Say Goodbye to Your Syllabi
It is no doubt that the Covid-19 pandemic has brought a lot of change to the world. The sudden switch to remote learning has changed the landscape of both teaching and learning going forward. While many teachers and educators have adapted quickly to this new reality, remote learning has brought various concerns for many higher education professors. Not only do these professors worry about the stability of their internet connection, among other technological hurdles, but the switch to remote instruction and zoom classes has raised numerous intellectual property (“IP”) concerns. Many professors worry about the implications of remote teaching regarding whether they still own their syllabi and course materials that are now posted and stored online. Are their recorded lectures, now widely accessible and stored on school zoom accounts, subject to potential future use without their permission?
On March 11, when the World Health Organization declared the Covid-19 outbreak a pandemic, many institutions quickly transitioned their entire curriculum online.1 With the transition to remote learning, not only did many institutions require professors to quickly shift their classes completely online, but many also required all zoom classes to be recorded and saved.2 The rationale was to enable all students to view classes, even those who may not have been able to attend live due to Covid-19 related struggles.3 As a result of these new school recording policies, faculty members have expressed concerns about future use of their crafted course content without their permission. Many professors believe that the shift to online teaching may put them at risk for IP theft.4
There are a myriad of IP concerns that are now at the forefront of their minds.5 Professors are concerned about the IP ownership of their class material that is now being recorded, circulated, and stored online. They worry that their content and curriculum will be taken and used in the future without their permission. Many hope that the universities will not attempt to claim ownership of their recorded classes that are now stored on a school zoom account. Will universities want to use these stored materials and lecture recordings to develop future online courses to make up for lost revenue? Professors worry that as a result of the shift to remote teaching, their ideas and creative expressions, which they have worked so hard to create, may now be stolen.6
With regards to the Covid-19 pandemic, the American Association of University Professors together with the American Federation of Teachers warned that “institutions should not take this opportunity to appropriate intellectual property to which they would not otherwise have had access.”7 “Teaching materials moved online because of the one-time emergency created by Covid-19 are not the property of the institution for future use.”8
U.S. copyright law includes a work-for-hire doctrine, which states that works prepared in the scope of employment belong to the employer, not the employee.9 Professors, however, have benefited from a cultural exemption to this statute. Their lectures, syllabi and other nonpatentable work almost always belong to them, rather than the university.10 Does this suggest that the change to an online medium should not raise any concern regarding the IP rights of professors?
For now, professors can breathe a sigh of relief. The current law seems clear that professors own their recorded content and materials, even when taught and shared online. Yet, the worry of IP theft will surely shape how professors structure their lessons for online classes going forward. Specifically, professors may choose not to share certain information and not to engage in certain discussions as freely as they would have had the class been taught in person.
Many experts in intellectual property predict that IP rights relating to online classes, however, can change in the future.11 As the world shifts to an online era, universities may choose to open up more remote classes and increase online enrollment and it is typical for online programs to use materials that belong to the university rather than individual professors12 Going forward therefore, to be safe, professors should review their institution’s IP policy and affirm their rights to ensure that they undoubtedly retain ownership of their work product.
Rick Seltzer, More Universities Plan Remote Classes, Subheading to Pandemic Triggers Chaos, Inside Higher Ed (Mar. 11, 2020, 5:30 PM), https://www.insidehighered.com/news/2020/03/12/coronavirus-news-updates-wed-march-11[https://perma.cc/GVM8-N4XN].↩
Julia Conoscenti & Alexandra Block, Professors concerned of intellectual property theft over Zoom, USC Annenberg Media (Apr. 2, 2020), http://www.uscannenbergmedia.com/2020/04/03/professors-concerned-of-intellectual-property-theft-over-zoom/ [https://perma.cc/63TT-DR44].↩
AFT and AAUP Principles for Higher Education Response to Covid-19, Am. Ass’n of Univ. Professors (Mar. 17, 2020), https://www.aaup.org/news/aft-and-aaup-principles-higher-education-response-covid-19#.X1qalC05TfZ [https://perma.cc/38WH-HGYP].↩
Colleen Flaherty, Copyright ownership concerns abound in the rapid shift to remote instruction, IP Probs. (May 19, 2020) (citing 17 U.S.C. § 101), https://www.insidehighered.com/news/2020/05/19/who-owns-all-course-content-youre-putting-online [https://perma.cc/275M-JP4G].↩