Academic Freedom and Faculty Intellectual Property in the Era of Zoom and Learning Management Systems
In the pandemic and postpandemic environment, as faculty members become more engaged in teaching and research that involve videoconference-using platforms such as Zoom and private, for-profit learning management systems such as Blackboard Learn, faculty members should consider how the use of those systems may affect rights such as academic freedom and intellectual property. The issues are complex and, in some cases, the answer may not yet be unequivocal: several aspects of the ownership or use of faculty members’ intellectual property that has been uploaded to learning management systems are still subject to legal debate. Nonetheless, faculty members will benefit from gaining some understanding of the terms of use and legal variables involved in those platforms. This document is organized around central questions concerning academic freedom and copyright.
This document summarizes in sequence three resources made available by the American Association of University Professors (AAUP) regarding faculty members’ rights to the works that they produce in their professional capacity in an institutional context. Those resources are
- two relevant policies published in the Policy Documents and Reports, commonly referred to as the Redbook, 11th edition (Johns Hopkins UP, 2015);
- the article “Academic Freedom in Online Education: Bringing AAUP Principles Online,” by Jonathan Poritz and Jonathan Rees, published in the AAUP’s journal Academe (Winter 2021), available to the public at https://www.aaup.org/issue/winter-2021; and
- the webinar “Remote Teaching, Recording of Classes and Intellectual Property,” by Aaron Nisenson (Senior Counsel, AAUP) and Chris Sinclair (Univ. of Oregon), available to AAUP members at www.aaup.org/event/webinar-remote-teaching-recording-classes-and-intellectual-property.
This document was not authored by legal experts, and its content, which does not cover all situations and all institutions, does not constitute legal advice. The examples cited are not recommendations; a given example may not apply to all because of the great variation in institutional situations. Faculty members and faculty bodies are encouraged to actively involve themselves in policy formulation or clarification at their institutions through shared governance structures.
Are materials that faculty members produce for online courses their intellectual property?
I. “Statement on Intellectual Property”
According to the AAUP’s “Statement on Intellectual Property” in Policy Documents and Reports, commonly referred to as the Redbook, 11th edition (Johns Hopkins UP, 2015),
Faculty lectures or original audiovisual materials . . . , unless specifically and voluntarily created as works made for hire, constitute faculty intellectual property. As components of faculty-designed online courses, they cannot be revised, edited, supplemented, or incorporated into courses taught by others without the consent of the original creator. Nor can an online course as a whole be assigned to another instructor without the consent of the faculty member who created the course, unless, once again, the faculty member agreed to treat the course as a work made for hire with such ownership rights residing in the institution. Faculty governance bodies have a special—and increasing—responsibility to ensure that faculty members are not pressured to sign work-for-hire agreements against their will. (261–63)
II. “Statement on Copyright”
The AAUP’s “Statement on Copyright” in Policy Documents and Reports further elucidates the issue, stating that
it has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes. Examples include class notes and syllabi; books and articles; works of fiction and nonfiction; . . . and educational software, commonly known as “courseware.” This practice has been followed for the most part, regardless of the physical medium in which these “traditional academic works” appear; that is, whether on paper or in audiovisual or electronic form. As will be developed below, this practice should therefore ordinarily apply to the development of courseware for use in programs of distance education. (264–66)
The statement observes that, despite the declarations of some faculty handbooks that faculty members will be considered to have “assigned their copyright to the institution,” “a transfer of copyright, or of any exclusive right (such as the exclusive right to publish), must be evidenced in writing and signed by the author-transferor.” The statement further rejects institutions’ claims to own the copyright to faculty creations by declaring them “work for hire” because such creations do not fit the stipulation of “under the control and direction of the employer” required by “work for hire”; instead,
the faculty member rather than the institution determines the subject matter, the intellectual approach and direction, and the conclusions. This is the very essence of academic freedom. Were the institution to own the copyright in such works, under a work-made-for-hire theory, it would have the power, for example, to decide where the work is to be published, to edit and otherwise revise it, to prepare derivative works based on it (such as translation, abridgments, and literary, musical, or artistic variations), and indeed to censor and forbid dissemination of the work altogether. Such powers, so deeply inconsistent with fundamental principles of academic freedom, cannot rest with the institution.
Is academic freedom assured when faculty members use platforms such as Zoom to deliver classes or lectures?
III. “Academic Freedom in Online Education: Bringing AAUP Principles Online”
Such external power over faculty members’ work has been intensified by forms of technology used in the distance learning adopted by many institutions to avoid the dangers of the COVID-19 pandemic. A review of the recent situation is available in the article “Academic Freedom in Online Education: Bringing AAUP Principles Online,” by Jonathan Poritz and Jonathan Rees, published in the AAUP’s journal Academe (Winter 2021), available at https://www.aaup.org/issue/winter-2021. The authors describe three sets of problems that can arise from institutions’ use of software programs and platforms from outside providers: constraints on academic freedom in teaching materials and methods, the undermining of faculty members’ intellectual property rights over their creative work, and threats to privacy.
A. Constraints on academic freedom in teaching
In addressing the first set of issues, Poritz and Rees cite the AAUP’s “Statement on the Freedom to Teach” (1999), which lists fundamental aspects of teaching that the faculty has the right to determine, including materials, approach, assignments, and assessment of student learning. They point out, however, that when class sessions are conducted online through an outside provider, the control of features can be taken over by the provider; they cite the example of a provider that canceled events in which the provider’s “censorship” was to be discussed. The provider’s reason, as noted by the authors, was that “the topic violated [the provider’s] terms of use—terms that are, of course, unilaterally set by [the provider]. The same general phenomenon of outside corporate interests determining the nature of academic activity extends to other technologies commonly employed on campuses everywhere.”The most common technology adopted by institutions is the learning management system (LMS), whose “operators managed to convince institutions across the world that all courses, online or otherwise, should operate through their products.” As the authors note in numerous detailed examples, the LMS’s structure and functioning impose forms and limits on faculty members’ ways of teaching and assessing students and also permit access to the course by system administrators. All of these pose risks to the academic freedom of faculty members in their teaching.
