PRISM Magazine Online - May-June 2000
Whose Property Is It Anyway? The explosion in distance education is raising all sorts of questions, including whether the courses belong to the professors who develop them or to their employers, the universities.

By Alvin P. Sanoff

Virtually everyone who has gone to college has had the good fortune to take at least one course from a charismatic professor with the ability to make even the most mundane material mesmerizing.

Such professors, who often become legendary figures on their campuses, are highly valued by their institutions. Not only do students flock to their courses, but at institutional events they draw crowds of alumni and thus help their university with fund-raising. And if they are mediagenic, like the late Cornell University astronomer Carl Sagan, they can become television personalities whose visibility raises not only their own profile, but that of their home institution--drawing a bumper crop of applicants to the school. Frequently sought after by other institutions, these faculty members often draw top salaries, and they gain substantial additional income from writing popular books and articles in general circulation magazines, as well as from appearances on television.

Now, with the explosion of the Internet and the accompanying growth in distance learning, a new world of opportunity has opened for such professors. These star faculty members are positioned to profit handsomely from courses distributed around the globe by for-profit firms, by their own universities, or even by other institutions of higher education. This development has raised a host of complex questions for the academic community such as:

  • Does an institution have a right to share in the revenue from a course designed by a faculty member, but distributed outside its walls by others?
  • Does a professor even have the right to contract with an outside entity for dissemination of a course without his institution's prior approval?
  • If the professor's university, rather than an outside firm, distributes the course, is the professor entitled to a share of the "profit" and, if so, what is an appropriate percentage?
  • And who owns the course anyway--the professor or the university?

Universities and faculty members are just beginning to grapple with these and related issues, which fall in the arcane areas of intellectual property and contract law. "This is a culture shock we weren't ready for, and that is making it contentious," says Doug Lichtman, assistant professor of law at the University of Chicago and an expert on intellectual property law.

Arthur Levine, president of Teachers College of Columbia University, says that the key question facing universities in the evolving electronic environment is "who owns what gets produced." Levine points to the controversial case of Harvard Law School Professor Arthur Miller as a harbinger of what lies ahead.

The basic facts of the Miller case are these: Miller videotaped 11 lectures for a course on civil procedure given by the Concord University School of Law, an online degree-granting institution set up by the Washington Post Company's Kaplan Educational Centers. Harvard was not pleased to learn of Miller's relationship with another institution and has asked the professor to end it.


Star faculty members are positioned to profit handsomely from courses distributed around the globe by for-profit firms, by their own univeristies, or even by other institutions.


Some of Miller's faculty colleagues have said Harvard fears that the law professor's action could lead to a wave of for-profit corporations offering huge amounts of money to Harvard faculty members to teach online, thus making a Harvard education widely available and potentially reducing its value to traditional students. The law school has taken steps to prevent this by adding a provision to its faculty manual requiring that any faculty member who wants to do work for an Internet-based institution must receive prior approval from the dean, followed by approval from the Harvard Corporation, the university's governing body.

Harvard's concerns about the Miller case are well founded, says Columbia's Levine. If Miller, rather than Harvard, owns the course on civil procedure, "then higher education is in desperate straits," argues Levine, because it will lead to an upheaval in the power relationships in higher education, with professors assuming the dominant role.

Changing Times

Even if the university owns the course, a major transformation in the relationship between star faculty members and their employers may be inevitable because virtual universities can reach much larger audiences than a traditional institution, and that means there will be large sums of money available to sign up noted teachers. Levine predicts that "leading faculty will become the equivalent of stars" and eventually such professors will have at their disposal talent agencies that put together multimillion dollar packages that include a book deal, a TV show, a consulting contract with a software provider, and a distance learning course distributed by a for-profit corporation.

"When--not if--this occurs, it will be analogous to the fall of the studio system in Hollywood," says Levine. Where once the studios were dominant, now it is the actors who are the driving force. Similarly, says Levine, "the professor's name will become far more important than that of the university at which they are working at any given moment," just as Julia Roberts's name on a movie marquee is far more of a draw to audiences than the fact that Disney has produced the film in which she stars.

Levine says that there are already plans afoot to create a privately funded distance learning university that would hire eminent faculty members at lucrative salaries for short periods of time to create curriculum materials and offer electronic courses intended to reach thousands. In such a venture, says Levine, "the professor becomes the market brand, not the university."

Others see the changes in the offing as likely to be less sweeping. For example, Peter Martin, professor of law at the Cornell University Law School and co-director of the University's Legal Information Institute, a major noncommercial Web site, views the Miller case as simply a potential conflict of interest rather than a situation whose outcome has vast implications for higher education. The issue is that "Miller was teaching for another law school," says Martin. Under existing intellectual property law and common practice, he adds, if Miller had done the videos under the auspices of, for example, Court TV and what resulted were materials available to any law school and this was done without drawing upon Harvard's resources and using Harvard's name except in passing then Harvard would have no complaint. For his part, Miller has argued that he wasn't actually teaching at Concord while serving as a member of the Harvard faculty because he did not have any interaction with the online school's students, who are taught by other faculty members at Concord.

At Cornell, says Martin, the basic policy governing intellectual property is that "if you write a textbook or do other kinds of things without drawing upon extraordinary university resources, then it is yours." Most major universities have a similar policy. The problem, however, is that unlike writing a book, developing an Internet course is far more likely to be a collaboration that draws upon a university's technical resources--or those of an outside entity. In developing digital courses and materials, "you need a team," says Martin. "If that takes place within a university then the university can say: 'This is different than writing a book. We've contributed to it in a broader and deeper way and we have a claim because you have drawn on substantial institutional resources.' " Moreover, the potential royalties or profits may be more substantial than those from a work of traditional scholarship placed between hard covers.

