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Works-for-hire Serving Good and Not Evil: A Policy Proposal For More OER

1975 words
A proposal of a new policy, which could be implemented at the institutional or governmental level, which would use the works-for-hire doctrine in copyright law, and as it is usually lived in US institutions of higher education, which would instantly result in more OER. Additional, more ambitious, versions of this policy are also proposed which might be harder to enact, but which would make much more OER available. These policies are all variants on the general principle that "publicly funded curricular materials should be openly licensed."
Originally appeared as a post in the OER & Beyond blog; please see this attribution note.

abstract image of the copyright symbol starting to disintegrate

["Copyright license choice" by opensourceway is licensed under CC BY-SA 2.0.]

If you were to ask open education practitioners to list the most important issues confronting the movement at this moment, I doubt that they would say

There just aren't enough OER: many subjects in many disciplines have few or no OER available.

I'm guessing folks wouldn't mention this, simply because it is so obvious, and not a surprise given how new the OER ecosystem is, so that there simply hasn't been time for all of those subjects to be covered.

I'd like to propose a policy that educational institutions could adopt, or be compelled to adopt by regulatory agencies or legislatures, that would immediately expand the body of available materials for OER and increase the rate at which new open materials are created. By a happy accident, my proposal would particularly increase open supplementary materials, and materials for primary and secondary schools.

To explain the proposed policy, I have to say a little bit about copyright law. [1]

In the United States, under 17 U.S.C., copyrights spring into existence on "original works of authorship fixed in a tangible medium of expression" [2]. Like leaves on a forest floor, they are so ubiquitous in the world of education that they are easy to ignore … except when one remembers that copyrights confer upon rightsholders extraordinary powers over how their works are used. These rights include absolute control [3] over

of the protected work. The rather draconian level of control given to rightsholders is often at odds with the ethical foundations of the culture at most educational institutions [4], where we want to share our scholarly and pedagogical works as widely as possible, and we hope for nothing more than that our work should be the inspiration of future works (derivatives!).

This is why Creative Commons licenses, which live on the spectrum between all-rights-reserved and no-rights-reserved[=public domain], are so well adapted to the academic world [5].

So copyrights are powerful - but who has this power? Copyright law vests this power in the creator, but I actually prefer the term rightsholder, since often the person who has the control is not the human being who did the creation. In particular, if the work of original authorship was created by an employee during the course of performing their normal job duties, then the rightsholder is the employer, not the employee. Copyright law recognizes this situation, called works-for-hire, as a fairly different one from individual creation, so that in fact the duration of copyrights made in this way is 120 from the year of creation or 95 years from the publication, whichever comes first, unlike the "life plus 70 years" term for a copyright held by a creator who is a natural person [6].

Note that the default in works-for-hire situations is that the employer gets the copyrights, but an employment contract can instead give those rights to the employee. Higher education faculty are often given this exemption from the default, but I urge you to look at your contract to see if you have it or not. In my experience, it is very inconsistently written into faculty contracts in higher education, and there can be internal contradictions in the exemption which may make the works-for-hire default come into play, and there can also be many exceptions and special cases in which the exemption is not said to apply [7].

Another very common choice made for the works-for-hire doctrine in educational contexts is extremely problematic, but leaves a tremendous opportunity for an innovative new policy: the traditional academic exception to the works-for-hire doctrine, whereby copyrights for scholarly and pedagogical works of original authorship are vested in their (individual human) creators is, in my experience, very often only applied to tenure-line faculty in four-year institutions of higher education. Contingent faculty - who make up around 75% of the instructional faculty! [8] - are usually left out of the traditional academic exception, as are faculty at community colleges, as are instructional designers and librarians, as are instructors and support staff in primary and secondary schools.

What this means is that the enormous existing and ongoing body of creative work by all of those folks subject to the undiluted works-for-hire doctrine is copyrighted by their employers. Test problems, explanatory handouts (perhaps amounting to entire chapters of new textbooks!), work sheets, slide decks for classroom use, discussion prompts for online fora: the rights to all of this material are held by colleges, universities, and school systems, not the natural persons who actually wrote them!

