* Assistant Professor of Law and Law Library Director, Ohio Northern University. J.D., 1986, University of Missouri-Columbia; M.S. in L.I.S., 1995, University of Illinois at Urbana-Champaign. I would like to acknowledge the contributions of my research assistant, Kyle Thompson.
1 Jacques Steinberg & Edward Wyatt, Boola, Boola, E-Commerce Comes to the Quad, N.Y. Times, Feb. 13, 2000, § 4 Week in Review, at 1.
2 See id.
3 See Douglas C. McMurtrie, The Book: The Story of Printing and Bookmaking 136 (1943)(“In the cultural history of mankind there is no event even approaching in importance the invention of printing with movable types.”); see also Levi Seeley, History of Education 164–65 (1899). Seeley argued that printing “multiplied readers a hundredfold; it stimulated authorship; it revolutionized literature, . . . it was a mighty influence in bringing about universal education.” Seeley, supra. This argument was echoed by Ralph L. Pounds, who wrote: “If there had not been some method for the cheap dissemination of knowledge in print, it would have been quite difficult to support any argument for popular education.” Ralph L. Pounds, The Development of Education in Western Culture 116 (1968). It has even been stated that “[t]he original copyright law upon which our system was based (England’s Statute of Anne) was a reaction to the invention of the printing press.” Bruce A. Lehman, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights 7, n.17 (1995).
4 See Ibrahim Michail Hefzallah, The New Educational Technologies and Learning: Empowering Teachers to Teach and Students to Learn in the Information Age 218 (1999).
5 The following have been identified as information technologies currently being used for distance education: audio cassettes, broadcast radio, broadcast television, compressed video, computer-aided-instruction, correspondence, interactive television, independent programmed learning (computer and paper based), multimedia (e.g., CD-ROM), satellite television, short-wave radio, telephone (often referred to as “POTS”—Plain Old Telephone Service), video cassettes, and the various Internet technologies. See Jill H. Ellsworth, Education on the Internet: A Hands-on Book of Ideas, Resources, Projects, and Advice 428–29 (1994).
6 See U.S. Copyright Office, Report on Copyright and Digital Distance Education 10 (1999) (citing Comment 1, Indiana Commission for Higher Education (“ICHE”), at 1; Comment 8, American Association of Community Colleges (“AACC”), at 2; Comment 20, University of Texas System, at 1) [hereinafter Report on Copyright]. This concept has been assigned other labels, including “distance learning,” “distributed learning” and “distributed education.” See id.
7 See id.
8 Id.
9 Id.
10 See id. at 9, 10. The earliest distance education arose in the nineteenth century, utilizing the cheap and reliable postal services then available. See Michael G. Moore & Greg Kearsley, Distance Education: A Systems View 20–24 (1996). In 1840, Isaac Pitman started a correspondence course in shorthand, relying on Great Britain’s “Penny Post.” See id. at 21. In 1856, Charles Toussaint and Gusav Langensheidt each began correspondence courses in languages. See id. The earliest documented such course in the United States was also in shorthand. See id. at 21–22. In 1883, the State of New York granted the Chautauqua Institute authority to award degrees through a correspondence program conducted through the mail. See id. at 20. After authorities rejected an attempt by educators at the University of Cambridge to establish a degree program by correspondence, one of its advocates, Richard Moulton, migrated to the United States, where he assisted William Rainey Harper in establishing the University of Chicago. See Moore & Kearsley, supra note 10, at 21–22. As president of the university, Harper established an extension program, making the University of Chicago the first university with a distance education program. See id.
