Arts & Letters Daily
Copyright & Credits
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Volume 11, No. 2March 2001
IN 1999, THE HARVARD LAW PROFESSOR ARTHUR MILLER SOLD a videotaped series of his lectures to the Concord School of Law, an Internet-based, degree-granting institution that planned to use those lectures as part of its curriculum. When Harvard found out, it accused Miller of teaching elsewhere without its permission. Miller, a renowned copyright scholar, countered that the lectures belonged to him, and that he could sell them as he pleased.
Could he? Or did Harvard own his course? It was not the first time faculty and administrators had sparred over course ownership. Professors were outraged when UCLA Extension, one of the largest continuing-education programs in the country, signed a contract with an off-campus firm, OnlineLearning.net, in 1994. The contract granted the company the exclusive right to distribute on-line versions of UCLA courses. Under pressure from the UCLA faculty senate, the contract was amended in 1999 to affirm professors' rights to the intellectual content of their coursesthough the contract still granted OnlineLearning.net the exclusive right to distribute and market those courses.
The issue of course ownership is a complicated one. And it only seems to get muddier the deeper you dig. To start with, what is a course? Is it the lecture notes that the professor prepares? Is it the syllabus? The ideas and opinions a professor expresses in class? The books and articles and other resources that made the course possible? The act of teaching itself? Fifteen years ago, the metaphysics of lecture courses might have been a topic to hash out over coffee in the faculty lounge. But today such questions are more likely to be asked in courtrooms and board meetings. Their answers now have pressing practical implications for universities, professors, and private interests alike.
The rise of the Internet and the lure of lucrative on-line distance-education programs have suddenly and unexpectedly made courses a hot commodity. Many universities, looking for a cost-effective way to grow without expanding their bricks-and-mortar campuses, see a gold mine in packaging the courses they already have into "content" to be sold and distributed on the Internet. Though some recent studies have argued that university-based on-line learning is unlikely to offer sustainable growth or profit, the issue of course ownership is now out of the bag. And as the latest power struggle in the university system, it's not going away.
The notion that professors might create objects of considerable commercial value for their employers is nothing new. Ever since 1980, when Congress passed the Bayh-Dole Act, universities have been permitted to patent the results of federally funded research on campus, and they've profited handsomely. Copyright, however, hasn't been an issue of great concern, especially to humanities and social science professors. "Faculty in the hard sciences and the engineering departments have traditionally dealt with patents and have some knowledge about patent procedures," says Dan Burk, a professor of law at the University of Minnesota. "But the folks in the humanities and social sciences have never thought about copyright much at all," he notes, "in part because universities have seen copyright as a different case."
Why has copyright been overlooked? No doubt the relative unprofitability of academic books and articles has been a factor. And there's also the difficulty of copyrighting something as intangible as lectures, which prior to the Internet could not easily be sold on a mass scale. But now, like commodities, they can be packaged (or "templated") in a standardized manner. Consider the course template created by eCollege.com, a Colorado-based company that provides the technology and design for thousands of on-line courses offered by hundreds of colleges and universities nationwide. The eCollege template takes the various activities and materials that make up a face-to-face course and organizes them as a collection of virtual components. One component is an archive of course content: syllabus, readings, homework assignments, film clips, audio clips, still photos, charts, and even recordings of lectures. Another component is a feature that permits a professor to administer exams and quizzes and to post announcements on a bulletin board. The template even allows for more ephemeral aspects of the classroom experience: In the threaded discussion loop, for instance, a professor and students can post written (and subsequently archived) comments on a subject.
But even if the Internet makes it possible to transform a course into an object for widespread sale and distribution, courses remain problematic commodities for other reasons. For one thing, professors use lecture courses to express the opinions on which their academic careers are built; not surprisingly, they are eager to keep their lectures under their own control. Robert Meister, a professor of politics at the University of California at Santa Cruz, worries about what will happen when universities license courses to commercial enterprises that may alter the product to match the needs and attitudes of consumers. "The University of California," Meister explains, "can enter into a partnership to 'brand' the UC name for quasi-educational activities that use materials that were originally developed at UC and that UC claims to own, perhaps in an adulterated form. Who has the final say, the university or the author?"
