In one of our class discussions we were tasked to engage in a discussion regarding the faculty's interest in promoting a teacher exception to the work made for hire doctrine. In this analysis, we examined how the exception may also benefit the interests of the institution.
“Faculty should be free to disseminate their own creations, and to take their created works with them should they leave the University”. (Blanchard, #, pg. 66). This is a controversial topic in the for-profit sector; however, recognizing the teacher exception is at the heart of the “relationship between universities and professors” (AAUP, nd).
The teacher exception is a recognized tradition, and faculty’s interest in promoting a teacher exception to the work-for-hire doctrine is important so that faculty receive the recognition and compensation they are entitled for the scholarly research and their time that went into the creation. Additionally, encouraging scholarly research promotes “disseminating knowledge for the public good” – which can also attract esteemed Professors to a University and the University receives recognition as well. “Arguments can be made for and against institution and faculty” regarding teacher created materials. For example, in addition to all the benefits of the teacher exceptions, in contrast, work-for-hire “acknowledges that employers often invest substantial resources to support the creative work of their employees (Strauss, 2011, pg. 10). Understandably, they would not want that investment to be handed over to a competing University, which leads me to concerns of the institution.
Universities have a vested interest in courses created by employees – especially if the course was created using “substantial institutional resources” (Blanchard, 2010, pg. 66). In this instance, an employer may elect to retain rights of the piece, with some rights granted to the faculty. Primary concerns for the University are that the teacher may sell the course to a competitor, or other third-party distance education institution, which could hurt the institution.
“This is being done to avoid faculty “capitalizing on institutionally funded projects by selling courses to upstart providers of distance and online education” (Blanchard, 2010, pg. 62). Institutions can avoid this by entering into an agreement with the faculty member that clearly outlines the ownership and permissions allowed for use and “conflict of interest policy whereby professors maintain ownership of course materials but no longer may distribute them to outside entities without permission” (Blanchard, 2010, pg. 66). I signed a non-disclosure agreement when I started working at my for-profit firm, which prohibits me from working for a competitor for at least six months following my resignation, and I know that all the works I create are owned by my employer. Non-disclosures can be hard to enforce; however, it would seem most faculty want to share their works, especially research findings.
Faculty may have misgivings about creating course materials that could potentially be taken over by a University and assigned to a different teacher. While tradition holds that institutions honor “traditional works of scholarship”, the teacher exception is not law. Therefore, it is a good idea for teachers to utilize “collective bargaining agreements” and be sure they are very aware of the copyright policies of their institution to avoid potential legal claims. Institutions can do their part by implementing clear policies and, in some instances, agreeing to sign over rights to the faculty member.
Blanchard, J. (2009) The Teacher Exception Under the Work for Hire Doctrine: Safeguard of Academic Freedom or Vehicle for Academic Free Enterprise? Innovative Higher Education, 35(1), 61-69.