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CAUT Bulletin Archives

September 2000

Ownership Rights – The Sale of Online Course Content

Tom Booth & James L. Turk
Who owns Economics 101? The university owns the course title, but the title, "Economics 101," is only a name on an empty shell. It is the content that transforms the title into a course – into something meaningful.

That content – the course outlines, lecture notes, overheads, assignments and the like – is the creation of the faculty member who teaches the course. Most collective agreements and university handbooks protect the creators of the course content by giving them ownership over their creations.

This right of ownership of course content is one of the cornerstones of academic freedom and quality in post-secondary education. In contrast to most other employees, whether in a factory or an office, academic staff control the substance of their work by owning the course material they create. This assures that students' learning is guided by faculty and not by administrators, government officials or other functionaries.

The Internet Challenge

Today, faculty control of course material is increasingly under threat from those who see Internet-based learning as an opportunity to make profits and impose extraordinary labour market flexibility on academic staff.

In the classroom environment, course content consists of an amorphous collection of notes, ideas and one-time performances of lectures – a difficult thing to commodify. In contrast, the content of an online course is software code on a hard drive or compact disk. It can literally be placed in a box.

The inherent nature of an online course therefore allows its development and delivery to be compartmentalized and contracted out to a range of temporary employees. An employer can hire one person to produce an online course, another to supervise its delivery to students and still another to revise and update the course as needed.

Alternatively, an employer can purchase online course content from existing full- or part-time academic staff. Once the staff have signed away their rights over the material, the course becomes the property of the employer who can hire temporary staff to deliver and revise it, without the involvement of the person who created it. Then administrators control the course, not the creator.

This bureaucratic control over course content threatens the integrity and quality of education. It also allows administrators to undermine the jobs of faculty and their role as the intellectual leaders of the university. Internet technology creates the potential to separate the creator of course content from the deliverer, to take apart (in administrative language "unbundle") the faculty member's job and assign different parts to separate members of a casualized academic labour force.

We are already seeing online education that divides the faculty member's job into the separate pieces of course creator, deliverer, tutor, and grader. The compartmentalization and casualization of university teaching undermine quality and renders obsolete the existence of a secure, professional faculty, with its accompanying guarantees of academic freedom and intellectual integrity.

University administrators, private sector entrepreneurs and government officials are quite open in saying that "online" education must be exploited for its alleged economic potential. At a number of universities, administrators are making enquiries about academic staff ownership rights in online courses and proposing new "intellectual property policy" proposals that claim a share of control in such courses.

Perhaps most worrisome is the accepted practice at some institutions of academic staff members voluntarily signing away their ownership rights over online course content.

Responding to the Threat

Academic staff must act quickly to preserve ownership rights of course content. Failure to do so will lead to further casualization of university teaching. What can be done?

Strengthen Collective Agreement Language

To preserve a healthy teaching and learning environment, academic staff must maintain ownership of online course material. Delivery of on-line courses must be tightly regulated by provisions bargained collectively and set down in collective agreements or faculty handbooks.

Most collective agreements or handbooks acknowledge in general terms that academic staff own the copyright to the works they create. While this language implicitly includes ownership of course material, the prudent action is to introduce contract terms that more explicitly spell out the rights of academic staff.

The agreement at St. Mary's, for example, provides member ownership of "correspondence course packages, interactive textbooks, course work delivered on the Internet, multimedia instructional packages, syllabi, tests and work papers, lectures..." The Manitoba agreement includes the proviso that "Members teaching courses dependent on information technologies which involve the broadcast, transmission, retransmission, publication, recording or storage of the content of the course shall exercise copyright and intellectual property rights regardless of the medium to broadcast, transmit, retransmit, publish, record or store the course..."

On the broader issue of online course delivery, academic staff must also be vigilant. As universities scramble to set up Internet-based distance education programs, the contractual arrangements concerning the presentation of online courses have often been left to ad hoc agreements between university administrations and individual staff members. This practice must be stopped.

For academic staff to maintain and exercise their existing teaching rights in the Internet environment, the collective agreement or handbook must determine all aspects of online course ownership and delivery. In practice this means negotiating language that, at a minimum, mandates creation and delivery of online courses by bargaining unit members and establishes tight limitations on the employer's use of online course material. Such language must also set fixed workload formulas and appropriate rates of remuneration for online teaching.

