November/December 2001 - Whose
Words - Who Owns Student Posts in an Online Course?
E. Varvel Jr.
Intellectual Property, Online Education, Online Posting, Student
Rights; Student Ownership
As online education continues to grow, a new question begins to appear from
faculty and students alike. Who owns the words that students enter into an
online course discussion forum? The policies on student ownership are as
varied as the forms that student work can take, from thesis documents, to
assistantship work, to course work. In all forms there seems to be a lingering
question of intellectual property ownership. Therefore, the goal of this
article is to shed some light on the ownership of student posts within an
online course without going into depth on the various issues of student ownership
in other forms and media. For a more exhaustive treatment of student ownership
issues, however, a bibliography is presented of readings into various issues.
Finally, this paper is only for informational purposes in order to educate
readers to various concepts and does not constitute legal advice. For a thorough
determination of ownership, a lawyer should be consulted.
Unlike ownership issues with regards to faculty works, which are often
complex and littered with legal rumblings, ownership of student work is
actually a relatively clear determination. Unlike faculty, students are
not employees. In fact, it is the students who are paying the institution
to instill them with knowledge rather than the institution paying the students
to generate knowledge. Granted, some areas such as thesis research and
patentable products can be grounded in layers of legal webs, but such is
not the case in terms of the ownership of student discourse or paper-type
assignments in a standard online or even a face-to-face course.
So what is the basic story in terms of student discourse and paper-type
assignments? Well, in general, the copyright to a work including all of
the rights in §106 of Title 17 of the U.S. Code is initially owned
by the creator of the work. According to §201, "INITIAL OWNERSHIP. Copyright
in a work protected under this title vests initially in the author or authors
of the work. The authors of a joint work are co-owner of copyright in the
work." Thus, if a student writes/creates a work, initially, the ownership
resides with the student. This includes everything from a written paper,
to answers on a test, to posts in an online forum.
The question may arise, though, that students rarely if ever put a copyright
notice on their posts or any other assignment for that matter. Well, since
1988, this copyright notice has been optional. Thus, anything placed within
a tangible medium is copyrighted without the author/creator doing anything
beyond the production of the work. Yes, you would need to register the
copyright in order to defend it in court and prove ownership, but the copyright
itself still exists. Therefore, just because you do not see a copyright
notice on a students work, the work is still copyrighted by the student.
Another common thought is that if the student gives the instructor a work
or posts a work publicly, then the work belongs to the instructor or the
public. Well, this is true in some cases, but owning a work does not mean
owning the copyright to a work. As Title 17 declares, "§ 202.
Ownership of copyright as distinct from ownership of material object -
Ownership of a copyright, or of any of the exclusive rights under a copyright,
is distinct from ownership of any material object in which the work is
embodied." In other words, just because you have a piece of paper
does not mean that you have the copyright or even a license to use the
work without the signed written permission of the copyright owner or some
other means of copyright transfer.
So how can an instructor make use of a student's work in an online course?
Everything stated so far was under the assumption that no other actions
had taken place other than the actual creation/publication of the work,
but there are many contextual factors that can affect copyright ownership.
Sometimes, these factors can apply to all student work, but other times,
they will be affected by the nature of the work. Therefore, let's begin
by dividing student online posts into 3 categories: e-mail or private forum
posts, public asynchronous forum or listserv posts, and synchronous sessions
that are logged or transcribed, in order to look at ownership issues that
are unique to each form. We will then return to actions that can affect
all 3 categories.
E-mail and private forum posts -
Because of the private nature of such posts, it is unlikely that any form of
implied transfer of ownership has occurred. Likewise, it can be deduced that
most of the time, the sender of an email or private post assumes that the
email will only be read by the intended individual. In the absence of the
consent of the sender, even in such cases of forwarding the information to
a related party, an instructor would technically require the sender's permission
prior to its use. Even in such cases where students are required to sign
or agree to a policy whereby their public posts and listserv emails can be
shared, such a policy would in no way affect the rights on their private
posts and emails. Finally, although posting or reproducing an email is itself
a violation, posting facts obtained from an email is not a violation, as
the facts themselves are not copyrightable and their use would probably be
within fair use anyway.
Public posts -
The key word here is public. Being public does not mean that it is public domain
or not copyrighted, but it does lend to it the possibility of implied consent,
especially if there exists a program or class policy stating such explicitly.
In other words, if you have a public forum that students are taking place
in, and explain up front that the posts may be reused, then you can usually
make use of the posts. The terms of the use, though, would have to coincide
with those in the statement. That is, if you say the posts may be used for
research purposes, then you cannot then go and use them for publication without
the student's permission. Also, as this would be a non-exclusive right, such
transfers can be oral and do not require signed written permission.
Synchronous sessions -
Here, the same principles would apply as the public posts. The point to make,
though, is that if the session is not logged or saved in some way, then it
is not even semi-permanently fixed in a tangible medium and thus was never
copyrighted per se. It is actually a little more complex when you consider
performance rights, but from an educational standpoint, for educational uses,
you could easily paraphrase someone under fair use or other rule. Everything
changes when the session becomes logged or saved in some manner, in which
case, it would be the same as a public post unless the session was private
such as in an instant messenger. In the later cases, it would be as a private
What other methods exist in which an instructor and/or student can make
use of another student's work? The first manner would be fair use. Without
going into a long drawn out discussion of fair use, when using something
for non-profit educational purposes, you will often be within fair use
when you take only a small portion of the work, with proper credit given,
without affecting the market of the original work, and without defaming
the originator. For more on fair use I suggest reading some of the references
included with this article. In non-profit educational uses for face-to-face
education, there are also a number of exemptions that allow the display
and performance of works, but not the duplication and distribution of the
work such as in a student collage. There are also a variety of ways in
which ownership can be transferred and shared among individuals. Some schools
might argue that their student handbook grants them a license to student
works. This may be true in some cases such as patentable products produced
as part of a research team, but is not often enforceable beyond fair use
with works such as student papers for a course (non-thesis type) or student
emails and forum posts.
