 2
The college owns all syllabi and definitions of the contents of its courses, although the faculty
members own the contents, notes, etc., of the courses they create unless receiving substantial help
from the college,… This means that if a faculty member develops a new course and no longer wishes
to teach it, the syllabus may be used by another faculty member to develop a similar course, meeting
the same curricular need.

Use of Intellectual Property

If a faculty member, using his/her own time and resources, creates a web or other distance course, he/
she may choose to teach it at the college or elsewhere. If the faculty member leaves the college, the
course, being his/her property, will go with the creator, to do with as he/she pleases.

Transition of Use of Intellectual Property

If a faculty member, using his/her own time and resources, creates a web or other distance course,
which is critical to a specific college program, the creator owns the materials, and can control their
use while teaching at the college. However, if the creator leaves the college, he/she needs to allow the
college a fair period of transition to replace the materials, so that the program is not interrupted. This
can be done by giving warning one year in advance that the materials need to be replaced or it can
be done at the time of separation. In order to smooth the transition, the college may assign another
faculty member or adjunct to use the teaching materials if the creator either has left or chooses
not to use them. However, after a transition period of one year, the college must either arrange to
compensate the former faculty member for use of the materials, or create new materials to replace
them. If the creator prefers, and if the college and creator can agree on a monetary value for the
course, the creator can donate the course to the college for a tax write-off.

Source: http://www.nvcc.edu/depts/vpfinance/aspm/aspm.htm (Section 29.2.4)

*These excerpts were taken from IPR documents provided by survey participants. They are intended to be best practice
examples. Inclusion of these excerpts does not, however, constitute an endorsement by either ITC or Wayne County Community
College District.

15
 APPENDIX C

Sample Written Agreement

Right to Teach Agreement

The faculty member agrees to undertake and develop a distance learning course for (Course Title) on behalf of the Board
of Trustees (Board) of [community college name]. The faculty member shall be paid [number of] dollars to develop
said coursework. The coursework is to be completed on or before Payment shall be (date) contingent upon satisfactory
completion and timely delivery of said coursework to the Board.

Ownership and Royalty. The college shall be the sole owner of the coursework and any copyright applicable thereto. Should
the coursework be offered for sale by the college outside the institution, and if still employed by the college or officially
retired from the college, the faculty member shall be entitled to receive, as a royalty, fifty (50) percent of the proceeds
from sales received by the college to be paid by the Board to the faculty member semi-annually provided the coursework
has not been substantially changed. In the event faculty members collaborate on course development, the Faculty
members shall divide the fifty percent (50%) royalty.

Right to Teach. The Faculty member shall have the non-exclusive right to teach the course using the coursework developed
by him/her for the next three (3) semesters the course is offered by the college provided there is sufficient enrollment
and further provided, however, that if another Faculty member develops similar coursework for the same course or two (2)
Faculty members collaborate to develop the same coursework, then the Faculty members’ right to teach shall rotate. The
right to teach is dependent upon the satisfactory teaching performance of the Faculty member and continued employment.

Obligation to Maintain and Update. The Faculty member shall have the obligation to maintain and update the coursework
without additional compensation during the time the faculty member retains the right to teach set forth above. Thereafter,
any faculty member using and teaching the coursework shall be obligated to maintain and update the coursework without
additional compensation unless substantial revision is necessary and approved by the Board in advance.

Coursework Approval. The coursework developed under this agreement shall be considered an online course and subject to
the online course approval process. Further, any substantial revision to the coursework shall require approval through the
online course approval process.

Copyright Infringement. The faculty member warrants that he/she will in no way infringe upon any copyright of another in
the development of this coursework and will give appropriate attributions and obtain all permissions where necessary.

No Other Agreements. The Board and faculty member state that there are no other representations or agreements regarding
the subject matter of the agreement between the parties except as contained herein.

_______________________________________________
Faculty member/Date

________________________________________________
College President Name/Date
Representing the Board of Trustees
[College Name]

Source:http://www.spjc.edu/eagle/administration/forms_procedures/RighttoTeachContract.htm

*This document was drawn from IPR documents provided by survey participants. It is intended to be a best practice example. Inclusion of this document
does not, however, constitute an endorsement by either ITC or Wayne County Community College District.

16
 Instructional Technology Council
One Dupont Circle, N.W., Suite 360
Washington, D.C. 20036
202-293-3110
www.itcnetwork.org