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icture a Utopian island where the early idealism of the Internet
still thrives. The K-12 community lives there: Teachers and
school officials use the unparalleled communications power
of the Web to freely share teaching aids, lesson plans, and
instructional ideas. But as the Internet becomes more and
more commercialized, the K-12 world will need to follow the
lead of higher education and define who owns this wealth of
instructional information. I don't mean to suggest that a
pastoral picnic has suddenly morphed into a land grab, but
it does seem to be time for school districts and teachers
to stake out their claims and negotiate some intellectual
property, or IP, agreements.
A growing marketplace for educational goods, paired with
the wide availability of easy-to-use authoring tools, is
a key force at play. A number of companies seek to buy proven
learning materials from classroom teachers, and the count
is growing as the dot-com economy recognizes education as
a hot and relatively stable industry segment. The rise of
technology hasn't changed any laws that apply to works on
paper, but the Internet and other high-tech tools have accelerated
educators' ability to create, share, or sell lesson plans,
online courses, tests, animations, and any number of digital
learning materials. And thanks to the Internet's insatiable
appetite for content, it's increasingly common for people
to regard education, or pieces of instruction, as a commodity.
Tutoring and homework-help sites have databases full of
instruction on specific topics. Other sites aggregate lesson
plans contributed by teachers. Quia
and GameBrain
are just two of many sites with learning games created by
teachers. Education
World allows teachers or districts to publish their
own workbooks and then sell them in an online marketplace.
And the Florida
Online High School recently reorganized as a state agency
so it can sell its complete courses outside the state. Other
virtual high schools report being approached by schools
wanting to buy their online courses with the hope that they
are less expensive than those sold by private companies
such as Apex
Learning.
The commercialization of learning materials might be traveling
at Internet speed through the hallowed halls of academe,
but policies guiding ownership of these digital learning
objects have not kept pace. The experiences of two companies
that actively seek to purchase work created by teachers
illustrate the K-12 world's tranquil management of intellectual
property and its imminent entrance to the shifting state
of affairs in higher education.
Company number one, Teacher
Created Materials of Westminster, Calif., has been buying
curricula from elementary and middle school teachers for
20 years. The company typically buys resources outright
but sometimes offers a royalty. Neither option delivers
a substantial amount of money to the teacher, though the
pay does rise for those who work with the company frequently.
Rachelle Cracchiolo, president, and Sharon Coan, editor
in chief, struggle to think of a time when a teacher and
a district disagreed over ownership of a submitted item.
Typically, they say, teachers own what they create, unless
the materials were developed for a specific district project
for which the teacher was paid extra or given released time.
In such cases, districts have always relinquished their
rights so the teacher can sell the material to Teacher Created
Materials, according to Cracchiolo and Coan. (In one instance,
though, a district required a free license to the property
from the company in return.) The introduction of electronic
submissions and content hasn't changed a thing.
Company number two, Academic
Systems of Mountain View, Calif. -- the higher education
division of Lightspan Inc. -- has more concerns about IP
because it buys online-learning units from university professors.
The company puts high-quality submissions in its new Active
Content Library, a Web-based resource to which higher education
students and institutions subscribe. Subscription revenue
is pooled, usage is tracked, and professors receive a royalty
based on how often students use their learning module.
As is the case with Teacher Created Materials, the faculty
member submitting the module is responsible for making sure
nobody else has rights to content used in the module, such
as a digital image of a painting. But unlike its K-12 counterpart,
Academic Systems always takes the step of making sure both
the faculty member and the institution agree on just who
owns that piece of online learning.
Often there are surprises. So often, in fact, that the
company now offers seminars to help institutions develop
intellectual property policies. According to a survey by
Coursemetric
of Berkeley, Calif., most institutions of higher education
see content as the property of the instructor, but more
than half indicate that the institution owns the course
as a whole. So, even though 90 percent of institutions have
a specific policy related to online course ownership, Academic
Systems, the professor, and the institution ask again: Who
owns this online lesson?
As these questions arise, individual professors are hammering
out new provisions to their employment contracts and unions
are beginning to define intellectual property issues in
higher education's collective-bargaining agreements. A two-year-old,
smoothly running agreement at Mott
Community College in Flint, Mich., for example, addresses
ownership of distance-learning courses. When the faculty
member is compensated for creating a course, the agreement
assigns ownership of the completed course package to the
institution. The faculty member, however, continues to own
all notes and materials used in creating the course.
