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Administrative Policy
Regarding Creation, Use and Distribution of Telecourse Materials
I. Introduction
Recordings of lectures may be created under a variety of circumstances. For example, a faculty member may decide to place a tape recorder on the podium to preserve a particular presentation or to videotape a series of lectures. Alternatively, a U.T. System component institution ("component") may hire a faculty member specifically to create a set of videotapes for use by the component. The tapes in any of these examples may be presented to students who are far removed from the campus, by television broadcast, electronic transmission, or by sale, license or loan of the medium containing the course materials. Some tapes may even be marketed to outside educational institutions or entities. Alternatively, some lecture series may be established primarily or incidentally for live transmission to remote locations. Such lectures may be videotaped as well and distributed as described above. Further, with the emergence of the "electronic university" there may be courses that are implemented in or augmented with electronic media as a means of communicating content to persons who are not physically present in the classroom. Works in any medium may be digitized, and thus electronic works tend to be multimedia creations, compounding considerably the issues that must be resolved in order to clearly determine appropriate uses of incorporated materials. For the purposes of this policy statement, all such usage in any medium will be referred to as "Distance Learning" and the course materials themselves as "Telecourses," though the appropriate treatment will vary depending upon the circumstances of creation and intended use.
Telecourses and Distance Learning in their elemental forms have been a part of the curriculum at U.T. System components for many years, but for a variety of reasons, there are still many questions about the rights and responsibilities of components and their faculty members with respect to these methods of instruction. Since the demand for Distance Learning appears to be increasing and the continuing development of Telecourses in various media seems likely, it is important to address the issues raised by the creation, use and distribution of various forms of Telecourses and clarify the rights and responsibilities of each of the parties involved.
The following discussion provides interpretation of the Regents' Rules and Regulations as they relate to Telecourses and Distance Learning.
II. Issues Raised
- Who owns copyright in Telecourses and how should such rights be protected?
- What are the responsibilities of faculty members to utilize various technologies to meet the needs of their currently enrolled students?
- Under what circumstances should faculty members be expected to prepare Telecourses for use by students not currently enrolled in their classes?
- What are the rights of faculty members with regard to the continuing use of Telecourse materials?
- Who may receive royalties from the sale or licensing of Telecourses?
- What procedures should be followed to limit liability for infringement of copyright or invasion of privacy or publicity if a Telecourse contains material that belongs to someone other than the component or faculty creator(s) or contains others' likenesses?
III. Short Answers
A. Copyright. The U.T. System's Intellectual Property Policy ("Policy") allocates the ownership of copyright in scholarly works created by faculty members in their fields of expertise to the faculty member. Faculty members thus hold copyright in Telecourse materials they create on their own initiative in the course of the performance of their teaching responsibilities. U.T. System's Policy allocates ownership of copyright in works created under contract or as works for hire to the Board of Regents ("Board"). Thus, Telecourses will belong to the Board if created by non-faculty employees within the scope of their employment, or under a specific contractual arrangement or other special relationship. Telecourses created by faculty members as a condition of their employment fall into the category of works for hire or works created by an employee within the scope of employment; thus, copyright in such works is owned by the Board. Telecourses created jointly by faculty authors and others whose contributions would be works for hire will be jointly owned by the faculty author and the Board. Any owner of copyright in a Telecourse may secure copyright registration; joint owners may, but do not have to, agree to bear responsibility for enforcement of the copyright.
B. Faculty Responsibility to Currently Enrolled Students. Faculty members have a responsibility to meet the reasonable needs of their currently enrolled students, including those needs best addressed by the use of technologies to make class materials readily available. For example, if recordings may be needed by remote students or students with disabilities, they should be created in the ordinary course of teaching and made available under reasonable circumstances. Notwithstanding this basic responsibility, the creation and use of Telecourse materials intended for use beyond the current semester or for commercial purposes should be the subject of contractual agreement between the faculty member and the component.
C. Course Development. Faculty may receive teaching load credit for duties performed in the best interests of the University's instructional program, including Telecourse development.
D. Revision Rights. Faculty members should retain the right to update, edit or otherwise revise Telecourse materials that become out of date, or, in certain circumstances, should place a time limit upon the use of Telecourse materials that are particularly time sensitive, regardless of who owns copyright in the Telecourse. These rights and limitations must be negotiated in advance of the creation of the Telecourse, should be reasonable under the circumstances, and should be reduced to writing.