Charles Nash, a professor emeritus of chemistry at UC-Davis, recounts a horror story about another UC-Davis professor who visited the Web site of a commercial note-taking firm and found notes for one of her courses. "She went through the roof," Nash says, because she felt that the notes, which had been posted without her permission, carelessly "misrepresented her point of view and opinions. In her view, they made her out to be anti-Semitic, which is of course not true."
What does the future hold? If course copyright ends up in the hands of professors, will academic superstars like Miller become high-paid freelancers, selling their finest lectures to the highest bidders and forcing their students to sign nondisclosure agreements to protect trade secrets? If copyright falls to the universities, will it generate ranks of untenured part-time professors who are hired to churn out a few lectures and then dismissed, their ideas packaged, branded, and endlessly resold for university profit? Dread of this latter scenario is causing some professors to view the assertion of copyright over their courses as a way of protecting both their commercial interests and their academic freedom in an increasingly market-oriented university. Meister concedes that faculty "give the university some rights when we sign up to teach a course and we have some obligation to teach the course." But that obligation, he argues, entails another: "How do we describe the rights we give the university in a way that is consistent with our academic freedom and our intellectual integrity?"
COPYRIGHT has often been interpreted as the right to own one's creations. But not always. Back in 1557, Queen Mary I issued a decree under which only royal guild members could print and sell copies of a written worka monopoly they were to exercise in order to censor "seditious and heretical books." Later authors like Daniel Defoe protested this monopoly on grounds that it effectively stripped them of their common-law right to their property. A book, Defoe declared in 1710, "is the Author's Property, 'tis the Child of his Inventions, the Brat of his Brain." The protests of Defoe and others bore fruit later that year when Parliament enacted the Statute of Anne, which held that authors could control the copyright to their works for a period of fourteen years.
In the United States, the framers of the Constitution permitted a limited monopoly in intellectual property when they wrote Article 1, Section 8, which enjoins Congress to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Today, authors enjoy a copyright with expansive control over reproduction, distribution, and display from the moment they fix an original work in a tangible medium of expression until seventy years after their death.
But what about something expressed in a non-fixed medium, like a lecture course? Here things get tricky. In the 1969 case Williams v. Weisser, a UCLA faculty member sued a commercial note-taking service for taking notes on his class lectures and selling them to students without his permission. California's Court of Appeals for the Second District ruled that a professor owns the copyright to course materials. But there was a catch: The decision emphasized written course materials, leaving an opening for future debate over the ownership of less tangible course materials.
To complicate the legal picture further, in 1976 Congress revised the 1909 copyright act to include an explicit definition of the so-called work-for-hire provision. This provision addresses the copyright of work prepared by an employee within the scope of his or her employment, or work that an employer has specially ordered or commissioned for use. In such cases, the employer holds the copyright. Are professors workers for hire under this law? It seems possible: Faculty generally have long-term employment relationships with schools that enjoy the right to request certain tasks of them, such as doing research and preparing course materials. And those tasks are typically conducted with the benefit of institutional resources and support.
On the other hand, there is a case to be made for exempting professors from the work-for-hire provision. In a 1988 court opinion, for example, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit found that the "reasons for a presumption against finding academic writings to be work made for hire are as forceful today as they ever were." Noting that colleges and universities do not supervise faculty in the preparation of books or articles, Posner pointed to "the lack of fit between the policy of the work-for-hire doctrine and the conditions of academic production" and said that the court might, "if forced to decide the issue, conclude that the [academic] exception had survived the enactment of the 1976 Act." Although course materials were not mentioned, there is little in the opinion to suggest its reasoning doesn't apply equally well to them.
The recently published Statement on Copyright by the American Association of University Professors (AAUP) echoes Posner's arguments and envisions dire consequences if the academic exception is not recognized. Under the work-for-hire theory, the statement notes, universities would have the power "to decide where [a] work is to be published, to edit and otherwise revise it, to prepare derivative works based thereon...and indeed to censor and forbid dissemination of the work altogether."
OF COURSE, Posner's decision was handed down at a time when the ownership of courses was not a pressing matter. But in recent years, the idea of an on-line-learning explosion has entered the minds of professors and administrators alike. Commercial outfits like UNext.com, Fathom, and Pensare have formed partnerships with major universities and sell their courses to audiences nationwide. In other cases, universities have entered the courseware marketplace on their own. Both New York University and the University of Maryland have recently launched for-profit on-line subsidiaries to market their courses to corporations and individuals. Still other schools, like the Stevens Institute of Technology in Hoboken, New Jersey, are aggressively marketing on-line materials without any for-profit subsidiaries.