Consider how this applies to a "road-warrior" adjunct who teaches classes at several different institutions in order (hopefully) to put together a living wage. Such an instructor may make a wonderful handout or particularly pedagogically effective slide deck to teach a course at Institution A and then be unable to copy and distribute the handout or display the slide deck publicly at Institution B, where they also work, because to do so would be violated Institution A's copyrights over those works.

Here, then, are the policies I am suggesting which would correct the injustices being perpetrated in this way on contingent faculty in higher education and probably all employees in primary and secondary schools:

Proposed Policy 1: In all cases where copyrights over pedagogical materials are owned by the employing public educational institution at any level (primary, secondary, or tertiary) because of the works-for-hire doctrine in copyright law, those materials should be released with a OER-compatible Creative Commons license [9], with a specification that attribution statements should also mention the natural person who actually authored the materials.

Additional justifications for Policy 1: The justice of this policy for situations like "road-warrior" adjuncts mentioned above, seems clear. Additionally, this policy is not proposing taking rights away from any (natural) persons, since it merely asks for individuals - and the public at large! - to have greater access to works which are now owned by employers and not the creative employees themselves. The only entities who are losing something under this proposed policy are the institutions which are no longer owners of all-rights-reserved copyrights over the pedagogical materials in question. But I know of no instance where a public educational institution is making a profit selling copies, or by some other method allowed by all-rights-reserved copyrights, of pedagogical materials developed in-house. Yes, institutions sell services - courses! - built around such materials, but I don't know of any institution simply selling the materials.

Implementation issues for Policy 1: An institution could directly implement this policy simply because it is the right thing to do, for public educational institutions to give to the public the benefits of all of the work they do. If a particular institution is reluctant, presumably state-level oversight of public educational institutions could impose this policy. This could be an unfunded mandate, because we are merely asking public institutions to give the benefits of their work, of which they are already funding the creation by paying salaries, to the public and not requiring them to give up any current income stream. It is true that it would help to have a repository where these materials with their new open licenses could be shared with other educators, but as the benefit of this sharing is felt at a state or regional level, it would be appropriate for the state educational authorities to create and maintain that repository.

Thinking about the public benefit of sharing the curricular materials produced with public funds, as above, reminds me of the wonderful words from the American Association of University Professors' [AAUP] 1940 Statement of Principles on Academic Freedom and Tenure:

Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole.

As the opening of curricular materials embodied in Proposed Policy 1 is clearly a big step towards better serving the common good, and since the AAUP draws no distinction between public and private institutions, I think we might reasonably suggest that a better Policy would be

Proposed Policy 2: In all cases where copyrights over pedagogical materials are owned by the employing educational institution - public or private! - at any level (primary, secondary, or tertiary) because of the works-for-hire doctrine in copyright law, those materials should be released with a OER-compatible Creative Commons license, with specification that attribution statements should also mention the natural person who actually authored the materials.

Implementation considerations for Policy 2: I don't think this policy can be imposed by state departments of education on private institutions. This leaves the employees of such institutions to work from within for its adoption, and without for the educational world as a whole to make this just a natural expectation of academic culture. Additionally, accrediting organizations for higher educational institutions could be influential in making this kind of service of the public good an expectation of good institutional behavior.

For a final version of our proposed policy, we might ask ourselves why the same open licensing requirement is not imposed upon all faculty, regardless of whether they are currently given the traditional academic exception to the works-for-hire doctrine or not. Personally, I find the AAUP's declaration quoted above to express a point of view with which I identify very strongly. Since making curricular materials is a potent act in the service of the public good, I would be in favor of being extremely ambitious:

Proposed Policy 3: Pedagogical materials produced in educational institutions - public or private! - at any level (primary, secondary, or tertiary should all be released with a OER-compatible Creative Commons license.

Implementation considerations for Policy 3: It seems immaterial to me whether the open licensing is achieved by institutions retaining the copyrights per the works-for-hire doctrine but always releasing the materials with an OER-compatible CC license, or whether they allow employees to keep the copyrights but then require that the employees themselves apply the CC license.