11 See REPORT ON COPYRIGHT, supra note 6, at 13.
12 See id.
13 See John Tiffin & Lalita Rajasingham, In Search of the Virtual Class: Education in an Information Society 5 (1995).
14 The Internet is the product of a network created by the United States Department of Defense in the late 1960s called ARPAnet. ARPAnet was designed to withstand partial outages (such as might be caused by a nuclear attack) by communicating data via an Internet Protocol (IP) and addressed to a destination computer. The data itself would be divided into “packets” and these “packets” would be recombined upon reaching the destination computer, with verification schemes to assure that all the data had arrived. At first, only academic and research users had access to the network, but demand soon spread. See Ed Krol, The Whole Internet User’s Guide & Catalog 13 (2d ed. 1994). While electronic mail was one of the earliest uses of the Internet and probably remains its most widely used application, the advent of the World Wide Web, developed primarily at CERN, the European Particle Physics Laboratory in Geneva, Switzerland, was the application that brought the Internet to wide spread public awareness and use. See id. at 287.
15 See Krol, supra note 14, at 1 (stating that in the late 1980s, the Internet had only a few thousand users but that by the time of his book the number of Internet users had increased a thousand-fold.); see also Hefzallah, supra note 4, at 153 (noting the growth in number of Internet servers from 213 in August 1981 to 727,000 by January 1992).
16 See KROL, supra note 14, at 13. The development of the World Wide Web, begun in 1989 under the leadership of Tim Berners-Lee, used a new protocol, the hypertext transfer protocol (or http) to “link” together information resources on the Internet using various protocols (including telnet, file transfer protocol (ftp), gopher, and http itself). See id. CERN released the results of its research to the public domain in 1992. By 1993, a team at the National Center for Supercomputer Applications (NCSA) at the University of Illinois in Urbana-Champaign led by Marc Andreesen created a graphical web browser called Mosaic. See Cricket Liu et al., Managing Internet Information Services 279–80 (1994). Andreesen left NCSA the following year and became one of the founders of Netscape Communications, Inc., the maker of the first commercially successful Web browser. Interestingly enough, Mosaic was not the first graphical browser to become available; a law school-based project, Cornell University Law School’s Legal Information Institute, developed the first Windows-based Web browser (Cello). See Cornell Law School, The Legal Information Institute—A Quick Overview, (visited March 15, 2000) <http://www.law.cornell. edu/lii.html>.
17 See Hefzallah, supra note 4, at 154 (stating that as of January 1997, 71 million people were using e-mail, as compared to 57 million users of computer that provided World Wide Web, ftp, and other interactive TCP/IP services; by January 2001, these numbers are projected to increase to 827 million e-mail users and 707 million users of other Internet services, including the World Wide Web).
18 See Just How Wide is the Web?, PC Mag., Feb. 9, 1999, at 10 (citing a study by the market research firm IDC showing 68.7 million web users in 1997, growing to 97.3 million in 1998); see also Hefzallah, supra note 4, at 153 (noting the growth in number of Internet servers from 727,000 by January 1992 to 29,670,000 in January 1998).
19 See Just How Wide is the Web?, supra note 18, at 10 (projecting 131.4 million users by 1999, 170 million in 2000, and 227.7 million by 2001, a compounded annual growth rate of 26%); see also Hefzallah, supra note 4, at 153 (estimating 100,000,000 million servers by January of 2000).
20 See, e.g., Jeffrey R. Young, A Year of Web Pages for Every Course: UCLA Debates Their Value, Chron. of Higher Educ., May 15, 1998, at A29. At the time the article was written, UCLA, which offers to make Web pages for professors, assessing students a fee to pay the cost, had created more than 3000 courses during that year. See id.
21 For example, the University Technology Committee of Florida Gulf Coast University’s Standards for Specific Types of Web Pages states: “Within any given semester, all scheduled courses will be represented by a standard format home page.” See Florida Gulf Coast University, Web Design Standards, (visited March 15, 2000) <http://www.fgcu.edu/ utc/wds5.html>.
22 See Young, supra note 20, at A29. Some professors, fearing that the university might claim ownership of the course material they created, have rejected UCLA’s offer to help create Web pages for their courses.
23 See Report on Copyright, supra note 6.
24 See id. at 14 (citing National Center for Education Statistics, Distance Education in Higher Education Institutions: Incidence, Audiences, and Plans to Expand (Issue Brief, Feb. 1998)).