All this being said, you are always best off getting the student's permission
before reproducing student works. Granted small portions may be used within
fair use, but whenever larger portions are desired or required, some form
of permission should be obtained. The manner of that permission will differ
based on the manner in which the student work was created. In other words,
the rules will differ whether the work is within a public versus a private
forum and the rules set out for the forums prior to students using them.
Hopefully the information provided in this short essay will provide the
reader with a beginning point from which to understand the ownership and
usage of student works in an online course. For additional and more in
depth information, please refer to the list of references. It is not a
complete list of all the references out there, but should serve as a good
starting point. For the references, a short description of the contents
There is not a lot of directly related case law, but here are a couple
of examples. Both are available from Lexis-Nexis Academic Universe.
- S.R. Seshadri v. Masoud Kasraian, et.al., 130 F.3d 798 (1997)
as related in Mealey Publications, Inc., Mealey's Litigation Reports:
Intellectual Property, No. 6, 1997. Available Online: http://cyber.law.harvard.edu/metaschool/fisher/joint/links/articles/mealey.html -
Pertains to graduate student's and mentor's joint ownership of research
- Leroy Logan v. Bennington College Corporation, 519 U.S. 822
(1996); 117 S. Ct. 79; 136 L.Ed. 2d 37 - Discusses legality of faculty
handbook. While not directly related to student ownership, can give insight
into legality of student handbooks that generally lack certain requirements
as outlined herein.
Ivan Hoffman has a collection of articles, several of which address this
- Ivan Hoffman, "C" Rights in "E" Mail, 2001, Available
Online: http://www.ivanhoffman.com/rights.html -
Discusses ownership of email.
- Ivan Hoffman, Copyright Transfers, 2001, Available Online: http://www.ivanhoffman.com/transfers.html -
As the title describes, this article discusses the process of copyright
- Ivan Hoffman, The Rights to Student Work, 2000, Available Online: http://www.ivanhoffman.com/student.html -
Discusses various ownership issues such as fair use and online policies
with regards to student works and copyright ownership.
I wanted to include at least one general reference. Nolo.com and others
have a lot of useful resources.
A few sites that have some additional useful information:
- Brad Templeton, 10 Big Myths about copyright explained, Available Online: http://www.templetons.com/brad/copymyths.html -
A highly referenced list of 11 common copyright myths involving ownership.
Email ownership is within one of the myths.
- Newcastle University Computing Services, E-mail and copyright, 2000,
Available Online: http://www.ncl.ac.uk/ucs/email/copyright.html -
Includes a good discussion on implied license and moral rights with regards
to listserv posts.
- Sandip H. Patel, Graduate Students' Ownership and Attribution Rights
in Intellectual Property, 71 Indiana Law Journal, 481, 1996, Available
Online: http://cyber.law.harvard.edu/metaschool/fisher/joint/links/articles/patel.html -
discusses graduate student ownership of works.
The remainder of the links refer to various other topics that may include
student online work ownership, but also include many other faculty and
student ownership issues.
- G. Kenneth Smith, Faculty and Graduate Student Generated Inventions:
Is University Ownership a Legal Certainty?, Virginia Journal of Law and
Technology, 4, 1997, Available Online: http://vjolt.student.virginia.edu/graphics/vol1/vol1_art4.html
- Consortium for Educational Technology for University Systems, Ownership
of New Works at the University: Unbundling of Rights and the Pursuit
of Higher Learning, 1997. Available Online from: http://www.cetus.org
- K.J. Nordheden & M.H. Hoeflich, Undergraduate Research & Intellectual
Property Rights, Kansas Journal of Law & Public Policy, 6,1997
- Bill L. Williamson, (Ab) Using Students: the Ethics of Faculty Use
of a Student's Work Product, Arizona State Law Journal, 26, 1994
- Rochelle Cooper Dreyfuss, Collaborative Research: Conflicts on Authorship,
Ownership, and Accountability, 53, 2000
- United States v. Dubilier Condenser Corporation, 49 F.2d 306
And finally, the following represent a short list of online student work
policies from a variety of institutions. You will notice that some things
stay the same and some things vary, and some may even lack enforceability.
- Office of Research Services - Ryerson, Ownership of Student Work in
Research Projects. http://www.ryerson.ca/ORS/policies/ownership.html
- North Dakota State University Policy Manual, Section 342: Ownership
of Work Products of Teaching Assistants, http://www.nodak.edu/policy/342.htm
- University of Minnesota, Intellectual Property Policy, http://www1.umn.edu/usenate/policies/intelproperty.html
- University of Pittsburg Policy (oddly enough, this policy is dated
11-02-02 and it is currently 11-17-01. It isn't a typo though because
the URL matches the document, and then it says that its effective date
is June 29, 1990), http://www.pitt.edu/HOME/PP/policies/11/11-02-02.html
- McMaster University (Canada), Ownership of Student Work, http://www.mcmaster.ca/mufa/handbook/ownstwrk.htm
- Penn State University, Use of Student Work, http://www.worldcampus.psu.edu/facdev101/course/authless6/legiss4.html
- University of Tasmania (Australia), Intellectual Property Policy, http://www.utas.edu.au/universitycouncil/legislation/policies/polip.htm
- Harvard University Technology Licensing Office, Ownership of Software
Created at Harvard, http://www.techtransfer.harvard.edu/News99_Owner.html
- And finally, the University of Illinois Policy - Policy on Patents
and Copyrights, http://www.vpaa.uillinois.edu/policies/patents.htm