MUNFA IB 2006/07:31
TO: All MUNFA Members
FROM: The MUNFA Executive Committee
DATE: May 7, 2007
SUBJECT: Distance Education and Learning Technologies (DELT)
In September 2006, Distance Education and Learning Technologies (DELT) introduced a new contract in agreements between the University and ASMs ("Content Experts") authoring course materials for distance delivery. This contract includes new terms that are important for ASMs to consider if they are asked to develop a distance delivery course. These terms may also place authors of already existing courses at a disadvantage should they be asked, or request, that existing course material be revised. We encourage all ASMs to read carefully the analysis below and to not enter an agreement with DELT without fully considering the risks.
Based on the analysis, we offer two pieces of advice in view of the erosion of rights held by an ASM who develops a course for distance delivery.
- If one holds an old contract, careful consideration should be given to the implications of agreeing to a new contract for revision of that course. Concerns about liability, ownership of intellectual property and one's assumed right to teach the course are all relevant and should be carefully weighed.
- If one is considering a contract to develop a course for distance delivery, careful consideration should be given to whether remuneration is adequate in view of other considerations. The way the contract presently reads, the Content Author has no guarantee that s/he will ever teach the course they developed, no guarantee that s/he will have control over future revisions and development, and should accept that his/her intellectual property will be available to others without consent or full disclosure.
The MUNFA Executive cannot advise what is best for each individual. However, we encourage ASMs to carefully consider all issues and to make decisions that are fully informed. Also, keep in mind that courses offered through DELT produce revenue for the University, in most cases cost students more than the equivalent course on campus, and contribute to the stature of the University in its national and international networks. ASMs should ensure that the benefits they receive are appropriate to their effort and to the value of their intellectual property.
ANALYSIS OF SALIENT ELEMENTS IN THE NEW DELT CONTRACT (2006)
- In contracts initiated in the Fall 2003 and before, the ASM retained sole ownership of all materials s/he produced. Beginning in Winter 2004, DELT offered a copyright buyout of $1481 (on top of the course production fee of $3519) and in return an ASM jointly owned copyright with the University. Under the new arrangement, the course production fee is $5000, copyright is jointly held, but the author consents that DELT is entitled "to use all or part of the course including but not limited to graphics, video, animations and simulations, and modules, in a digital learning object repository." The author concedes control as well as knowledge of where and when their intellectual property is used given that objects in the learning repository may be freely used by colleagues at member institutions in the Canadian Learning Object Exchange (CLOE) and its US counterpart (MERLOT).
- While ASMs may be told that the production fee for distance courses has been increased, this is erroneous. ASMs are now commissioned to produce a discrete piece of work over which they virtually give up ownership and control.
- At the same time, ASMs continue to accept full liability for any copyright infringement contained in their work, except for those items specifically identified to DELT by the author. The contract states: "The content expert [i.e., author] agrees to indemnify the University against any loss occasioned by a breach of the warranty." By signing the agreement, the author warrants that all materials (other than those specifically identified) "are the creation of the content expert and do not violate existing copyright." While it is unlikely an ASM would violate copyrights, their rights and obligations to counter claims is unclear. With a guarantee of indemnification, the University has nothing to lose; the ASM has everything to lose but may not explicitly be included as a party to a legal challenge.
- Under the new agreement, "the Content Author agrees to provide the University with a royalty-free license to offer the course for a fixed period of five years." Under previous agreements, royalties were paid to the author for the use of course materials (although this is often overlooked and ignored by DELT and is no longer paid automatically). The author's rights after five years are unclear given the absence of any statement reverting ownership of the intellectual property to the author. Presumably, royalties would be paid after five years, but these are not specified or guaranteed in the agreement.
- While the contract prohibits the University from selling the course material without the author's consent, the author's share of income from a sale after consent is given is determined by a separate agreement negotiated "following receipt of consent." Earlier contracts clearly provided authors 15% of any revenues from sale. ASMs are encouraged to include a provision for royalties from sale in their initial contract rather than to wait until a sale is imminent since pressure may be exerted in order to conclude such sale.
- Course revisions were previously provided remuneration (often based on negotiation between DELT and the content expert). Under the new agreement, "Remuneration will not be paid for course revisions," although "after a period of five years a course MAY be eligible for complete redevelopment" (emphasis added). There are three issues here:
- In view of point 4 above, it is unclear whether royalties will be paid after the expiry of the royalty-free license, how these royalties would be determined, who takes responsibility for any side agreements, and what happens when agreement cannot be reached.
- Functionally, an ASM who designed a course to correspond to a standard text will not be provided any consideration when a new edition of the text is published, even if this requires substantial revision and rewriting of the course manual (the new agreement uses a period of five years, whereas most textbooks are revised on a 3 – 4 year cycle). Typically, revisions required by a new edition can take as many as 80 to 100 hours of work which undermines an argument that the time needed to revise a distance delivery course is similar to time needed to revise a traditional on-campus course. The new Agreement effectively expects an ASM to either donate his/her time in order to keep the course up-to-date with the text, or to work with a course designed for an edition of a book that is unavailable. DELT's retort is: "Best practices in online development suggests that courses be developed thematically and not tied to one version of a particular text or set of resources due to the workload associated with updating requirements." While this assertion may be fair, it assumes development of a broader range of course materials (perhaps equivalent to the ASM writing a full textbook) than has been the case in past. The current remuneration for course development is inconsistent with the level of work required by the expectation of "best practices."
- If a Content Author refuses to make revisions within six months from a request – revisions that are not remunerated – the new contract gives the University the right to contract with someone else to make those revisions. This presents serious problems given that the Content Author is presumably still the work's author (and joint copyright holder) and it is unclear how a third person becomes involved, what acknowledgement or credit they receive for their changes to the work (e.g., co-authorship?), and whether this third person is paid for work that the Content Author by contract is not eligible for payment. The original author "may withdraw his or her name from any association of the materials" but the University (as joint copyright holder) can continue to use those materials as it sees fit. The author loses rights and control over his/her intellectual property.
- In previous agreements, "the Content Expert has the first right of refusal for the teaching of a course through distance delivery." This is no longer the case; in fact, there is no mention of teaching in the new agreement at all. A Content Expert may develop course materials for a course which s/he never actually teaches. This reinforces a perception that an ASM, in entering into an agreement with DELT, is agreeing to piecemeal work. One needs to carefully consider whether the time devoted to developing materials for a distance delivery course would not be better spent on writing a text book or ancillary text for a course. Either of the latter would conceivably provide greater remuneration for one's time and would be accorded greater value in the promotion and tenure process than traditionally has been given to materials produced for distance delivery courses.
- DELT's response to concern about removing the Content Expert's first right of refusal is that teaching loads are assigned by a Dean or Department Head, something over which they have no control. At face value this may make sense, but the provision of the Content Expert's first right of refusal continues in force for contracts signed before September 2006. Thus, DELT claims to have no control under the new contract, but the ASMs rights continue to be respected under old contracts. This erosion of rights is a source of concern.