25 Id.
26 See id. at 15.
27 A communication is synchronous when the transmitter and receiver of information operate in the same time frame, such as a face-to-face conversation and a telephone call; a communication is asynchronous when the transmitter and receiver are operating in different time frames, such as a letter or an electronic mail message written by the transmitter in one time frame and read later by the receiver. See Tiffin & Rajasingham, supra note 13, at 104.
28 See Report on Copyright, supra note 7, at 16.
29 See id.
30 See id. at 11–12.
31 See id. at 19 (citing International Data Corp., Distance Learning Takes Off, Fueled by Growth in Internet Access, (Press Release, Feb. 2, 1999) (visited March 15, 2000) <http:// www.idc.com/Data/Consumer/content/CSB020999PR.htm>).
32 See id.
33 See Report on Copyright, supra note 6, at 19.
34 See id. at 22.
35 Pub. L. No. 105–244, 112 Stat. 1581 (1998).
36 See Tiffin & Rajasingham, supra note 13, at 125.
37 See Lisa Guernsey & Jeffrey R. Young, Who Owns On-Line Courses? Professors and universities anticipate disputes over the earnings from distance learning, Chron. of Higher Educ., June 5, 1998, at A21.
38 See Isabella Hinds, Marketplace for Licensing in Digital Distance Education, in Report on Copyright, supra note 7, at app. E, p. 19. Hinds noted that in the course of her investigation into the current licensing activities that impact distance education, she reviewed the programs and agenda of more than twenty-five conferences and workshops for distance educators. See id. Of these, only one had any reference to copyright and licensing. See id. at app. E, p. 19 n.6. That workshop was designed for academic administrators to discuss faculty creation and ownership of distance courses. See id. She noted that the workshop was “heavily subscribed almost immediately.” See id.
39 See Steinberg & Wyatt, supra note 1, §4 at 1; see also Amy Dockser Marcus, Any Student Can Have Him, Wall Street J., Nov. 22, 1999, at A1 (stating that after Professor Arthur Miller videotaped a ten-hour lecture series for Concord University School of Law, an on-line law school, Harvard began to rewrite its policies on how professors may use course materials. Other schools are doing likewise.).
40 See id. (discussing Harvard Law School’s interest in his lectures videotaped for Concord, Professor Arthur Miller noted: “I don’t think it’s undue cynicism to recognize that many of the old-format educational products—books, monographs, articles—produce no or very little revenue. They were of no concern to the university.” Miller’s colleague, Professor Alan Dershowitz has expressed a similar view. Referring to the controversy between Miller and Harvard, Dershowitz noted, “What distinguishes the Internet from everything else is the number of zeroes. The money is so overwhelming that it can skew people’s judgment.”).
41 See Guernsey & Young, supra note 37, at A21. At that time, Guernsey and Young stated: “At the moment, the debate is also somewhat abstract. Few electronic courses, if any, have become best sellers, or have even made much of a profit. There are even fewer examples of profit-hungry universities’ [sic] stripping professors of rights to course materials.” See id.; see also text accompanying notes 44–49.
42 See Guernsey & Young, supra note 38, at A21 (estimating the cost of developing “a complete digital distance education course for delivery over the World Wide Web at $10,000 to $15,000 per course.”).
43 See id.
44 Steinberg & Wyatt, supra note 1, §4 at 1; Marcus, supra note 39, at A1.
45 See Marcus, supra note 39, at A1.
46 See id.
47 See id.
48 Id.
49 See 17 U.S.C. § 201 (1994). Miller’s dispute with Harvard does not appear to center on ownership of the intellectual content contained in videotape but instead on Harvard’s policies restricting teaching at other institutions. See Steinberg & Wyatt, supra note 1, § 4 at 1. Ownership of course materials, however, has been recognized as being an issue in the dispute. For example, Professor Henry Louis Gates, Jr., the head of Harvard’s Department of Afro-American Studies, in commenting on the dispute for the New York Times article stated: “I’ve been teaching the same course, with modifications, for twenty-three years. I’ve taught at Yale, Cornell and Duke, too, and when I moved to a new university nobody said to me I couldn’t take my course with me because the university owned it.” Id. § 4 at 1.