In all these cases, courses are delivered over the Internet in various shapes and sizes. A student can go to Fathom and enroll in a ten-week course on the Cabala, offered by the University of Melbourne, or take a self-paced, semester-length course on the history of modern Japan, offered by the University of Washington. A company will be able to license Stevens's entire thirteen-week course on wireless communications technology or only the same course's one-week module on local area networks. Universities have a clear interest in taking advantage of these new opportunitiesif only they can.
IN APRIL 1997, the University of California's Office of the President formed a task force to revisit copyright policyparticularly notions of fair use and ownership. The result was the Universitywide Task Force on Copyright's Report and Recommendations (commonly known as the Tanner Report, after task force chair Michael Tanner), which appeared in two successive drafts.
"The first version of the Tanner Report was absolutely the worst document imaginable," says Edward Condren, professor of English at UCLA. When I first called Condren to discuss the report, he couldn't talk because he was arranging the chapters of a recently completed book on the floor of his study. Condren has been a professor for nearly thirty-five years, and his book, Beyond Phi: The Numerical Universe of the Gawain-Pearl Manuscript, is a study of the intricate numerical formulas that unite the poems contained in the manuscript known as Cotton Nero A.x.Pearl, Purity, Patience, and Sir Gawain and the Green Knight. The UCLA medievalist also happens to be an authority on intellectual property and defamation and has testified in numerous high-profile court casesmost notably as an expert witness for the defense in Falwell v. Flynt, in which evangelist Jerry Falwell unsuccessfully sued porn king Larry Flynt over a vicious parody in Hustler magazine.
Condren condemns the first draft of the Tanner Report for suggesting that "the university owned [courses] outright and that the university would manage the copyright" to course materials. "I have never been interested in this subject simply because there are fiscal overtones," he says. "It's an issue of copyright ownership and academic freedom. If I have written an article that takes an important stand, I want it to be clear that it's my position. I don't want anyone fiddling with it and keeping my name on it as though it were still mine."
Shortly after draft one of the Tanner Report appeared in September 1998, a perturbed Condren contacted the Council of the University of California Faculty Associations (CUCFA). (At the time, he was also aiding the UCLA faculty senate in its battle with UCLA Extension.) Draft one was not official university policy so much as a study of copyright issues. Nonetheless, the council felt compelled to state its objections. If the report went unchallenged for long enough, explains Robert Meister, the current CUCFA president, "it might be considered to have contractual force." CUCFA's then president, Mary Ann Mason, a professor of sociology at Berkeley, invited Condren to a meeting at which Condren was asked to write a reply to draft one. CUCFA then based its official response to the report largely on his contribution.
CUCFA's letter accuses the university of trying to usurp faculty rights with disingenuous argument and hand waving. "Throughout the Tanner Report," it states, the use of "'allocation,' 'assignment,' 'management,' and similar words" implies that the university has the right to distribute or market property that it has not authored. But the Copyright Act of 1976 expressly precludes the involuntary transfer or exercise of copyright; by assuming the right to distribute copyrighted property, the university is in effect assuming the copyright itself.
According to CUCFA, the Tanner report also implied that "substantial investment of university resources [in on-line course materials] confers on the university the right 'to use them again.'" But that, CUCFA counters, is inconsistent with other university practices: "A scholar's research into the dramatic tensions of Shakespeare's plays, for example, would likely be conducted with the substantial resources of a university library. But the ownership of these resources has never been understood, by the university or by others, to give the university the right to claim ownership of the resulting scholarship."
Most puzzling, in Condren's opinion, the report suggests that lectures might be considered performances. "Although the Tanner Report asserts that 'real-time classroom lectures...are performances for purposes of the Copyright Act,' the Act itself does not support this interpretation," CUCFA's response states. "The language about performance was a trial balloon sent up to see what the university could get away with," Condren surmises.
On November 18, 1998, Mason sent CUCFA's response to Carol Tomlinson-Keasey, then the vice provost of academic initiatives at the UC Office of the President and the task force's administrative contact.
