NCSU Libraries Focus Online

Volume 23 number 1 - Fall 2002

By Peggy Hoon, Scholarly Communication Center

Who owns an online course? The answer to this question, while rarely simple, is of intense interest to many members of NC State's faculty, staff, students, researchers, and administrators, as well as others such as legislators and citizens, who encourage and support the university. As online courses and other digital works become more sophisticated, requiring increasing technological expertise and funds to develop, the end result might no longer be fairly characterized as the work of a single author. It may, instead, reflect the contribution of multiple authors, each with differing employment relationships vis-a-vis the university. This trend, combined with the rise of virtual universities, competition from commercial course publishers, the serials-pricing crisis, and nearly constant legislative efforts to strengthen the rights of copyright holders, has led most universities to reassess their management of works created on campus, including the issue of copyright ownership.

NC State officially recognized the value of reevaluating its current copyright ownership policy in 1998. That spring, the Scholarly Communication Subcommittee of the University Library Committee formally recommended the creation of a Copyright Ownership Task Force (COTF), primarily in response to the increasingly unsustainable system of scholarly communication. The subcommittee noted that "when faculty completely transfer the copyright to works they create, without reserving any right of use for themselves or the university that might have incurred significant expense in the production of the work, the university is forced to buy back [subscribe to] the work at costs that have become prohibitive in many cases." The COTF, co-chaired by the NCSU Libraries' 2001 Faculty Award winners Ross Whetten (Department of Forestry) and David Danehower (Department of Crop Science), was comprised primarily of faculty members who conducted their research in a widely consultative fashion, holding three campuswide Copyright Ownership Town Meetings during the fall and winter of 1998 and 1999. It submitted a report and proposed policy to the university provost in the fall of 1999 (http://www.ncsu.edu/provost/governance/task_forces/COTF/reports/). The provost continued exploration of the recommended policy with faculty, holding two more town meetings in addition to requesting and receiving faculty input via the deans.

In the meantime, the University of North Carolina (UNC) Office of the President had developed similar objectives, creating in the fall of 1998 an Intellectual Property Task Force (IPTF) comprised of representatives from each of the sixteen constituent institutions. Their charge included recommending a uniform copyright ownership policy to govern all the constituent institutions. After months of thorough and often animated debates, the IPTF recommended a policy that respects and continues long-established patterns of faculty ownership of traditional nondirected works, except where exceptional use of institutional resources has occurred. This policy, the University of North Carolina Copyright Use and Ownership Policy, was adopted by the UNC Board of Governors on November 10, 2000, and applies to works created at NC State (http://www.NorthCarolina.edu/docs/aa/research/copyright/BOG_copyright_policy.pdf).

Each institution was then required to develop an implementation policy specific to its campus. Operating within the constraints of the UNC System policy and building on the work previously done on this campus, NC State created and adopted in August 2001 the North Carolina State University Administrative Regulation on Copyright Implementation (http://www.fis.ncsu.edu/ncsulegal/areg-Copyright8-13-01.htm).

Pursuant to these policies, faculty continue to hold the copyright to their traditional nondirected works (i.e., pedagogical, scholarly, literary, or artistic works resulting from nondirected efforts). If, however, exceptional use of institutional resources has occurred in the creation of the work, the university must hold the copyright as it does for "directed" works (works specifically funded or created at the direction of the institution).

For traditional nondirected and directed works, the entity not holding the copyright is given a "shop right" (a nonexclusive, nontransferable, royalty-free license for its own educational or research use). Thus, for example, the institution may use its faculty's scholarly journal articles for teaching and research (e.g., in class handouts, on Web course pages, or in course packs) without needing permission from the copyright holder, whether that holder is the faculty member or a publisher. This innovative condition is a reasonable effort to assume more responsible management of the copyright to works generated in connection with the institution. In most instances, works created by employees covered by the State Personnel Act that are within the scope of employment responsibilities are owned by the institution. On the other hand, works created by nonemployee students belong to them, although the institution does have the right to use them for educational purposes. Importantly, a new university Copyright Committee has been established to handle questions of ownership and related issues (http://www.ncsu.edu/provost/governance/standing_committees/CopC/).

Overall, these policies continue the academic tradition of faculty ownership of their scholarly works, except in circumstances where it would be unreasonable because significant amounts of state resources have been expended in the work's production. As with any policy that must accommodate the needs of diverse interest groups, the current policies reflect compromise. And, as with any working, living document, the next critical issues will revolve around how the policy is interpreted and applied as it evolves.