50 Section 403 of the Digital Millennium Copyright Act, required the Register of Copyrights to submit to Congress “recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works,” including recommendations as to legislation appropriate to achieve this objective. Pub. L. No. 105–304, 112 Stat. 2860 (codified as amended at 17 U.S.C. § § 512, 1201 to 1205, 1301 to 1332 and 28 U.S.C. § 4001 (1994)); see also infra note 51 and accompanying text. In addition, presently bills are pending in both the House of Representatives and the Senate directly addressing distance education at the elementary and secondary school levels. See Digital Education Act of 1999, H.R.2965, 106th Cong.; Digital Education Act of 1999, S.1029, 106th Cong.
51 See generally U.S. Copyright Office, Report on Copyright and Digital Distance Education (1999).
52 See id. at 116–19.
53 See id. at 119–25.
54 Pub. L. No. 105–304, 112 Stat. 2860, § 403 (1998).
55 See discussion in supra note 22.
56 For example, Florida Gulf Coast University’s Institutional Policies and Procedures identifies as one of several issues to be address in its Strategic Plan for Distance Learning, the development of “[i]ntellectual property rights and ownership policies for materials, courses, and resources developed by FGCU faculty.” See Florida Gulf Coast University, Institutional Policies and Procedures, (visited March 15, 2000) <http://itech.fgcu.edu/distance/ Institutional_Policies_Procedures.html>.
57 See Steinberg & Wyatt, supra note 1, §4 at 1.
58 See, e.g., Jeffrey R. Young, UCLA Contract Shows Complexity of Issues Involving Ownership of On-Line Courses, Chron. of Higher Educ., June 5, 1998, at A23.
59 See Guernsey & Young, supra note 37, at A21.
60 See American Association of University Professors, Draft Statement on Copyright (visited March 15, 2000) <http://www.aaup.org/spccopyr. html> [hereinafter “Draft Statement”]. As noted earlier, the recognition of such ownership by educator is more a tradition than a rule of law. Those who seek a legal basis often point to a “teachers’ exception” to the work-for-hire provisions of the 1909 and 1976 Acts, but can point to no controlling authority to support it. See id.; see also Steinberg & Wyatt, supra note 1, §4 at 1.
61 See Draft Statement, supra note 60. The AAUP Draft Statement on Copyright argues that academic freedom is threatened if the institution is the owner because “it would have the powers, for example, to decide where the work is to be published, to edit and otherwise revise it, to prepare derivative works based thereon (such as translations, abridgments, and literary, musical, or artistic variation), and indeed to censor and forbid dissemination of the work altogether. Such powers [are] deeply inconsistent with fundamental principles of academic freedom.” Id.; see also Ownership of On-Line Material, Letters to the Editor, Chron. of Higher Educ., July 24, 1998, at B9 (“If I contribute to a brochure, policy statement, or World-Wide Web page for my institution, that may be work for hire. I am representing the institution, not myself, and the institution should have the right to edit, translate, or rewrite any of the material . . . . But when I design a course, the choice of material, the order and method of presentation and discussion, the tools for assessment, and—most importantly—the intellectual coherence of the course are mine and reflect my education, scholarship, and point of view.”).
62 See Draft Statement, supra note 60. Resources used include office space and supplies, library materials, computers, networking, university staff and student assistants.