The second draft of the Tanner Report appeared in October 1999, and this time the tone was more guarded, the arguments about ownership less presumptuous, and the assertion about lectures being performances had vanished. Meister is pleased with much of the second draft, and Condren is happy to see apparent concessions to CUCFA's argumentthough he's not sure how sincere those concessions are. "To the extent that they acknowledge that faculty have copyright ownership of lectures," he says, "that's fine." But he is quick to note that "the language on allocation, assignment, and management" has been carried over from draft one's discussion of classroom materials. How can the report rely on that language, Condren wonders, and by implication assume that university policy can take precedence over copyright law, while also claiming to endorse the AAUP's statement on copyrightwhich affirms faculty ownership of course materials and cautions universities against using such language?
The Tanner Report's recommendations are now in the hands of a UC-wide standing committee on copyright, whose twelve members are still drafting a policy on the ownership of course materials. The committee chair is Rory Hume, UCLA's executive vice-chancellor, who doesn't say if he was swayed by CUCFA's protests, though it sounds as if the policy will contain language about copyright that reflects some of Condren's and Meister's views. "It's very unlikely that the prime starting point will be the university owning the material. It's more likely that the university will reaffirm the faculty-ownership position," Hume says. He adds, though, that "there are likely to be circumstances in which the university investment in something is so great that it might need to declare ownership, and we would most likely establish a committee of some sort that would approach those instances on a case-by-case basis."
SINCE THE Tanner Report, the key development in the copyright debate has been the passage of a bill in the California legislature protecting professors' control of course materials. Signed by Governor Gray Davis this past September, Assembly Bill 1773 was conceived as a reaction to several Internet-based note-taking services that were selling their wares to University of California undergraduates. The bill prohibits the recording of all or part of a professor's live lecture without the professor's permission. AB 1773 piggybacked onto a part of California's civil code, section 980, that grants common-law copyright to works of authorship not fixed in a tangible medium of expression. (This section was written for Hollywood as a measure to prevent eavesdroppers from filching story pitches.) Reasonably enough, AB 1773 affirmed that 980 covered the voicing of ideas in the lecture hall as well as on the studio lot. By drawing on 980, the bill clearly covered oral as well as written expression.
But even if professors are having some success in pressing their claims, the work-for-hire provision remains a powerful tool that universities can use to claim control over courses and other faculty creations. Of course, not every university might want to claim complete control. For some administrators, there is another way: The notion of "unbundling" is an increasingly attractive solution to quarrels over the ownership of on-line materials.
The advocates of unbundling are pragmatists. They concede that even if a university could successfully argue that it holds the copyright to on-line course materials, the last thing it should do is exercise carte blanche. "The fastest way to derail any conversation about faculty engagement in course materials is to assert that these are works made for hire," warns Who Owns Online Courses and Course Materials?, a report issued by the Pew Learning and Technology Program.
The mantra of unbundlers is that the ownership of copyright is not an all-or-nothing proposition: Neither a professor nor a university needs to own all the rights to copyrighted material. Their touchstone is Ownership of New Works at the University, a report published in 1997 by the Consortium for Educational Technology in University Systems (CETUS). The report recommends using a contract to separate and allocateor unbundlethe various rights belonging to a copyright holder, so as "to optimally support the mutual interests of the university, faculty, staff, and students."
ROBERT UBELL is the director of Web-based distance learning at the Stevens Institute of Technology, and the CETUS report was at his elbow last year when he developed an intellectual-property policy for on-line courses. The foundation of the policy, which the faculty approved in November, is a contract according to which Stevens pays a faculty member a negotiable fee to develop an on-line course and the developer assigns copyright of the course to Stevens. In return, the faculty member retains the right to use all the materials created for the on-line course in a textbook, a consulting practice, or a face-to-face class at Stevens or elsewhere. The faculty member cannot teach the entire course at another institution, either in a classroom or on-line, without Stevens's permission. If Stevens licenses the course, the course developer receives one-third of the revenue. At present, the development of on-line courses does not count toward tenure.
Ubell views the unbundling contract as a happy compromise. It allocates the benefits of ownership to Stevens and the benefits of authorship to faculty, and it squares Stevens's need to recover the costs of developing on-line courses with the faculty's need for academic freedom and career development. I told Ubell that I was skepticalcan a course be distinguished so easily from the course materials that constitute it?and that the contract seems to tilt in Stevens's favor. Isn't the arrangement analogous to saying that a faculty member owns all the rooms in a house, but Stevens reserves the right to rent the house at any time?
