VOL. 15, No. 2, 85-96
At Athabasca University an unpublicized and unquantified impression was that more staff and research were needed in the area of copyright licensing and permissions. To gain a broader base of information about copyright operations than was possible from an internal review, as well as to determine how the operations of the Copyright Office might be restructured and made more efficient, an international benchmarking study of other leading distance education institutions was conducted in 1998. Of 17 institutions invited to participate in the study, 10 reported on their copyright functions. This article summarizes the findings of the study and discusses the implications for copyright operations at Athabasca University and at other distance education institutions, including the role of the copyright officer and ethical questions of institutional intellectual ownership.
A l'Université Athabasca, on avait le sentiment, bien qu'il n'ait jamais été publicisé et quantifié, que plus de recherches et de personnels étaient nécessaires dans le domaine de la gestion des droits d'auteur et de reproduction. Afin de documenter, plus adéquatement, que seulement à l'interne, le contexte de cette question et afin également de mieux définir et structurer le « Copyright Office », une étude comparative internationale d'autres grandes institutions de formation à distance a été entreprise en 1998. Des dix-sept institutions invitées à participer à l'étude, dix nous ont fourni des informations concernant leurs gestions des droits d'auteur. Cet article résume les résultats de cette étude et explique les implications pour la gestion des droits d'auteur à l'Université Athabasca ainsi que pour d'autres institutions de formation à distance incluant le rôle du responsable de la gestion des droits d'auteur et des questions éthiques sur la propriété intellectuelle.
Athabasca University, Canada’s Open University, was established in 1970 as Alberta’s fourth government-supported university. In contrast to the three traditional universities, Athabasca University’s mandate was to offer undergraduate courses and programs via a variety of home-study modes: textbooks, printed study guides, audio- and video-recordings, and telephone tutoring. In the past five years Athabasca University has used electronic materials via CD-ROM and the Internet to supplement the traditional paper-based undergraduate courses. In addition, three graduate programs—Master of Distance Education, Master of Business Administration (now the largest in Canada), and Master of Health Studies—conduct almost all teacher-student and student-student interactions through computer-conferencing via the Internet.
Before the textual, graphic, or digital information of others may be incorporated into course materials, respective copyright owners must first grant the institution permission to reproduce this material. Copyright owners include publishers, media companies, estates, composite groups, and individual artists and authors. At Athabasca University investigating, requesting, and securing such permission is the responsibility of the Copyright Office, which is staffed by a full-time copyright officer and a part-time assistant.
Course registrations at Athabasca University have increased 55% in the past three years; costs for copyright clearance activities have increased accordingly. In 1998, after reporting a doubling of their workload over the previous year, those responsible for copyright clearances requested additional staff. Before responding to this request, it was decided to survey other institutions where copyright clearance of distance education course materials is a significant activity. The purpose of the study was to learn how these institutions structure and manage their copyright operations and then to use these finding as a basis for decision-making at Athabasca University.
A sample of 17 higher education institutions was selected for their demonstrated commitment to distance education. Following initial correspondence, a contact person at each of the institutions was identified. A 24-item questionnaire focusing on various features of copyright clearance was mounted on a Web page in 1998, and invitations to participate in the study were then sent to the institutions. Ten institutions returned complete responses. Eight of these are unimodal (institutions where the primary emphasis is distance delivery): Athabasca University (Canada), CJRT (Canada), Open College (Canada), FernUniversität (Germany), International Extension College (United Kingdom), NKI (Norway), Open Learning Agency (Canada), Open University (OUUK), and Télé-université- Quebec (Canada). Two institutions are bimodal (conventional institutions using distance education methods as a secondary or supplementary method of course delivery): Brigham Young University (USA) and Deakin University (Australia). Of the seven nonresponding institutions, five indicated either that copyright clearances are administered by the university’s bookstore or that copyright functions are the responsibility of individual faculties. Two institutions chose not to respond.
As indicated in Table 1, neither the title of the staff members with major responsibility for copyright nor the institutional units in which they are located reveals any particular pattern. The titles range from manager, managing editor, coordinator, and technician to assistant and clerk. For the purposes of this study, copyright staff are referred to as copyright officers. At Brigham Young University, a traditional face-to-face instructional institution where distance education (“independent study”) is of secondary priority, the Director of High School Programs in the Department of Independent Study performs some of the duties of the copyright officer. At CJRT and International Extension College (IEC), both much smaller institutions than the others, the survey respondents indicated that they were the sole individuals with copyright clearance responsibilities.
