Technology focuses spotlight on legal, ethical issues

Distance learning may represent a bright future for education, but the road to the shining City on the Hill leads through a mist of legal and policy issues.

Central to any university is the work of its faculty. While technology makes it easier than ever to teach to far-flung audiences, this new potential can run up against the longstanding principle that Harvard faculty members should concentrate their teaching efforts on Harvard students. How that principle should be understood and applied in the digital age has recently been a question of focused attention across the University, and is expected soon to result in a revised Corporation statement on the subject.

Other issues brought to the fore by the new technology include

how the Harvard name should – or shouldn’t – be used in cyberspace, as well as the matter of intellectual property: who owns course materials when they are produced in digital form with help from the University.

“The question unanswered by the intellectual property policy is what it is that faculty can do with what they own,” said Associate Provost Dennis Thompson, the Alfred North Whitehead Professor of Political Philosophy. “Generally, faculty members own their talents but we are not permitted to teach for other educational organizations without permission.”

This latter question is the subject of a set of “Stipulations” first adopted by the Corporation in 1948, and revised several times since. A new statement on this subject, as well as other aspects of the outside activities of faculty members, has been developed and widely reviewed within the Faculties during the past year. It will soon come before the Corporation for review and expected approval.

Though teaching outside the University is allowed in some cases, full time Harvard faculty are expected to devote their full time teaching efforts to Harvard students, Thompson said. That doesn’t change just because a faculty member teaches at another institution via videotape or over the Internet rather than in person. The new policy identifies a variety of factors to be considered in determining whether a faculty member’s outside activity constitutes “teaching.”

“Just because you’re not there physically, just because you’re not interacting with students in real time, doesn’t mean you’re not teaching,” Thompson said. “We want to make sure that Harvard students are getting the teaching attention of our faculty they deserve – not just in the traditional classrooms but also in the new virtual classrooms of cyberspace.

“The fundamental core idea under the old Stipulations is the same now as it was then,” Thompson said. “The primary commitment is to the students here.”

The digital age has lumped ideas, course material, books, theses and other things previously available only in print into the category of “content.” It has also raised the question: Who owns the content.

Three years ago, such questions prompted a new look at the University’s Statement on Patents and Copyrights to ensure that it fairly treats electronic material. The policy guiding the distinction between what is owned by the faculty member who produces it and what is owned by the University was revised, but the basic principle didn’t change, Thompson said. (The Patent and Copyrights Policy can be found online at www.techtransfer.harvard.edu/PatentPolicy.html)

If the University makes a sizeable and specific contribution to the production of an item, whether a patentable invention or a scholarly work, it also has a right to share in the proceeds from the sale of that item, Thompson said.

An example is the distinction between a professor who conducts research at the library to write a book and the professor who obtains University support to hire researchers and secure other special resources for a multi-media project.

In the former case, the professor using a library is using a community resource that requires no special investment by the University dedicated specifically to the professor’s work. So that work remains the property of that faculty member. In the second case, however, the professor has obtained substantial special resources dedicated to his or her research. In that case, the University could choose to own the copyright in the multi-media project.

“There will be major projects that combine print media and electronic media that will require substantial resources,” Thompson said.

For copyright and trademark issues, the new medium may create a new context, but it addresses old problems.

In legal settlements earlier this spring, the courts upheld Harvard’s right to its trademark name, striking down the attempted purchase and sale of those names as part of Internet addresses by Michael Rhys through his web site harvardyardsale.com. Similarly, Harvard’s copyright was upheld in a second case where a health web site reproduced – under another name and headline – an article “High Protein Diets: Where’s the Beef?” that appeared in the Harvard Health Letter in 1997.

For Internet-related projects as well as non-Internet-based projects, faculty members need to be careful how they use the Harvard name. It’s okay to denote their connection to the University as long as they don’t indicate or imply that Harvard is supporting something it’s not. (The Harvard name use policy can be found online at www.provost.harvard.edu/useofname/)

“Whether something is published in print or published electronically, policies preclude the inaccurate use of the University’s name to indicate ownership or sponsorship by the University,” said Deputy General Counsel Robert Donin.

That’s not to say all the legal issues concerning instructional technology and distance learning are old ones.

Thompson said an important looming issue is the extent to which individual faculty members – as well as the University – should own stakes in ventures with the outside partners that may be needed to produce costly multimedia projects. The prospect of outside partners also raises questions of how partnerships should be governed and what happens to the proceeds of such a venture.