63 See Steinberg & Wyatt, supra note 1, §4 at 1.
64 See Draft Statement, supra note 60.
65 See id.
66 See text accompanying notes 78–182.
67 See 17 U.S.C. § 204(a) (1994) (providing: “A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”). While no case addressing whether a contract between a faculty member and her institution which incorporate by reference a copyright policy has arisen, there is no reason to believe such incorporation by reference would not be sufficient to effect a transfer of copyrights. Whether all institutions in fact have a clause in their contracts with faculty that incorporate by reference such policies is another issue. In addition to being signed by the author, the writing purporting to transfer copyright ownership must be clear. See, e.g., Papa’s-June Music, Inc. v. McLean, 921 F. Supp. 1154, 1158–59 (S.D.N.Y. 1996) (citing Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990)) (“[A] writing memorializing the assignment of copyright interests ‘doesn’t have to be the Magna Carta; a one-line pro forma statement will do.’ However, the terms of any writing purporting to transfer copyright interests . . . must be clear.”).
68 See Steinberg & Wyatt, supra note 1, §4 at 1; Marcus, supra note 39, at A1.
69 See Draft Statement, supra note 60.
70 Id.
71 See id.
72 Id.
73 See id.
74 See Draft Statement, supra note 60.
75 Id.
76 See id.
77 See text accompanying notes 78–182.
78 See 17 U.S.C. § 102 (1994).
79 17 U.S.C. § 102(a). Section 102(a) provides:
Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works; . . .”
Id. It seems clear that such sites are copyrightable so long as they represent original works of authorship. Such files are fixed in a “tangible medium of expression,” namely an Internet server’s hard drive, “from which they can be perceived, reproduced, or otherwise communicated . . . with the aid of a machine of device,” that is, by retrieval of a copy of the computer file or files making up a web page from the server on which the file or files making up the page are stored through the use of a web browser, such as Netscape Navigator or Internet Explorer, which, when retrieved, is displayed by the browser on the monitor of the computer through which the file or files making up the web page were requested.
That the work is fixed on a server’s hard drive instead of paper, film, or some other older media would have no bearing on whether or not it is an original work of authorship. There are two factors used to determine whether or not a work is original: it must be of independent origin and represent at least a minimal amount of creativity. See Baltimore Orioles, Inc. v. Major League Baseball Players Assoc., 805 F.2d 663, 668 (7th Cir. 1986) (citing L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 (2nd Cir.) (en banc), cert. denied, 429 U.S. 857 (1976)); Withol v. Wells, 231 F.2d 550, 553 (7th Cir. 1956); M. Nimmer, Nimmer on Copyright § 2.01 (1985). The Baltimore Orioles court distinguished the concepts of originality, creativity and novelty, stating that “[a] work is original if it is the independent creation of its author. See 805 F.2d at 668 n.6. A work is creative if it embodies some modest amount of intellectual labor. See id. A work is novel if it differs from existing works in some relevant respect.” See id. The court concluded: “For a work to be copyrightable, it must be original and creative, but need not be novel.” Id. Faculty created web material certainly can meet these tests, though it will require evidence in each case to determine whether or not a particular work does in fact meet these tests.
80 17 U.S.C. § 201(a).
81 See 17 U.S.C. § 201(b).
82 See 17 U.S.C. § 101.
83 U.S. Const. art. 1, § 8, cl. 8.
84 See Act of May 31, 1790, ch. 15, 1 Stat. 124 (1790).
85 See William Frassanito, The Photographers of Antietam, Civil War Times Illustrated, Aug. 1978, at 17. Alexander Gardner and James F. Gibson, two Brady operators, copyrighted their photographs of Antietam but Brady claimed credit and included the photographers’ copyrights only in fine print. This practice actually led Gardner and others to leave Brady’s employment following the Battle of Antietam. Brady sold the images to Harper’s Weekly which used them for engravings displayed in their publication, and also held an exhibit in his New York studio entitled “The Dead of Antietam.” See id.
86 See Leonard D. DuBoff, An Academic’s Copyright: Publish and Perish, 32 J. Copyright Soc’y 17, 18 (1985) (citing Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903)); Colliery Engineering Co. v. United Correspondence Schools Co., 94 F. 152, 153 (S.D. N.Y. 1899).