This policy would take away some rights that some folks have now: those who now have the traditional academic exception to works-for-hire and who use it to try to sell textbooks or other curricular materials [10]. Personally, I have no compunctions about taking away this possible revenue stream from authors: I think we make choices to work in education, and if someone didn't want to make that particular choice, they could instead work for a for-profit curriculum creation company.

Note also that this kind of loss of a possible income stream from curricular materials as a consequence of choosing to work for a particular kind of institution already happens! By another quirk of U.S. Copyright law, works produced by federal employees - such as faculty and staff at the five U.S. military service academies - are born into the public domain. What this means is that an instructor at such an institution is already subject to an even more extreme [11] version of Policy 3. Yet scholars do choose to work for such institutions, so these kinds of strong policies insisting upon work that supports the public good do not drive away all potential employees.

I apologize, the above paragraph about the U.S. military service academies and the consequences for curricular materials developed there is not correct! The situation was as I just described up until 2019, and I have friends who are tenured faculty at the U.S. Air Force Academy who have personal experienced the situation I described and have had to develop work-arounds for dealing with scholarly journals, etc. However, in 2019, the U.S. Copyright Act was modified exactly to give civilian faculty at the twelve U.S. military service academies the copyrights to (most of) their curricular and scholarly works. See §105 - Subject matter of copyright: United States Government works of the U.S. Copyright Act for details.

Nevertheless, I believe the point is still valid that before 2019 the service academies were certainly able to hire qualified faculty despite the fact that those faculty did not have the expectation of monopoly profits from their curricular and scholarly copyrights.

I have presented above several versions of a licensing policy based on the works-for-hire doctrine in U.S. copyright law [12] which would quickly expand the current and future body of OER materials available for use by educators. The first version would only add to the rights enjoyed by all instructors while it would not have any costs of which I am aware, and so it should, I hope, be relatively easy to achieve. The second and particularly third versions would require more hard work, and even some sacrifice, by stakeholders and will be harder to realize. But personally I like the idea of fighting an ambitious battle for a solid tool that will make education more effectively serve the common good.

 
 

Notes:

  1. But be warned that IAmNotALawyer (and even if I were a lawyer, I wouldn't be your lawyer, since you haven't paid me a retainer!) so nothing I say here should be construed as legal advice.
  2. Tangible fixation is a requirement in the U.S. but actually not in a majority of jurisdictions on the planet. Because of this requirement, though, that magnificent explanation you invented off the cuff in class today is not subject to copyright protection unless you (or a student, perhaps surreptitiously!) were recording your lesson.
  3. Well, with some exceptions such as the scarily delicate concept of Fair Use, for which see the amazing "Code of Best Practices in Fair Use for Open Educational Resources"
  4. Maybe not for-profit educational institutions, to be sure.
  5. In fact, all CC licenses have the Attribution clause, requiring that an attribution statement be given for the original source - using the power of copyright to enforce the scholarly value of always giving credit where credit is due!
  6. As the law refers to actual human beings, unlike corporations ... even though corporations can be "persons" and "creators" in the law!
  7. Really, go look at your contract right now - you may be shocked and appalled!
  8. See, e.g., Data Snapshot: Contingent Faculty in US Higher Ed, https://www.aaup.org/news/data-snapshot-contingent-faculty-us-higher-ed#.YXwRYJ7MK70, accessed 4 May 2022.
  9. I.e., any CC license without the NoDerivatives clause.
  10. Note this is reminiscent of Teachers Pay Teachers, a site where primary and secondary teachers sell their curricular materials. As far as I understand things, this is done in complete ignorance of the fact that most such teachers do not have the rights they would need to make such sales, because they are subject to the works-for-hire doctrine.
  11. More extreme because their works are in the public domain and so don't even have the attribution requirement that all CC licenses include, and which Policy 3 would therefore require.
  12. In other countries, the works-for-hire doctrines may not exist at all or may be very different, so these proposals would all have to be modified quite a bit to achieve the same goals in those countries.

This post by Jonathan Poritz originally appeared in the OER & Beyond blog on 18 May 2022, where it was licensed CC BY 4.0.
If TASL attribution to this post is necessary, please use this OER&Beyond URL as the Source.