E. Royalties. In accordance with U.T. System Policy, faculty members shall receive all royalties that may accrue from the commercialization of Telecourses they create on their own initiative. On the other hand, the Board retains all royalties that may accrue from the commercialization of Telecourses created by faculty members pursuant to contract or as a work for hire, including Telecourses created as a condition of employment. Copyright law permits joint owners to pursue commercialization either jointly or separately, with accounting. Other circumstances may require review on a case-by-case basis (such as a Telecourse initiated by a faculty member but using substantial component or U.T. System facilities.)
F. Contributed Materials. Liabilities may be incurred with respect to the inclusion of materials in Telecourses other than materials created by the Telecourse author and inclusion of voices or images of persons in the Telecourse, including audience members and guest lecturers. It is the policy of U.T. System that all faculty and staff comply with the law, including copyright and privacy laws; therefore, creators of Telecourses must obtain all permissions and releases necessary to avoid infringing copyright or invading the personal rights of others.
IV. Discussion
A. Copyright Issues
1. Scholarly Work: Ownership by faculty member. Without our Regents' Rules, which modify the statutory scheme, Copyright Law would probably vest ownership of copyright in the works of all employees of U. T. System and its components, including faculty members, in the Board or the component employer. 17 U.S.C. Section 201(b). In the case of faculty authors, the Rules depart from the statutory scheme. Part Two, Chapter XII, Sub Section 2.3 of the Regents' Rules recognizes the paramount interest of faculty members in their scholarly works by indicating that the Board will not assert an interest in such works. Sub Section 2.3 describes these works as "scholarly or educational materials, art works, musical compositions and dramatic and non-dramatic literary works related to the author's academic or professional field regardless of the medium of expression...." Telecourse materials created by faculty under the same or similar circumstances as would ordinarily lead faculty to produce typical or more traditional works will be treated as scholarly works and will belong to the author. Faculty members should note that undergraduate students own copyright in their works and faculty members must obtain their permission to incorporate student work in a faculty-authored work.
2. Work for Hire: Ownership by Board of Regents. Sub Section 2.4 of the Regents' Rules, in accord with Copyright Law, permits the Board to own works that are commissioned by the U.T. System or a component or that would be works for hire under Copyright Law [17 U.S. Code Sections 101 and 201(b)]. Thus, works created under contracts between the U.T. System or a component and a faculty author, or by employees, other than faculty, within the scope of their employment, will belong to the Board.
3. Joint Works: Ownership by Board and faculty member. Works may be created through the joint efforts of faculty members and non-faculty employees working within the scope of their employment or others under contract to provide services. For example, component employees may be asked to contribute copyrightable expression to a faculty member's Telecourse, such as artists' drawings of clinical conditions or technical operations. Such a work would be jointly owned by the faculty author and the Board. In certain circumstances where the parties may not actually intend this result, as may be the case if a component hires a student to assist a faculty author to complete a project, ownership may be altered by agreement of the parties. This underscores the importance of memorializing the parties' intentions in a contract.
4. Use of University's Name. Faculty members must observe the same requirements that obtain in other contexts with respect to the use of the University's name. Part One, Chapter III, Section 13.7, Regents' Rules.
5. Protecting the Work. The U.T. System or a component will determine whether to register the copyright and will be responsible for enforcement of works they own. Faculty members will make such decisions and take such steps to protect works they own. Any one of the authors of a joint work may register and enforce the copyright in the names of all owners, with accounting. The following information is offered as guidance regarding the mechanics of copyright registration and enforcement for faculty who wish to pursue copyright registration.
a. The basics of copyright protection. Copyright subsists in original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (17 U.S.C. Section 102.) This means that the work is protected by Copyright Law as soon as the author creates it.
There are currently several special benefits that result from registration of copyright; so it is still advisable to register copyrights in order to take advantage of the special remedies. For example, for a work that is registered, the author may receive statutory damages of up to $150,000 for each willful infringement, without having to actually prove what the damages were; that is the meaning of statutory damages - those damages provided by statute regardless of actual damages, which are hard to prove in most cases.
b. Registration and deposit. The United States Copyright Office maintains an extensive collection of Circulars and Forms online to help authors register their works. The Copyright Office URL is www.loc.gov/copyright.