87 See Colliery, 94. F. at 153.
88 See id.
89 Id.
90 188 U.S. at 248–49 (citing Colliery, 94 F. at 153).
91 See DuBoff, supra note 86, at 18.
92 See Act of March 4, 1909, ch. 320, Pub. L. No. 60–320, 35 Stat. 1075 (1909).
93 Id. at § 62.
94 DuBoff, supra note 86, at 19, citing B. Ringer, Study No. 31: Renewal of Copyright (1960), reprinted in 2 Omnibus Copyright Revision Legislative History, at 105–90 (G. Grossman ed. 1976).
95 Id. at 138.
96 DuBoff, supra note 86, at 21 (citing Siegel v. National Periodical Publications, Inc., 508 F.2d 909 (2d Cir. 1974)); Shapiro, Bernstein & Co. v. Bryan, 123 F.2d 697 (2d Cir. 1941); National Cloak & Suit Co. v. Kaufmann, 189 F. 215 (C.C. Pa. 1911).
97 17 U.S.C. § 101 (1994). A work can also be for hire where it is “specially ordered or commissioned” under one of nine specifically defined circumstance “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” Id. This appears to apply to works prepared by independent contractors, not employees. Since a writing is required to make such a work a work for hire, this Article will not address works of this type as they may relate creations of faculty members. It should be noted, however, that among the types of work covered by this provision are “contributions to a collective work, . . . instructional text, . . . a test, . . . answer material for a test.” Id. If a faculty member preparing such works is not an employee of the institution for which they are prepared and if no written instrument exists showing an express agreement otherwise, the faculty member would appear to be entitled to the copyright in such works.
98 17 U.S.C. § 201.
99 See, e.g., Brunswick Beacon, Inc. v. Schock-Hopchas Publishing Co., 810 F.2d 410 (4th Cir. 1987); Evans Newton Inc. v. Chicago Sys. Software, 793 F.2d 889 (7th Cir. 1986), cert. denied, 479 U.S. 949 (1986); Aldon Accessories Ltd. v. Spiegel, Inc., 738 F.2d 548 (2d Cir. 1984), cert. denied, 469 U.S. 982 (1984).
100 See Dumas v. Gommerman, 865 F.2d 1093, 1102 (9th Cir. 1989).
101 See Easter Seal Society for Crippled Children & Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F.2d 323, 334–35(5th Cir. 1987).
102 See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 736 (1989).
103 See id. at 733.
104 See id. at 734.
105 See id.
106 See id.
107 See Reid, 490 U.S. at 733–34.
108 See id. at 735.
109 See id. at 735.
110 See id.
111 See id. at 736.
112 See Reid, 490 U.S. at 743–48.
113 Id. at 739–40.
114 Id. at 740.
115 Id. at 751–52.
116 Id. at 752.
117 See 980 F.2d 857, 865 (2nd Cir. 1992).
118 Id.
119 See id. at 861.
120 See id.
121 Aymes, 980 F.2d at 861.
122 Id.
123 See id. (citing Marco v. Accent Publ’g Co., 969 F.2d 1547 (3rd Cir. 1992); MacLean Assocs., Inc. v. Wm. M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769 (3rd Cir. 1991); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir. 1990); Johannsen v. Brown, 797 F. Supp. 835 (D. Or. 1992); Kunycia v. Melville Realty Co., 755 F. Supp. 566 (S.D.N.Y. 1990); Kelstall-Whitney v. Mahar, No. CIV. A. 89–4684, 1990 WL 69013 (E.D.Pa. May 23, 1990)). It should be noted that the Reid decision does not suggest the weighted approach.
