COPY-RIGHT OR COPY-FIGHT? THE DISTANCE EDUCATION DILEMMA.

• Date: 01 July 2023
• Author: Chang, Cheng-chi "Kirin"

I. INTRODUCTION

Imagine an academic landscape where the boundaries of classrooms are extended beyond physical spaces, enabling education to traverse time and space, reaching learners wherever they are. This is the realm of distance education--a pedagogical revolution propelled by the burgeoning capabilities of the internet, becoming a mainstay for non-traditional learners and a crucial pivot during the Covid-19 pandemic. Defined as "mediated instruction" by the U.S. Copyright Office, distance education is characterized by a purposeful, teacherled pace and content, distinguishing it from unstructured self-learning. (1)

In the wake of the internet revolution, distance education has transcended traditional learning, becoming indispensable for students across the globe. This surge in virtual classrooms, especially amplified by the Covid-19 pandemic, (2) has brought to the fore a pressing legal conundrum: who holds the copyright to the educational materials created for these courses, educators or institutions?

This article posits that the current copyright laws are ill-equipped to address the unique challenges posed by distance education, leading to a legal and academic impasse that hinders the development of a clear framework for intellectual property rights in this field.

To unravel this complexity, the paper is structured as follows: the first section lays down the legal foundations for copyright in distance education, examining the relevant acts and their interpretations. Subsequent sections delve into the judicial perspectives that have shaped current understandings, the varied institutional policies that reflect the struggle over ownership, and the emerging trends that seek to reconcile these interests. The conclusion synthesizes these insights, advocating for a coherent policy that balances the rights of educators and institutions, fostering an environment conducive to innovation and accessibility in distance learning.

II. Distance Education Evolution and Copyright Challenges

Distance education represents a transformative approach to learning, where students and instructors are no longer confined to the same time or space. (3) This mode of education, as defined by the U.S. Copyright Office, relies on mediated instruction, where a teacher actively shapes the pace and content of the course--distinct from self-paced, resource-based learning. (4) The advent of the internet, particularly during the 1990s, catalyzed the expansion of distance learning, making it a pivotal resource for non-traditional students and a key response during global events like the Covid-19 pandemic. (5)

The historical journey of distance education began in the 19th century with correspondence courses via mail and evolved through the mid-20th century with the introduction of broadcast and teleconferencing technologies. (6) Today, it is predominantly facilitated through the internet, allowing for an interactive and versatile online learning experience. (7) The 1990s, especially, witnessed an explosion of distance education, with a significant portion of academic institutions embracing this format. Studies during that era indicated a robust inclination towards offering or expanding distance education offerings. (8)

The turn of the century marked a milestone with the accreditation of Jones International University, the first entirely virtual institution, setting a precedent for a variety of virtual universities. (9) By the 2000-2001 academic year, over half of U.S. colleges and universities provided distance education courses, a trend particularly pronounced in public institutions. (10)

In response to the digital era, university professors began integrating the internet and other digital technologies into their curricula, developing online resources to enhance educational delivery. (11) These efforts aimed to accommodate the growing demographic of non-traditional students--adult learners who may be part-time students, employed, or with families, and who often do not reside on campus. (12)

This shift towards distance education was not only an academic evolution but also an economic one, recognized by the government through legislative support like the Higher Education Amendments Act of 1998, which extended financial aid to distance learners. (13) Furthermore, the internet presented new opportunities for professors to disseminate their research, underscoring the relevance of copyright law in the realm of education. (14)

Copyright law protects original works fixed in a tangible form, which within academia, can encompass a diverse range of materials from software and websites to textbooks and multimedia online courses. (15) This paper will navigate the contentious debate over copyright ownership in distance education--whether the rights belong to the academic institutions or the individual professors who create the content. It will examine the legislative framework, judicial rulings, and institutional policies that have sought to address this pressing question.

III. Legal Foundations for Copyright in Distance Education

The U.S. legal system has enacted various copyright laws pertinent to distance education. Notably, the 1976 Copyright Act, the Digital Millennium Copyright Act (DMCA), and the Technology, Education, and Copyright Harmonization Act (TEACH Act) have directly addressed the challenges distance education presents to university professors' intellectual property rights.

A. The Copyright Act of the United States

The original federal Copyright Act was passed in 1909, and it codified the meaning of a "work-for-hire," defining an "author" to include "an employer in the case of a work-for-hire." (16) Before this law was passed, courts applied the work-for-hire doctrine in an inconsistent and non-standardized manner. (17) The 1909 Act thus served as a codification of existing case law. (18) Legal commentators have theorized that the drafters of the law were unaware that the provisions concerning work-for-hire were creating a broad exception, asserting that they were concerned with materials for encyclopedias or other composite works created by a number of employees for a large publication by a publisher that functioned as an employer. (19) The act itself contained no definition of "work-for-hire" and did not specify how the law's ownership result should be varied in different cases, thus giving the courts little guidance as to how to interpret the statute. (20) Instead, courts typically looked at whether a work made for hire was produced by an employee for their employer in the "scope" or "course" of their employment, based on the facts and the circumstances of the employment relationship and the creation of the work. (21)

The Copyright Act of 1976 constituted a significant reform of the nation's laws related to copyrights, abolishing state common law copyright and defining copyright protection as extending to "original works of authorship fixed in any tangible medium of expression." (22) Under this law, copyright ownership "vests initially in the author or authors of the work," (23) and the author is considered to be the person who actually translates an idea into a tangible creation entitled to copyright protection under the law. (24) An author does not need to actually register a copyright or a copyright notice in order to secure legal copyright protections. (25) Neither an employer nor an employee may execute an agreement determining whether a work is a work made for hire as defined by the statute. (26)

The Copyright Act of 1976 gives owners exclusive rights to their works, including reproducing it in copies or phonorecords, preparing derivative works, distributing copies to the public by sale, and performing or displaying the copyrighted work publicly. (27) There are eight main categories of copyrighted works: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. (28) This list is not all-inclusive, and university lectures for distance education fall under the category of written works, as most professors write their lectures down instead of improvise them extemporaneously, (29) and they are also able to record them through audio or visual means. (30)

For copyright protection, a work requires original creativity and fixation in a tangible form. (31) Copyrightable materials in distance education encompass lecture notes, course websites, exam questions, syllabi, and both draft and final scholarly articles, dissertations, theses, and monographs. (32) Copyright rights attach to a work from the moment of its fixation, when it is expressed in a tangible medium of some kind. (33) This is a crucial determination, complicated by the wide variety of media sources used to convey and transmit information in a tangible form. (34)

The Copyright Act impacts materials for distance education because copyright ownership "is distinct from ownership of any material object in which the work is embodied." (35) This has the potential to complicate the question of ownership of the work, because scholarly articles authored by a professor may appear on university-owned web pages, which have separate ownership from the article. (36) The main question related to distance education materials is who has control over the copyright, the university itself or the individual professors, (37) as some argue that the Copyright Act allows for universities to claim copyright ownership of the faculty's materials for distance education. (38) This has the potential to impact the education profession by forcing professors moving between universities to abandon their work at their previous workplace. (39)

The Copyright Act includes several sections on distance education, but it leaves unresolved whether such material qualifies as a "work for hire" under...