The U.T. System Copyright Crash Course contains links to materials that may help faculty prepare applications for registration of literary works and software.
c. Enforcement. If an author discovers that a work is being infringed, the response should be quick and explicit: direct the infringer to stop the infringement by a date certain or risk a lawsuit. The law provides fairly severe penalties for infringement; infringement can be shown by way of circumstantial evidence since direct evidence is rarely available; and the state of mind of the infringer is irrelevant except in narrow circumstances where the infringer might reasonably believe that the copying or other use would have been a fair use. This means that an infringer does not have to know the action is against the law; if the material is copied, the infringer is liable.
Thus, a simple letter will often terminate many infringements, especially if the alleged infringer confers with counsel. Attachment A contains a sample "cease and desist" letter. For cases where the infringement is not so clear, as where the copying may be de minimis, or where the taking is more correctly characterized as the borrowing of ideas rather than expression, consultation with private counsel and further communications may be required.
B. Faculty Responsibility to Currently Enrolled Students
Telecourse materials such as tape recordings and videotapes created in the ordinary course of instruction and not intended for use beyond the end of the current semester or by students other than those registered for the class are the property and responsibility of the faculty member who creates or authorizes them. Faculty should be willing to utilize technologies appropriate to the circumstances to make their course materials reasonably available to their currently registered students. Faculty may dispose of such materials in whatever manner they choose at the end of each semester.
C. Course Development
The Part One, Chapter III, Section 36, Minimum Faculty Academic Workload Requirements for General Academic Institutions, of the Regents' Rules, authorizes limited faculty teaching load credit to facilitate special development activities. The policy specifically mentions academic advising responsibilities, preparation of major documents in the fulfillment of programmatic needs or accreditation requirements and "duties performed in the best interest of the institution's instructional programs." Thus, while not specifically addressing the preparation of Telecourse materials, the policy is still broad enough to support authorizing such credit.
D. Right to Revise or Limit Use Period
Regardless of who owns copyright in Telecourse materials, faculty who participate will undoubtedly wish to retain some control over the later use of the materials. Faculty will be reluctant to memorialize lectures and other educational materials if they are unable to update, revise or eliminate entirely parts of the work that are no longer relevant, correct, or are merely no longer timely. Since the Copyright Law would not vest the right to revise, edit or even destroy a work belonging to another, these rights must be granted in contracts between any component and its faculty members who will be exercising the rights. Further, since the application of the work for hire provisions of Copyright Law does not always bring about the allocation of ownership of copyright that the parties may have intended, it is important to have a contract to properly address ownership issues as well. The contract should include a statement that the work is a work for hire, an assignment of copyright to be sure that the intended result is realized, and special provisions allowing the faculty member to retain a right to edit or modify the original at specified times, thus creating a derivative work. A sample contract is attached as Attachment B. If this form of agreement is utilized without substantive alteration, it should not require review by the Office of General Counsel.
A contract should also be used to clearly set forth the rights of a component in a scholarly work created by a faculty author with the aid of component employees or with substantial use of University resources.
E. Royalty Issues
1. Scholarly Work. Since the Board ordinarily takes no interest in faculty authored scholarly works created in accordance with Part Two, Chapter XII, Sub Section 2.3 of the Regents' Rules, faculty will receive all royalties that accrue from publication of such works, except as set forth below. Faculty will be responsible for protecting their works and negotiating publishing agreements, including royalty rates.
2. Scholarly Works Created Using Significant Component or U.T. System Resources. In certain unusual circumstances where a faculty author has utilized significant amounts or kinds of component or U.T. System facilities or resources to create a scholarly work, it may be appropriate to require the faculty author to share royalties with the component or U.T. System. In these unusual circumstances, responsibility for publishing arrangements and the details of royalty sharing will be evaluated on a case-by-case basis.
3. Jointly Owned Works. Joint authors may choose to cooperate in the commercialization of their work or to commercialize separately. Joint copyright owners are obliged to share their revenues with each other if they commercialize separately. In the absence of an agreement as to the division of revenues, they will be shared pro rata.