The Mott contract also includes provisions giving the faculty
member who creates a course the first right of refusal for
teaching the course, specifying payment structures for the
sales of accompanying study guides created by the faculty
member, and requiring compensation when that faculty member
consults with somebody else who will be teaching the course.
 While
such agreements are increasingly common in higher education,
officials at the National Education Association and the American
Federation of Teachers say they are not aware of such bargaining
language for K-12 teachers. Even so, Cynthia Chmielewski, NEA
staff counsel, says she would like to see K-12 members and districts
address these issues. There has been a growing awareness of
IP issues in the past year, particularly among union leaders
and teachers involved with distance learning and technology,
says Chmielewski, adding that she expects K-12 to follow the
lead of higher education.
"We are now seeing all sorts of publishing houses and corporations
creating online courses and curriculum," she says. "It is
becoming a competitive environment, and we are seeing a
greater valuation of the kind of materials that teachers
produce. And, with a lot of people retiring, all these changes
are coming as a whole new generation comes in, some of them
with different assumptions." The NEA, Chmielewski says,
will be working to make K-12 members aware of why intellectual
property guidelines matter, primarily through putting background
materials on the union's Web site.
Chmielewski encourages what is called a shop-right arrangement.
Under such an arrangement, teachers or faculty members retain
ownership of the materials they create, but the institution
gets a license to use the materials as a part of its own
program. Chmielewski points out that copyright law was,
after all, originally intended to encourage creativity and
inventiveness. As she sees it, the shop-right arrangement
gives teachers an incentive to create high-quality materials,
and it gives districts access to those materials.
Chmielewski says she expects to see creative agreements
within shop-right arrangements, perhaps including a publicity
clause so the district is always recognized if the materials
are sold or otherwise used elsewhere. A shop-right arrangement
also makes it possible for teachers and districts to share
revenue when the materials are sold, she says. The district,
after all, might be a more powerful marketing force than
an individual teacher.
The shop-right arrangement might also be the most attractive
IP policy in the eyes of a new generation of teachers. As
record numbers of Baby Boomer teachers retire, NEA senior
technologist Don Blake says, school communities are headed
toward enormous changes. Blake has been studying the post-Baby
Boom generations, whose individualism is of particular interest
to the union. "They are not likely to see collective action
as an important way to get things done," says Blake.
As these young teachers come into the schools, they will
expect to make individual adjustments to their employment
contracts -- and given the teacher shortage, they are likely
to get what they want. According to Blake, these new teachers
might want to adjust their working hours, and they might
demand specific technology -- and, he says, they are highly
unlikely to agree to a work-for-hire clause. These are entrepreneurial
people who have grown up with technology, Blake says. Not
only do they use high-tech tools well, but they have a clear
picture of how commodities travel through the digital economy.
For now, though, it's more common for school districts
to have no IP policy at all, falling back on the corporate
work-for-hire concept when necessary. Districts typically
encourage the free exchange of resources between teachers,
recognizing that their community receives as well as gives.
When ownership of intellectual property must be defined,
the issue is most frequently resolved by deciding whether
the material was developed within the scope of a teacher's
employment. If so, it is deemed work-for-hire, and the district
that signs the paycheck owns the material. If teachers create
materials on their own, they can act as freelancers and
thus claim IP ownership.
An emerging technology called Knowledge Management, or
KM, puts work-for-hire in the spotlight. KM systems are
used widely in the business world to capture a company's
intellectual assets and allow other employees to learn from
them. The idea is that an authority on a particular subject
is given a template to use in translating that expertise
into a document. A learning specialist then turns the data
into an online learning unit that is available to the rest
of the company. Sometimes the raw information is fed directly
into the KM system, but -- to avoid the GIGO syndrome (garbage
in, garbage out) -- it's common for gatekeepers to evaluate
the resources going into the system.
KM is just on the horizon for K-12 education. A pilot KM
system in New Jersey's Deptford
Township Public Schools has teachers creating online
teacher-training materials using KM software from Generation21
Learning Systems of Golden, Colo. Mary Kline, the project
coordinator, is also a union representative and chair of
the local's professional development committee. As such,
she led a core team to define ownership of materials that
were to be created with the system.
The union's solution was to have all development time compensated.
When a Deptford teacher creates materials for the Generation21
system, those materials are considered the property of the
district once they are approved and published on the KM
system. The teacher, however, has the right to rescind the
contribution up until the point of publication.
