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November/December 2001 - Whose Words - Who Owns Student Posts in an Online Course?
By: Virgil E. Varvel Jr.
Keywords: Copyright, 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 forum post.

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 is given.

References

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 paper.
  • 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 topic.

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:

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 (1931)

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.
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