Information on works for hire appreciated

One of the projects I'm working on for CCCC-IP is a basic guide for teachers who want to create online teaching materials, especially online courses, and whose institutions' intellectual property policies are vague. For those unfamiliar with what I'm talking about, teachers who create online courses are interested in whether they or the universities own the copyright to works they create. In other words, could they take their online courses with them if they took a job at another university? TyAnna Herrington was good enough to send me some citations of case law and articles written on the topic. I also noticed the definition of work for hire in this document and the definition on Form TX found on the site where you register for copyright:

What is a “Work Made for Hire”? A“work made for hire” is defined as (1) “a work prepared by an employee within the scope of his or her employment”; or (2) “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the works shall be considered a work made for hire.” If you have checked “Yes” to indicate that the work was “made for hire,” you must give the full legal name of the employer (or other person for whom the work was prepared). You may also include the name of the employee along with the name of the employer (for example: “Elster Publishing Co., employer for hire of John Ferguson”).

This definition would seem to favor strongly the university's ownership if the ownership ever came into question, even if the material is hosted on the instructor's own web space, given #1. If this is the definition of works for hire, it makes me wonder why the question is ever raised. I guess the argument would be that the teacher didn't understand the terms of work for hire. But then it could be argued that research universities are paying faculty to do research, too, but faculty members retain the copyright to their articles (or, as is more often the case, they sign it over to Elsevier, Sage, etc.). At any rate, I'm told that case law tends to favor teachers' ownership, so I'm curious to know how that would work.

Of course this gets more complicated when we throw Creative Commons in there. If faculty members negotiate in the beginning that the online courses will be licensed under an Attribution-ShareAlike license or an Attribution-Noncommercial-ShareAlike license, even if the university owns them, you get that "viral" effect of derivative works shared alike, so faculty members could teach the courses at other universities anyway. As if most universities would agree to that, though...

I'd love to hear your reactions, especially if you have firsthand experience with the problem.


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IP policies

I just finished drafting an IP policy for the community college where I work, and I made use of a really great list of IP links you posted here some time back, so I figured I'd share.
The main object of the IP policy was to prevent professors from illegally uploading copyrighted works to the commercial course management software licensed by the college. There was a lot of concern that the college would be sued by the RIAA if professors included too much commercial multimedia, or by publishers if they scanned entire chapters and uploaded them for the students.
The issue of "does the professor own the course" was not even considered under the "copyrighted materials" policy, because the ownership question is under discussion with the union. (The policy I was working on was under the aegis of the academic senate.) As a practical matter though, there are already leasable pre-packaged virtual courses available much more cheaply than paying an instructor, so the college has little motivation to alienate its faculty labor.

One issue that I haven't seen addressed anywhere is the copyright interests of students who make postings and observations to online courses -- the argument can be made that their input shapes the course to a degree that requires acknowledgement at least. And certainly their actual words need to be protected, though I guess they are deleted after each semester.

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