Kline says there has been discussion but no resolution
on policy once the pilot project ends July 1. What if teachers
create materials on their own time? What if they spend much
more time on projects than they are actually compensated
for? Should the district make the teacher-training courses
available to other districts, much like a consortium, or
should it take a hard line and ask for compensation?
In these pioneer days for school use of KM systems, Deptford
has few ownership models to follow other than models from
the corporate world. Because the KM technology was developed
for the corporate market, it uses the corporate work-for-hire
model. Contributing to the system is defined as a part of
an employee's job, and the company owns the resulting resources.
Hal Resnick, director of strategic relations for Generation21,
says work-for-hire is an absolute necessity in the corporate
environment. Paying employees for their individual contributions
would be impossible, he says: "Where would it end? Do you
throw money into a kitty when somebody opens their mouth
at a meeting?" The transfer of the corporate policy to schools
also makes sense to Resnick. A district is liable for what
happens in the classroom, he reasons, so that implies that
the district has some ownership of the materials used in
the classroom.
Indeed, the district's responsibility for what happens
in K-12 classrooms is one issue that sets K-12 schools apart
from higher education models. Much of current case law defining
intellectual property for higher education turns on the
academic freedom of the faculty member for independent creation
of course content. But copyright law is not well defined
in higher education or K-12. Some interpretations of the
law, for example, say there is an "education exception"
to work-for-hire, though that concept has not yet been tested
in court.
Managing the ownership of online learning offerings might
prove to be more challenging than defining who owns those
offerings. Technologies that are just around the corner
will allow a district to tag any electronic "learning object"
with information describing who owns which percentages,
and other technologies just around the corner will track
usage and ownership and issue checks to the right parties.
These promising tools rely on what is known as "IMS meta-data
specifications" -- standards for defining or describing
learning objects. Right now, the standards can define who
authored something, what kind of medium it is, what ages
it is appropriate for, what subject areas it applies to,
and a wide range of other descriptive information. The IMS
Global Learning Consortium, which established the IMS meta-data
tags, has not yet created standard tags to define who owns
which percentage of an object. But when it does, a number
of companies are likely to build Web-based tools that would
allow a district to take that information, collect payments,
and issue checks. (For more information on IMS meta-data
specifications, see http://www.imsproject.org/metadata.)
A company called LCX (the Learning Content Exchange), for
example, is at work building a technology to be released
this summer that will manage fees and royalty payments for
"learning objects" in a university environment, but the
fledgling business is unlikely to expand to K-12 schools
anytime soon. Pat McElroy, founder of LCX, believes it will
be common for learning objects to be bought and sold, and
that individual modules will represent a far more robust
marketplace than complete online courses will.
Right now, it's possible to work with a closed system that
has some of these same capabilities. Generation21, for example,
uses the IMS meta-data specifications for learning objects
to tag each document -- or even components of documents
-- with descriptive information, such as topic area, creation
date, and authorship. In the corporate world, Generation21
has found, displaying the author's name raises the quality
of contributions. The company has created its own fields
to define ownership, and a component of its KM system can
track usage and distribute funds appropriately. Similarly,
companies such as Academic Systems and Education World tag
their products with meta-data descriptions built on these
standards, and then build their own economic engines to
sort out royalties.
As teachers become more sophisticated about IP issues,
and as the market continues to grow for individual learning
materials, rather than complete courses, school districts
will have to consult with their attorneys as well as their
unions to develop policies for the ownership of intellectual
property. The K-12 world might choose to follow models from
the corporate world or opt for models from higher education.
But whatever approach teachers and school leaders adopt,
the time has come to venture off that Utopian island.
Mary Axelson
is editor of Internet Strategies for Education Markets,
a newsletter published by the Heller
Reports.
For
More Information
"Copyright Considerations in Distance Education and Technology-Mediated
Instruction," by Kenneth D. Salomon. Dow, Lohnes & Albertson,
PLLC. American Association of Community Colleges, July 5,
2000; http://www.aacc.nche.edu/headline/070700head1.htm.
"Ownership of New Works at the University: Unbundling of
Rights and the Pursuit of Higher Learning." California State
University, 1997; online at the Web site of the Consortium
for Educational Technology in University Systems, http://www.cetus.org/ownership.pdf.
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Copyright © 2001, National School Boards Association.
Electronic School is an editorially independent publication of
the National School Boards Association. Opinions expressed by
this magazine or any of its authors do not necessarily reflect
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