Are materials that faculty members produce for online courses and upload to an LMS their intellectual property?
B. Intellectual property rights over faculty members’ work
The uploading of faculty members’ creative work to an LMS creates issues around intellectual property rights, beginning with the terms of use. Poritz and Rees cite the terms of use of the commonly used LMS that their institution utilizes, which states,
By submitting, posting or displaying Content on or through the Products, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, host, store, copy, reproduce, process, adapt, modify, publish, transmit, create derivative works from, communicate, display, and/or distribute such Content in any and all media or distribution methods (now known or later developed) as part of providing any of the Products.
As the authors describe, one problem occulted by such terms of use is that “the copyrights to works created as an expected part of employees’ normal work belong to employers. Whereas US colleges and universities have traditionally ceded to faculty the copyrights to scholarly and pedagogical creations,” this must be explicitly formulated in a contract. (Please note that the AAUP’s “Statement on Copyright,” as quoted above, propounds the opposite view, that the copyright belongs to the faculty member unless there is a written transfer of copyright to the institution.) They warn that a particular state system is proposing to remove the ceding of copyright over original course content to faculty creators from the next contract (see Colleen Flaherty, “Negotiations Go Astray in Connecticut,” Inside Higher Ed, 15 Dec. 2020), which would constitute a dangerous precedent for other institutions.Another problem to which the authors alert faculty members is that terms of use can and commonly do preclude the range and kinds of control over one’s created materials that are allowed by the various Creative Commons licenses that have become popular among creators who wish to share their work at no cost to the user. Providers and publishers serving as providers are more likely to look to derive profits from the materials that they collect through an LMS.Poritz and Rees then explore problematic aspects of “inclusive-access models,” or arrangements by which students pay a fee for access to the entire digital catalogue of a given publisher (without being informed of the option to not subscribe), which, when adopted by institutions, can result in pressure on faculty members to adopt the digital textbook of that particular publisher. If that textbook is covered by an all-rights-reserved copyright, instructors’ ability to customize the text for a given class is curtailed. This, for the authors, underlines the importance of Creative Commons materials, both because they may be adapted by others and because they are free of charge and thus save students enormous amounts of money.
Who has access to materials uploaded to LMS?
C. Threats to privacy
Poritz and Rees describe administrators’ ability to read and subpoena for legal proceedings everything written on course sites, in e-mails hosted by the university servers, etc. This is not an idle conjecture; the authors cite a case in which a state government responded in such a way to a faculty member at a state university participating in a strike. Other cases involve student recordings of a faculty member’s lectures. The authors observe that the problem is vaster with an LMS, all details of which are available to those who can access the system. Given that those with such access include the administration, the potential effects could involve all areas of personnel decisions, including tenure, promotion, and renewal processes.
What can faculty members do to safeguard academic freedom and intellectual property rights?
D. Clear, detailed policies and action through faculty governance
Poritz and Rees observe “that safeguards for academic freedom need to be extended explicitly to guarantee the faculty’s rights in new settings.” Citing the 2004 AAUP report “Academic Freedom and Electronic Communication,” they recommend including in faculty handbooks language specifying that “the ‘classroom’ must indeed encompass all sites where learning occurs—websites, home pages, bulletin boards, listservs, etc.” and “not just entirely online classes but also any instance in which faculty members teaching in person use online tools.” They further recommend that such handbooks state the right of faculty members to choose and, we would add, independently assess, online course materials, as well as software programs and platforms.The authors recommend that faculty handbooks also state the right of faculty members to privacy in all digital settings, including a means of informing faculty members of security failures or the need of the institution to breach privacy for a reason such as an investigation. Faculty members should also be informed of oversight of their teaching by access to the digital material. Faculty handbooks should also explicitly acknowledge the right of faculty members to opt out of elements of the LMS or of an assigned textbook.The authors conclude by urging faculty members to become involved in all areas of faculty governance in order to exercise their right to “a significant role” (and, even more in line with AAUP principles, “the primary role”) in decisions over online platforms and course materials, with a close scrutiny of their intellectual property policies, potential for customization, and access; to include in faculty handbooks and contracts protections for all faculty members in all of the areas discussed; and to make clear statements about which materials could appropriately be used in personnel decisions.
What other issues concerning intellectual property do faculty members engaged in remote instruction need to consider?
IV. “Remote Teaching, Recording of Classes and Intellectual Property”
The webinar, which is available in both a recording and the slides of the presentation, provides a broad overview of the situation that emphasizes the variability of details by institution, by faculty contract type (e.g., tenure-line, per-course, etc.), and by laws. The areas of concern addressed include faculty ownership of copyright to lectures and other intellectual production, the faculty role in developing and modifying relevant institutional policy or policies, the importance of clarifications of policies, the faculty role in current and future declarations of emergencies and the means of handling them, legal and institutional issues and problems around recordings of course lectures (including sample syllabus statements regarding recording, policies about the destruction of recordings, and distinctions between traditional teaching done remotely because of an emergency and the development of a fully online course), and links to a range of AAUP policies and resources.