A number of institutions and higher education organizations have formed committees to develop rules designed to address these new realities of the Internet age. If Levine's scenario is correct, speed is of the essence in developing clear guidelines governing course ownership, setting rules for sharing royalties and taking other steps to protect a university's franchise, to say nothing of its good name. In fact, the Intellectual Property Task Force of the Association of American Universities believes that protection of a university's name from misuse is one of the potential problems that institutions face in an online world. "Use of the university's name in connection with a program or course produced by a faculty member is itself use of a significant university resource, thereby triggering a university interest in the intellectual property," the task force concluded.

Some institutions view setting up their own Internet spinoffs, either on their own or with an outside partner, as a way to protect their franchise and to provide faculty members with additional income, while at the same time generating added revenue for the institution. At Cornell, Martin has developed distance learning courses on copyright and Social Security law that the school is selling to other institutions. Cornell gets all payments; Martin gets no royalties. But the course development is considered part of Martin's teaching load, and that seems to satisfy him. "I get paid nothing extra," he says. "I do it because I love pushing the envelope." Cornell's recent announcement that it plans to create a for-profit subsidiary for its distance learning program will have no effect on Martin's current arrangement.

The policy at Georgia Institute of Technology is similar to Martin's arrangement at Cornell. Revenue generated by a distance learning course goes into university coffers, with the instructor's parent unit, such as the electrical engineering department, getting a share of the revenue. That money is then typically used by the faculty members involved for such purposes as purchasing equipment, doing research, and attending conferences. As employees of a state institution, faculty members at Georgia Tech currently have less latitude than their peers at many private institutions in developing agreements that enable them to profit directly from online courses.

A number of institutions and higher education organizations are developing rules designed to address the new realities of the internet age.

Still, long before the Internet made its impact felt on higher education and raised the issue of course ownership, a small number of professors were making their courses available to students at other institutions without generating any controversy. Princeton University civil engineering professor David Billington, for example, has for a number of years been selling materials for his popular "Structures" and "Engineering in the Modern World" courses to several colleges and universities. The question of course ownership has never really arisen, perhaps because the revenues involved are modest. The money that Billington generates goes into a university account that he controls and uses for research. Billington, however, is not averse to reaching a wider audience by putting his courses online through a private vendor. "If the whole thing went online," he says, "I would have to work out something with the university." But, he adds, "whatever I did would be with the full knowledge and approval of Princeton."

Free Agents

The issues raised by the explosion in distance learning may well be resolved on a campus-by-campus or even faculty-member-by-faculty-member basis. Some analysts expect that universities will have to cut special deals to keep star faculty members from defecting to other institutions that may offer them a bigger percentage of royalties from--or clear ownership rights to--an Internet course. Columbia's Levine says that the money involved may become so compelling that some faculty members will become the academic equivalent of athletic free agents, moving from campus to campus or even making deals with multiple institutions simultaneously. The Intellectual Property Task Force of the Association of American Universities warns that "as major research universities develop their capabilities to create content that can be distributed widely for the education of audiences beyond the campuses, there are apt to be efforts among universities to 'hire' some faculty at other universities to create content for them [without hiring them on a full-time basis]." Moreover, the group warns, "beyond competition within the academy, there are apt to be a new breed of 'education entrepreneurs' who will seek to hire members of the faculty for 'consulting' work leading to the creation of new media products."

The University of Chicago's Lichtman believes that over time, these issues will get resolved in a relatively amicable fashion. "Right now we have had a shock to the system and so don't have clean rules between institutions and faculty," he says. "But we will establish rules." What those rules are will go a long way toward determining the future shape of American higher education.

    Alvin P. Sanoff is senior vice president of Maguire Associates,
    a higher-education market research and consulting firm.
    He is based in Bethesda, MD.


Grappling with thorny issues   - 3 hypothetical cases 


  As an engineering educator, how much would it be worth to you to reach 100 million students at one time, virtually speaking? Enough to donate a bit of your time and to lecture for free? Software multibillionaire and Massachusetts Institute of Technology graduate Michael Saylor hopes so. The Washington, D.C.-based founder of MicroStrategy, Inc. is donating $100 million--he calls it a down payment--to help create a global, online school that he says will rival Ivy League institutions in quality.

A few days after making the announcement, MicroStrategy restated its financial results, a move that caused the public company's stock to drop 62 percent in a single day. The market valuation for Micro-Strategy declined $11 billion, and Saylor suffered a paper loss of $6 billion. Wild gyrations in the stock market, particularly the technology sector, have since resulted in more volatility. However, the MicroStrategy CEO is still worth billions and remains committed to his idea for top-quality distance education.

Saylor, 35, not only envisions a super-cyber-university, but one that offers free education. And to accomplish that goal he expects top profs to film lectures on a gratis basis. Well-known educators will contribute to ensure their reputations, little-known academics will do it to further theirs, Saylor told The Washington Post. "People line up and fight to get on the Charlie Rose show; I think they'll fight to get into the studio."

But John Williams, an MIT civil engineering professor and distance-education expert, is not so sure. "He'll be lucky to attract people. We're all out starting dot-coms." Williams says that while Saylor's altruism is admirable, and the future of online education is great, he doesn't think the nonprofit model will work. "In the end," he notes, "education is a business."

 --Thomas K. Grose

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