4. Work for Hire. The component Institution or U.T. System will secure protection and review publishing or distribution agreements for works that belong wholly or partly to U.T. System pursuant to Sub Section 2.4 of the Regents' Rules.
F. Securing Permissions and Releases
1. Copyright Infringement. Using others' protected materials in the creation of a new work will subject the author to liability for infringement unless the use falls within the parameters of an exception in the Copyright Law. Securing permissions from third parties can be an extremely difficult and frustrating experience. If the author creates the entire work, issues of permission can be avoided. The author may still need to secure releases from audience members or guest speakers, but these should be acquired in any event as a condition of participation in the class.
Fair use is alive and well in the electronic environment, so it applies to multimedia works as well as to more traditional works; however, if the author plans to commercialize a work, reliance upon fair use becomes problematic. In that case, the requirement to locate copyright owners, obtain their permission to include their works in the new work, and negotiate a price for this right may be, individually or certainly cumulatively, overwhelming.
Fair use protects the user from liability for infringement of another's work under certain circumstances. Teaching, scholarship, and research are favored uses under the law but in any particular circumstance, the determination of fair use rests upon the weighing and balancing of certain facts about the proposed copying: what is the user planning to do with the copied work; what is the nature of the copied work (fact or fiction; published or unpublished); how much has the author borrowed; and will the new work compete with or otherwise damage the market for the original work? To illustrate circumstances at one end of this continuum, a Telecourse designed by a faculty member for use in teaching a specific class could probably qualify for protection from infringement as a fair use, so long as it did not incorporate large quantities of the works of others. On the other hand, a work created by a component for the express purpose of marketing to other universities, and incorporating large portions of others' works, would probably not be entitled to utilize the fair use defense. Unfortunately, most cases are not so clear. There is a very large "gray area" and most every proposed use seems to fall into it.
There are other exemptions for performances and displays in face-to-face teaching situations and in "transmissions," which include broadcasts and electronic distributions; these excuse the performance or display of a work, but not the making of a copy of the work, which can only be excused if it is a fair use. Again, if an author creates a work for personal use, any copy made is more likely to be fair use and the performances and displays that take place as a result of transmission and reception will be excused. On the other hand, if the work is intended for a commercial audience, even though the ultimate performance of the work may be excused as an educational broadcast, the right to make the copies in the first place will have required permission.
On occasion a faculty member may begin a Telecourse project planning to use the materials in a limited way, but will decide later that the Telecourse may have more potential than first believed. If permissions have not been obtained in reliance upon a fair use claim, the requirement to obtain them when the work is complete may be troublesome: some authors may be difficult or impossible to find; others may be unwilling to give permission; still others may ask too high a price. It would be quite likely that the work would require revision based on the results of an after-the-fact permission search.
Almost any publisher who might handle publication and distribution of a Telecourse will require from the author a warranty that all permissions and releases that are necessary have been obtained, and an indemnity against any losses that the publisher might incur as a result of the author's breach of this warranty. Thus, failure to obtain the necessary permissions and releases could result in considerable financial liability were one or more authors from whom material has been borrowed to complain of infringement.
All of these factors contribute to the conclusion that it is usually best not to rely upon a claim of fair use in creating Telecourses; the author should endeavor to obtain permission to use any protected materials and be ready to substitute other materials for those whose use cannot be cleared.
2. Multimedia Works. It is tempting to think of the contents of the Internet as works "out there" for the taking and ready to be incorporated into new hypertext or other multimedia works. This misstates the facts considerably. Many authors place works on electronic networks without much concern for the uses that others will make of them, but probably most would not be pleased if someone made a commercial use of their work without permission and without payment of any fee or royalty.
Works in the electronic environment are protected under Copyright Law just as print works are protected, from the moment of fixation in a tangible medium of expression. This is understood generally to include fixation in a central processing unit. Thus, e-mail messages, postings to bulletin boards, files placed where they can be retrieved by file transfer protocol ("ftp"), hypertext documents on the Internet and a host of other "publications" in the electronic medium are all protected. Thus, no one who finds a document or other work on the Internet should assume that the owner has granted permission to copy, display, publish, distribute or perform the work except as required for the normal use of the work in the electronic environment. For example, to retrieve a file, one must make a copy of it somewhere in the retriever's computer since that is the nature of retrieving; often a hard copy will be made as well for easier reading. Other uses, such as reposting to a listserve or otherwise distributing the work electronically, publishing the contents of the file in electronic or other media or creating a derivative work from it should be reserved to the owner.