124 See id. at 862–64.
125 See id. at 861.
126 See supra notes 20 and 21 and accompanying text.
127 See Aymes, 980 F.2d at 861.
128 See id.
129 See id.
130 See id.
131 See supra notes 21 and 22 and accompanying text.
132 See Aymes, 980 F.2d at 861, 863; Reid, 490 U.S. at 751–52.
133 See id.
134 See discussion supra note 48..
135 See Miller v. CP Chemicals, Inc., 808 F. Supp. 1238, 1240, 1244 (D. S.C. 1992).
136 See discussion supra note 48.
137 See Reid, 490 U.S. at 751.
138 See id.
139 See id. at 751–52.
140 See id. at 752.
141 See id.
142 See, e.g., Reid, 846 F.2d at 1487 (The plaintiff organization, Community for Creative Non-Violence, was a non-profit, unincorporated association.).
143 See N.L.R.B. v. Yeshiva University, 444 U.S. 672, 679 (1980)(holding that full-time faculty were managerial employees under 29 U.S.C. § 152 (12) (1997)). Although the Court was applying statutory definitions and thus this case is not directly on point, it is interesting to note that none of the parties challenged a finding that full-time faculty were employees. See id. at 681. The only issue was what category of employees they were under the National Labor Relations Act. See id. at 674–75.
144 See 17 U.S.C. §101 (1994).
145 See Miller, 808 F. Supp. at 1243.
146 See Newark v. Beasley, 883 F. Supp. 3, 7 (D.N.J. 1995).
147 See Miller, 808 F. Supp. at 1242–44.
148 See id. at 1240.
149 See id.
150 See id.
151 See id.
152 See Miller, 808 F. Supp. at 1242–44.
153 See id.
154 See id. at 1240–41.
155 See id. at 1242–44.
156 Id. at 1242.
157 See Miller, 808 F. Supp. at 1243 (citing Restatement (Second) of Agency § 228 (1958).
158 See id. (citing Restatement (Second) of Agency § 229 cmt. b (1958).
159 Id. (citing Restatement (Second) of Agency § 229cmt. b (1958)) (emphasis added).
160 See id. at 1243–44.
161 See id. at 1243.
162 See Miller, 808 F. Supp. at 1243.
163 See id.
164 See id. at 1243.
165 See id. at 1244.
166 See Marshall v. Miles Laboratories, Inc., 647 F. Supp. 1326, 1331 (N.D. Ind. 1986).
167 See id. at 1330.
168 See id.
169 See id. at 1331.
170 It is typically presumed that a college professor prepares his or her own course materials, though he or she may rely upon the works of others in preparing such materials. For purposes of the analysis, it is safe to assume such preparation for if an educator had not prepared his or her own course materials, then there would be no basis for an ownership dispute between the educator and the university.
171 See, e.g., Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 5.03[B][1][b][i] & n.94, at 5–34 to 5–35 (1994); Laura G. Lape, Ownership of Copyrightable Works of University Professor: The Interplay Between the Copyright Act and University Copyright Policies, 37 Vill. L. Rev. 223, 246 (1992); see also Philip T. K. Daniel & Patrick D. Pauken, The Impact of the Electronic Media on Instructor Creativity and Institutional Ownership within Copyright Law, 132 Educ. L. Rep. 1 (1999).
172 See, e.g., DuBoff, supra note 86, at 18; Todd F. Simon, Faculty Writings: Are They ‘Works Made for Hire’ Under the 1976 Copyright Act?, 9 J.C. & U.L. 485, 508 (1982–83).
173 See Hays v. Sony Corp. of America, 847 F.2d 412, 416 (7th Cir. 1988).
174 See id. at 413.
175 Id. at 416.
176 See id. Interestingly, the court set off “to one side cases where a school directs a teacher to prepare teaching materials and then directs its other teachers to use the materials too.” Id. This caveat calls into the question the use of a teachers’ exception with respect to distance education materials since the situations appear analogous to each other.
177 See id.
178 Hays, 847 F.2d at 416. The court notes the lack of discussion of this issue in the legislative history and asserts that “no political or other reasons come to mind as to why Congress might have wanted to abolish the exception.” See id.