Each of the institutions where distance education is the primary or complementary priority reported at least one institutional unit dedicated to copyright functions. In the two smallest institutions, CJRT and IEC, institutional units have not been established to carry out copyright clearance activities. The number of staff members in the six units for which figures were supplied, however, varies from a low of 1 or 2 at four institutions to 13 at OUUK. Of interest is the apparent fusion of copyright clearances for both face-to-face and distance instruction at Brigham Young University, manifested in the link between the Department of Independent Study and the Copyright Clearance Center in the university bookstore.
Up to five major copyright-related functions were identified by responding institutions: (a) copyright clearance, (b) overseeing compliance, (c) granting permissions, (d) orientation and training, and (e) advice and policy.
Copyright clearance. All of the copyright officers have in common the responsibility, in coordination with instructors, authors, and editors, to obtain clearances for all paper and electronic course materials, including reprints of out-of-print texts, compilations of readings, audio- and video-recordings, and online text material.
Overseeing compliance. Copyright officers are responsible for copyright contracts with authors, compliance with statutory licenses, responses to copyright questions, and administration of copyright contracts and licenses. When permission to reproduce material is denied, the copyright officer must ensure that the material is not used by the institution.
Granting permissions. In at least one case the copyright officer is responsible for granting permission to reproduce material for which the institution holds the copyright. At the Open Learning Agency (OLA) the copyright officer coordinates and maintains a record of trademarks and issues the ISBNs for OLA-produced materials.
Orientation and training. All but three of the 10 responding institutions provide some level of orientation and training for instructors and course authors, and several universities provide guidelines on copyright to their course authors. The copyright officer at Télé-université reported that their professors are “reminded” about copyright laws and information services available at the copyright office. Deakin University conducts an ongoing computer conference with a question-and-answer forum. The most common forms of training are one-on-one sessions in response to specific requests and the preparation and circulation of printed or online publications. Several institutions report organizing internal and external information sessions related to copyright. OUUK prepares short briefing papers as part of its staff induction/training program. Brigham Young University conducts in-house retreats, seminars, and lectures presented by copyright specialists from other institutions and government agencies.
Advice and policy. At OUUK the most specialized of the institutions sampled, the Rights Department advises on all matters relating to copyright and related rights, trademarks, and defamation. Yet another function of the Rights Department is contributing to policy development relating to these areas. Several institutions in the sample reported carrying out similar functions.
Table 2 reveals differences in the magnitude of both course production and copyright clearance activities among the 10 institutions for the year before the 1998 survey.
CJRT reported three distance education courses. Whereas Athabasca University and Open Learning Agency (OLA) each reported a total of 65 courses in the previous year, FernUniversität reported having produced 23 times that number with a total of 1,500 courses. Reflecting that some courses require multiple copyright clearances, there are even larger differences among the reporting institutions. Again, the two smallest institutions reported minimal clearance activity. The 61 clearances reported by NKI represent a 23% decrease from the previous year. Although it cleared 10 times that number, Deakin’s 600 clearances represent a 30% decrease from the previous year. Perhaps reflective of the growing competitiveness in distance education by traditional face-to-face institutions, Brigham Young University generated about as many clearances as OLA, a unimodal distance education institution. Athabasca University’s 1,200 clearances are twice the number reported by OLA and Deakin University, but only 27% of the number of clearances reported by OUUK.
The volume of clearances compared with the numbers of staff in the copyright offices (see Tables 1 and 2) indicates a broad-ranging workload. At NKI, with a staff of eight and a reported 61 clearances, each staff member would be working on an equivalent of nearly eight clearances per year. Compare this workload to Open Learning Agency, where one staff member works on all 600 clearances, or Athabasca University, where the full time copyright officer works on 667 clearances per year and the part-time officer works on the remaining 533. Falling between these extremes are Brigham Young University, with 300 clearances handled by one copyright officer; OUUK, with 308 clearances per copyright officer; and Télé-université, with 200 clearances per full-time copyright officer.
Most institutions reported paying for copyright clearances on receiving invoices from copyright owners. Deakin University reported that most of the clearances are paid as annual fees under various statutory license schemes. OUUK reported operating “a self-billing system that allows for payment to rights owners in respect of individual items, both for student use and commercial exploration.”