Understand the Employers' Arguments

Despite language in most university collective agreements and handbooks indicating that the academic staff own their creative works, some university administrations are arguing that they are entitled to a share of control over the content of Internet-based courses.

What are the components of such claims?

The first is a set of "soft" arguments that suggest because faculty and administrators share the responsibility to develop, update and deliver online courses as a public good the administration should be entitled to an ownership share. The second is a "harder" position that asserts the mixing of staff-owned course content with administration-owned software dilutes any exclusive ownership claim by staff in online course material.

From a legal perspective these arguments are insufficient to justify any claim by an employer for a share of ownership in course material. In most instances, staff already have a complete ownership claim to course material through their collective agreement or faculty handbooks. The method by which course content is presented to students does not alter this fact. Any discussion of course material ownership should be approached from this position of strength.

Understand the Employers' Interests

Cost savings and the desire for control are two obvious reasons for employers' interests in course content. The seizure of faculty copyright of online courses makes it much easier for university administrators to contract out the delivery of online education to temporary employees. This allows tremendous savings in labour costs and facilitates centralized control over distance education programs. Such direct attacks on academic staff and academic freedom must be confronted and opposed.

However, not all employer efforts to control online course material are as malevolent. Some employers are concerned about those academic staff who offer their online courses through other institutions. Administrators view such staff as competing against their own university. To the extent that such conduct represents a genuine problem, it should be addressed through the collective bargaining process, in particular in the "outside employment" or "conflict of interest" provisions of the collective agreement or faculty handbook. This phenomenon must not be used as an excuse to strip academic staff of their ownership rights of course material.

Do Not Sell Your Course Material

The academic staff member who develops online course material must also be the person who owns and teaches it. The alternative is the casualization of university teaching wherein courses are owned by the employer and course development and delivery is performed by a pool of contract employees with little or no job security.

There are at least three means by which academic staff can be separated from their online course material. The first is the outright seizure of course content by university administrations. Strong collective agreement or faculty handbook language on academic staff copyright protects against such seizure.

A second threat is the demand by employers for the right to offer a web-based course after its creator has left the university. With such initiatives, it is important to remember that with a traditional lecture or seminar-based course there is no expectation that departing academic staff members will leave behind their course material for other staff to present. Similarly, faculty are under no obligation to sign over online course material so that it can be offered after their departure from the institution.

The offering of course material "online" must remain contingent on the availability and desire of the faculty member who developed and owns it to teach it. If the university administration wants to continue offering the same course title after a faculty member leaves, it should have another faculty member develop and teach the course – the same practice as is followed in traditional campus-based courses.

The third and perhaps most dangerous means by which university administrations are securing ownership of online course material is by simply buying it from willing academic staff. One of the ironies of individual ownership of course material is that it provides academic staff with extraordinary control over the teaching process and, simultaneously, the ability to sign away the future of their profession.

Is There an Answer to this Conundrum?

One solution is an appeal to the individual consciences of academic staff members. The hope is that, by underlining the danger the sale of online course material represents, staff members will choose not to do so. However, as much as we would like to believe the "better angels" of our character guide us, we recognize the promised income from selling course material is a powerful attraction.

The alternative solution is to place in collective agreements or handbooks tight control on the use and sale of online course content. For example, provisions could stipulate online course offerings must be developed by the university's faculty and that only the faculty member who developed the course content could use it.

Some may object to this as limiting the "right" of faculty to sell their courses as they see fit. But faculty associations routinely negotiate terms and conditions of employment that, while they ensure the greater benefit of the group, do so at the expense of self-interest.

Salary scales are an example. There are graduates willing to accept a faculty position at a fraction of the pay set out in the collective agreement or handbook. What prevents this from happening is the fact that academic staff have bargained collectively to set certain standards of university employment. While this does limit someone's freedom to take your job by agreeing to work for a fraction of everyone else's salary, it is a limitation that is reasonable.

In the same manner, 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.

Tom Booth is president of CAUT and James L. Turk is the executive director.