The Internet has become a field of expressive wealth and is attracting more and more contributors and users. Fortunately, the medium makes it possible to lower transactions costs considerably; many authors include their e-mail addresses with posted materials, making it easy for users to secure the necessary permission to proceed. There are proposals under consideration now that would require all permission information to be contained in an envelope that accompanies electronic postings. The envelope could indicate how the work could be used and the price for various permitted uses. Still other proposals contemplate that the mere act of posting on certain networks would carry with it permission to use in any way, with payment accounted electronically from pooled funds paid by subscribers to the network. Other proposals abound. Clearly, the emerging electronic environment requires monumental work to adapt it successfully to the current system of creation and distribution of intellectual works, but the potential is so enormous that the force is irresistible.
The university community would benefit considerably if its faculty members come to appreciate the need for simplified procedures for permissions and reasonable valuations of same, and take steps to ease this burden for others who follow them. Since faculty members are users and creators of works, they should be especially sensitive to the benefits of efficient access.
3. Invasion of the Rights of Privacy and Publicity. Individuals have many rights in their personae; rights of publicity in those who are famous, rights of privacy in those who are not. For all persons, false statements that damage character or reputation may be actionable. The Telecourse creator must be careful to avoid using (or creating) works that describe identifiable individuals without their permission or describe individuals in ways that could be libelous. These torts involve rights of publicity and unfair competition (trademark) and can be very complicated. Further, some states protect some of these rights statutorily; others rely upon common law; still others do not recognize certain of these rights at all. The difficulty of clearing rights of publicity will be considerably more difficult with images, but even with text, one must be careful. The creator will need to obtain a release regardless of the copyright status of the work to be used.
There are certain defenses that the creator may be able to utilize to avoid tort liability. The use may be incidental and minor (briefly mentioning someone), related to a matter of public interest (especially if it took place in a public place), or a news report or parody. Authors of fictionalized accounts of events in the lives of famous persons and documentaries enjoy considerable latitude because of the weight of First Amendment rights. One must be careful, however, not to tread over the line of fictional account into falsehood. It should be clear that the account is fiction.
Generally though, if the author is using language that names or identifies well-known individuals and is commercially exploiting the link between the work and the celebrity, the author should obtain permission. If the celebrity refuses, or charges a fee that the author cannot afford, it is probably better to revise the language than to risk a lawsuit. In those contexts where unfair competition laws would apply, having asked permission and been denied can weigh against the author.
The use of images of students may be addressed at admission; otherwise, it would be necessary to obtain releases from individual class members on a class-by-class basis.
For more information on clearing rights in works for inclusion in Telecourse materials, see the Copyright Crash Course.
4. Samples: Requests for Permission and Releases. Attachment C hereto contains a sample letter that can be used to request permission to use works created or existing in any medium. Attachment D contains a sample release.
V. Summary
Telecourse materials may be owned by faculty who create them, by the U.T. System or its components or jointly, depending upon the circumstances of creation. Regental Policy allocates ownership of scholarly works to faculty, except those works commissioned by U.T. System or a component or those created by employees other than faculty within the scope of their employment (works for hire). In certain circumstances, faculty authored works created using substantial University resources may be subject to royalty sharing with the faculty member's Institution. In most cases, both the financial benefits of publication and the responsibilities associated therewith will belong to the owner of copyright. Regardless of who owns copyright, faculty should have the right to limit the use of materials in accordance with academic standards, just as faculty would revise lectures and curriculum for more traditional classroom instruction.
It is important that Telecourse materials be prepared pursuant to contracts that clearly delineate the rights and responsibilities of each party and any special provisions for later review and editing by faculty authors.
Attachment A
Cease and Desist Letter
[Note: Send this letter certified mail, return receipt requested.]
Attachment B
Telecourse Agreement
Attachment C
Permission Letter
Attachment D
Personal Release Form
Presentation: Copyright Law for Distance Learning