One effective way to secure copyright clearances is to use a copyright collective such as CANCOPY (Canada), the Copyright Licensing Agency Ltd. (UK), or KOPINOR (USA). In descending order the percentages of clearances obtained through such collectives for the seven institutions that responded to this question were: 95% for Deakin University, 70% for Brigham Young University, 62% for Athabasca University, 16% for FernUniversität, 15% for Télé-université, less than 1% for the Open Learning Agency, and none for the OUUK (“No scheme is relevant”). In this study we cannot determine whether contracting with copyright collectives lowers copyright office costs.
The two reporting institutions that volunteered both clearance and financial information present a sharp contrast in the amounts of direct costs paid for clearances. Although its number of clearances in 1997-1998 was half that of Athabasca University, Deakin paid 555% more than did Athabasca University. This difference in clearance fees may be due to higher costs per clearance, higher numbers of student users per set of cleared materials, or differing patterns of citation used by course authors at the two institutions. Perhaps Deakin’s higher usage of a copyright collective for clearances contributes to this cost. The respondent at Deakin University offered an additional explanation: “[In Australia] we have statutory licenses so we request permissions for these if we are over our statutory limit. We try to keep `overuse’ to a minimum to avoid extra costs and time needed to obtain direct permissions.” The respondent added, “The statutory licenses do not cover digital copying.” Given the enormous volume of copyright-clearance activity at OUUK, one would expect its direct costs to be higher than those encountered by any of the other institutions.
In response to the question “What procedures does your institution follow to ensure that it is up-to-date on copyright laws and policies?” respondents named a total of 26 procedures. Despite their variation, the responses fall into two major categories: 10 referred to consultation with such professional advisors as a general council or solicitor, librarian (Deakin University reported having consulted with a full-time copyright researcher attached to the library association), copyright collective, professional association, and government. Seven responses referred to consulting books, magazines, or Web-based documents. Two other reported sources of information were seminars and workshops, mentioned twice; and learning-by-doing (projects) mentioned once.
The copyright officer must cultivate the institution’s reputation among copyright holders and promote proper use of copyright materials in the institution. Respect for copyright distribution is sometimes confusing to course authors, who simply want to supply the best information possible to their students. To ensure the copyright is not abused in the institution, copyright officers must keep current with copyright case law, both in their own country and internationally.
By attending workshops and conferences and reading newsletters and listservs on intellectual property law, copyright officers can be in a position to distribute current information to course authors, who may otherwise trivialize copyright compliance.
The present information technology revolution has been sudden and pervasive, making policies and regulations concerning copyright processing highly fluid. If copyright officers are to ensure that their institutions continue to comply with the ever-shifting legal framework, they must continually update their knowledge of copyright issues. For example, in creating an Internet-based multimedia display, the copyright officer will contact the rights-holders of the text, the sound, and the graphics; owners of any logos or trademarks inadvertently involved; and any other creators who have contributed to the collaborative piece. Obtaining such clearance is expensive and time-consuming. Although many copyright holders may be reluctant to allow their works onto the “free range” of the Internet, the copyright officer must convince copyright holders of the purely educational purpose of the project or course, as well as the technological sophistication and password restrictions of the Web system. The copyright officer must establish trust among copyright holders and earn respect for their purposes in the spirit of furthering knowledge. The flux of technology in distance education practices means that copyright officers are creating “standard practice.”
Using copyright licensing agencies reduces time required in securing copyright clearance, although, as evidenced with Deakin University, their use does not always result in lower clearance fees. These same copyright licensing agencies have yet to complete workable agreements to use materials electronically. One obstruction to progress in this area has been the myth that making material available electronically means that it will be distributed to someone else’s monetary benefit, thereby abusing the copyright owner’s rights. Trust of the user’s purposes must be established. Electronic use should be restricted and users of the electronic works made aware that material is copyrighted and protected by copyright law. Licensing agencies will need to assure copyright owners that effective measures can and will be taken to protect their interests. Copying protected electronic information and selling it to classmates or the general public (a copyright holder’s worst nightmare) is no different than photocopying print material and selling it. Each is possible and in violation of the same copyright laws. Due to minimal case law and evolving technologies, copyright officers and those dealing with intellectual property are creating standard practice in this area.
When respondents were asked “In your view, what are the three most pressing issues related to copyright facing your institution?” they named the issues listed in Table 3. Aggregating the similar responses, 10 categories of issues can be identified: digital materials (Internet, multimedia, broadcast, etc.) were mentioned nine times; issues relating to staffing and work volume were mentioned four times; intellectual property for university-owned materials was mentioned three times; rising costs, gathering, and dispersion of information, and dealing with changes in copyright law or responding to more restrictive conditions imposed by copyright owners were each mentioned twice; and tracking clearances, dealing with publishers’ unresponsiveness to requests, updating processes for new media, and accessibility of electronic materials were each mentioned once.
