Tuesday, July 28, 2009

Dons, varsities and copyright

July 28, 2009

By Andy Ho

WHO owns course material?

Because online education promises to be a money spinner, this issue will emerge in our institutions of higher learning sooner rather than later: Does the instructor-as-employee who created the material own copyright to it or does it belong to the school-as-employer, whether a public university or a private college?

Professors tend to move from one university to another. Also, private schools here employ many 'nomadic' part-time instructors. As such, a course can begin to take shape at one institution and be improved upon at another.

If a university were to own the course material that an instructor develops while teaching there, then he would not be able to use that material when he moved to teach at a different institution.

Since professors are likely to be teaching much the same courses and thus use much the same material, this would mean that a new hire who has taught elsewhere would be using course material (he developed but is) owned by his ex-employer.

In practice, such a policy would lock professors down to the first school that ever employed them. This is a policy consideration that has led to the customary practice accepted in common law that instructors own their course material.

Statutory law itself provides that, if he is a citizen of or resident in any signatory country of the Berne Convention or the World Trade Organisation (Singapore included) at the time he first created the work, then the author owns copyright.

The exception to this rule involves people employed to write for their employer. In that case, the employer owns copyright because the work was created for the employer in the course of employment. (Also, a valid contract of employment could explicitly state that the employee hands copyright on any work created in his job over to his employer.)

So, the general rule is that copyright is vested in the original author to provide an economic incentive for creativity and innovation. Therefore, for employers of writers to be given copyright appears to be an exception to this rule, experts say.

In fact, the very order of the two clauses in our Copyright Act suggests that the latter is indeed meant as an exception. The exception promotes investments that provide the work contexts in which a writer like me can write for a living, so my columns can be packaged with other stories to be sold in the form of a newspaper, magazine or periodical.

Still, our law provides this exception specifically only to 'the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship'. Institutions of higher learning are not expressly included in the exception. By law, then, they do not own course materials their instructors create.

Why? One reason might be that the teaching in such institutions does not serve the interests of individual instructors, experts say. Rather, instruction in these institutions, seen as the unencumbered search for and free exposition of the truth in the classroom - or academic freedom - conduces to the common good.

So copyright in teaching material is vested in instructors who prepare them, though they be employees of universities and colleges, because doing so promotes academic freedom. This freedom to explore ideas is something that society values because it leads to advancements in knowledge and technology, experts say.

When professors can express their ideas fully and freely, students are stimulated to think - and together, new insights may emerge. However, the precise form in which such ideas are expressed - whether in reproducible written or video-taped form, or ex tempore, for example - is of no consequence to the university as employer.

That is, instructors have no duty to make notes. When they do prepare such notes, they are for their own use as guides during the delivery of lectures.

Thus, course material such as lecture notes, syllabi, exams, PowerPoint slides, essays and monographs are not prepared for the employer. This is why it is customarily theirs, not the university's property.

Of course, the mere mention of academic freedom assumes the university to be something like a guild of autonomous craftsmen-stewards of knowledge engaged in disinterested inquiry and exchange, with no formal quid pro quo.

Today, however, in the university, commercially tractable knowledge is arguably more sought after than the pursuit of 'usefully useless' truth for its own sake. The university is already sometimes like a for-profit corporation of knowledge workers that managerial bureaucracies steer to ensure profitability. Such managers may soon be looking to acquire the copyrights to course materials instructors create.

In fact, to even defend academic freedom in terms of property rights is already an acquiescence to the already commercially remodelled university-faculty relationship. But Corynne McSherry argues in Who Owns Academic Work? (Harvard University Press, 2001) this is not new.

The university has always been 'the servant of capital, legitimating the commodification of knowledge', she argues. One proof lies in its success in becoming the sole conduit into the most prestigious professions, membership in which translates into affluence and status.

In McSherry's anti-romantic account, the university was 'freed from the short-term profit needs of capital (to be) free to serve capital's long-term needs, including its need for basic research'. Indeed, in recent times, capital has infiltrated its research function. But now, even its core instructional function is game.

With money to be made from online learning, course material could be mined for profit. In a live classroom setting, the professor's mode of expressing his ideas had no fungible value. But in the asynchronous online classroom, it is eminently monetisable. Ominously, one university - Stanford - already asserts ownership 'of all Stanford course materials'.

In due course, US law, which tends to conform to capital's needs, will presumably be amended to make all this explicitly legal. Through its free trade agreement with Singapore, our copyright law will likely have to follow suit. Therefore, it looks like, everywhere and in good time, the professoriate will lose its copyrights.


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