179 See id. The court addressed the issue of a teachers exception in relation to Sony Corporation’s claim for sanctions under Rule 11 of the Federal Rules of Civil Procedure. See id. at 418–19. The court held that the teachers had failed to perfect their appeal from a lower court’s dismissal for failure to state a claim. See id. at 419. The court went as far as to note “[w]e need not try to decide the issue in the present case, for even if the [1976 Act] abolished the teachers exception this would not necessarily spell victory for Sony.” Id. at 415.
180 See 17 U.S.C. § 101 (1994). The 1976 Act defines a “work made for hire” as including “a work specially ordered or commissioned for use . . . as an instructional text, as a test, as answer material for a test . . . if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” Id. This section could be interpreted as supporting a teachers’ exception as to those type of educational materials that can be overridden by a signed writing. One arguing against a teachers’ exception could point to this language and assert that any other type of educational material should be presumed to be a work made for hire if the educator is an employee and created it in the scope of her employment. This, however, takes the quoted language out of context and assigns more meaning to it than the entire definition of a “work made for hire” would seem to indicate.
181 See Steinberg & Wyatt, supra note 1, §4 at 1; Marcus, supra note 39, at A1.
182 See Marcus, supra note 39, at A1 (Professor Henry Louis Gates, Jr. exemplifies this attitude. Commenting on Professor Arthur Miller’s dispute with Harvard, he said: “I’ve been teaching the same course, with modifications, for 23 years . . . . [W]hen I moved to a new university nobody said to me I couldn’t take my course with me because the university owned it.”).
183 See Colliery, 94 F. at 153.
184 See discussion in supra note 22.
185 An author under the Copyright Act possesses a “bundle of rights.” These include the right to reproduce the work, to prepare derivative works, to distribute copies of the work to the public by sale or other transfer, to publicly perform certain types of work, to publicly display certain types of work, and to publicly perform the work by means of a digital audio transmission. See 17 U.S.C. § 106. There is no sound public policy reason why these rights must all reside in a single person. Certainly there is no reason to prevent the faculty and universities from allocating these rights between themselves, nor is there any sound reason why a default allocation of rights could not be created by statute.
186 See University of Maryland, Copyown, A resource on copyright ownership for the higher education community, (visited March 15, 2000) <http://www.inform.umd.edu/copyown/policies/index.html> (containing links to the intellectual property policies of more than 100 institutions of higher education).
187 For example, universities which have instituted policies of this type include: Auburn University, Case Western Reserve University, The University of Chicago, Clark University, Dartmouth University, Iowa State University, University of South Carolina, Southern Illinois University and Yale University.
188 For example, universities that favor more detailed policies and guidelines include: University of Arizona, Brigham Young University, Brown University, Carnegie Mellon University, University of Georgia, Indiana University, Ohio State University, Syracuse University, Tulane University, University of Utah, and Washington University in St. Louis.
189 Length, naturally, is not always an accurate measure of the quality of the policy. What is of importance is the degree to which the policy provides a clear understanding of who has what rights. An ambiguous policy or one that tries to define every conceivable scenario may create more problems than it solves, particularly if the scenario that develops falls outside any of the scenarios described. Nonetheless, as in the drafting of any other agreement, definition of terms whose meanings may be less than certain and the inclusion of provisions covering specific categories of works are preferred over those that give cursory treatment of the subject in general without recognition of the differences between types of work.
190 See Indiana University–Purdue University Indianapolis, Distant Learning Faculty Agreement (visited March 15, 2000) <http://www.iupui. edu/~copyinfo/dlagreemt.html>. The agreement was drafted by the Copyright Management Office at Indiana University–Purdue University Indianapolis, directed by Professor Kenneth D. Crews of that university’s college of law. The Copyright Management Office’s web site contains a wealth of material related to the topic of this article. See Indiana University–Purdue University Indianapolis, Copyright Management Center (visited March 15, 2000) <http://www.iupui.edu/~copyinfo/>. The proposed agreement could serve as a model for other institutions, though this author believes that Section 2.2 is not entirely clear on whether a faculty member could use materials prepared pursuant to the agreement in a traditional classroom course taught at another school.