As those responsible for licensing third-party copyright, copyright officers are sometimes also responsible for licensing the use of institutionally created materials, as reported by three respondents to this study. Underlying intellectual ownership of university-created materials is the question of whether the university recognizes either the scholarly effort put into the creation of knowledge or the value of this knowledge in a global perspective. Recognizing this value leads to a series of ethical questions: How will this value be realized? Is it the university’s objective to obtain funds from intellectual endeavors? Who owns copyright, the university or the knowledge creators hired by the university?
According to standard agreements, and by default law, the employer owns copyright on materials created during an individual’s employ. Should institutions, and in particular their copyright licensing offices, restrict the flow of knowledge for an institution’s gain? Perhaps, if it leads to further knowledge creation. In his introduction to Atlantic Monthly’s September 1998 roundtable discussion on intellectual ownership, Mann recounts Immanuel Kant’s plight in 18th-century Germany, where corrupt copying of any and all types of written works was the norm. Mann points to Kant’s The Critique of Judgement (1790), where he explains that “every artistic work ... consists of a physical object and a piece of its creator’s spirit. People can buy the object but not the spirit, for soul cannot be purchased. Thus readers can freely copy books, but only in ways that respect the writer’s integrity.” A balance of these two camps—one of restricted copying and the other of freely copying while retaining the creator’s integrity—remains at the base of the intellectual property laws under which institutions now operate.
Speaking to this same issue at the World Intellectual Property Organization (WIPO) Idris (1999) summarizes the goals of the organization:
Idris’ report of WIPO philosophy does well to protect the rights of creators, but what about their livelihood? In his “Legal Implications of Intellectual Property and the World Wide Web,” Zobel (1997) describes
individuals and groups which maintain that developers of online documents should not pay tribute to current legal practices. Their efforts are directed toward expanding the usage of online resources and contributing to the free exchange of information in a developing, online, world-wide community. (p. 339)
Zobel also points out that some “consider all information privately owned and capable of generating income ... [and that] the legal system should fully protect that work from unauthorized, uncompensated usage” (p. 339). Universities must decide in and among themselves where their positions are in relation to these longstanding and opposing camps. It is the copyright officer’s responsibility to provide the means to facilitate informed decisions.
Although there is a common and legally frightening misconception that permission to reproduce materials in paper-based publications automatically includes permission to reproduce those same materials in electronically based instructional documents, all of the 10 respondents in this benchmarking study have taken the legality of full copyright compliance quite seriously in their respective institutions. The nature and level of the institutions’ copyright clearance activities reflect not only the priority copyright retains in distance education, but also the degree of organizational differentiation and specialization at each institution and the volume of courses produced.
The Copyright Office at Athabasca University has been concerned with clearance and oversight of compliance since the inception of the institution three decades ago. As student registrations continue to grow exponentially and as the revolution in information technologies becomes even more pervasive in distance education delivery systems, so too will the complexity of the copyright issues to be addressed.
As reported by some of the institutions in this study, systematic expansion of the functions of granting permission for faculty and institution-owned intellectual property, orientation and training on copyright, and advice and contributions to institutional policies on intellectual property will become even more necessary in the near future. On the one hand, it may be interesting to revisit the findings discussed in this article in two or three years time. On the other hand, future research may also include a comparative study of legislation affecting educational uses of copyrighted materials, equitable involvement with copyright collectives and rights holders, a further breakdown of workload and time allocation, more in-depth questions concerning strategies for keeping copyright officers up to date, and exploration of different categories of clearances for print and electronic materials.
Mann, C.C. (1998). Life, liberty and ... the pursuit of copyright? Atlantic Monthly, September 1998 [Online]. Available: http://www.theatlantic.com/unbound/forum/copyright/intro.htm
Idris, K. (1999). Message [Online]. Available: http://www.wipo.int/eng/dg_indris.htm
WIPO Web pages. Available: http://www.wipo.int/
Zobel, S.M. (1997). Legal implications of intellectual property and the World Wide Web. In N.H. Kahn (Ed.), Web-based instruction (pp. 337-340). Englewood Cliffs, NJ: Educational Technology Publications.
Lori-Ann Claerhout is the Copyright Officer at Athabasca University. Her e-mail address is loriannc@athabascau.ca.
Peter S. Cookson is the Associate Vice-President, Research and Institutional Studies at Athabasca University. His e-mail address is peterc@athabascau.ca.