"No, it's not that at all. The parallel is more with book publishing," Ubell remarks. "For example, I may own as an author the articles I have published in journals, in that I've granted to the journals only a onetime exclusive right to publish the articles. Then I go to a book publisher and say I want to publish the essays as a collection. The publisher loves the idea but says, 'Look, this collection is our property to market and to do with as we wish. As a bundle they belong to us, separately they belong to you.'" Ubell admits that although unbundling may look easy, "it is complicated." He adds: "It's hard to think of a virtual thing"the on-line course"as a thing."
Others have more serious doubts about the practice. What it signals, says Mark Smith, associate dir-ector of government relations at the AAUP, "is that there's confusion about an institution's role. Is it a university or simply a publisher?" There's also the matter of bargaining positionsalways a delicate issue in contract negotiations. Smith explains that the AAUP "would not be in favor of a generic resort to unbundling contracts instead of copyright laws, but contracts are OK in specific situations as long as they are applied as narrowly as possible. The problem is that if you are dealing with part-time employees who are teaching a class, their bargaining position is virtually nil, and that's not an appropriate situation." How can a contract be negotiated in good faith if the parties to it don't enjoy equal bargaining power?
Even Minnesota's Dan Burk, an unbundling advocate, admits the practice can create problems for part-timers. "This is very much like the situation freelance writers have faced and are facing vis-à-vis large publishers," he says. "One possibility that may appear in academia, as it has with freelancers, is that of collective action," such as a union or an association acting as a bargaining agent. Just as in freelance writing, Burk says, "most 'freelance' teachers will have relatively little bargaining power, but 'big names' may have enormous bargaining powerthe Arthur Millers, Paul Samuelsons, or other 'star' faculty may be able to demand any kind of deal they want."
HERE THE debate over copyright dovetails with larger concerns about the university. Burk says the unlikelihood of individual part-timers wielding any bargaining power in negotiations about on-line courses underscores a larger point, one that he thinks has nothing to do with copyright. "The real debate," he claims, "is about the role of faculty in twenty-first-century educational institutions: Will there be any tenured faculty in the future? Will we all be freelancers? Will only the 'stars' have enough bargaining power to get a good contract?" He adds: "These aren't copyright questions or questions that will be answered by copyright. But when we answer these questions, the ownership and control of faculty materials falls into place."
Corynne McSherry, a second-year law student at Stanford University, agrees with Burk that questions about authorship and intellectual property cannot be distinguished from larger questions about the faculty role in the university. Her forthcoming book, Uncommon Controversies: Property Stories and the Redefinition of Academic Work (Harvard), explores those questions. Her worry is that if faculty treat copyright law as a battleground for the ills of the contemporary university, such as creeping commercialization, they will overlook the fact that copyright is a symptom, not the cause, of their despair. If faculty copyright can be bargained away from professors with relative ease, then clearly the problem has more to do with the power of the professor generally in the university.
McSherry cautions that "when property becomes ground zero, the essential organizing principle for the discussion of academic work, that's when you lose the ability to talk about academic work as part of a different kind of incentive system"by which she means an intellectual marketplace characterized by uninhibited collaborative inquiry and freedom from outside commercial pressures. "In the end," she says, "what you do is replace the hierarchies of the academy with the inequalities of the free market."
Mark Rose, a member of the Tanner committee and a professor of English at the University of California at Santa Barbara, takes a long view of the debates over course ownership. "We are in a moment of tremendous change because of the digital revolution, which is usually compared to the printing revolution. In fact, insofar as intellectual property and copyright are concerned, the printing revolution is the wrong moment to look at." The right moment, Rose thinks, is the eighteenth century, in the decades after the passage of the Statute of Anne in 1710. At that time, "there was a cultural transformation at work, both because the effects of printing technology had spread throughout the culture and because the marketplace had developed fully formed structures. There was a period of legal uncertainty, and copyright issues were talked about in terms of crisis."
Rose believes that as in the past, today's crisis will be slowly sorted out among all the players ("courts, legislature, the trade, the public," he says), which could take years or even decades. If that's true, don't be surprised if faculty like Edward Condren, Robert Meister, and Charles Nash continue to defend their copyright with arguments that echo those made by one of the fiercest minds of the previous crisis. In Areopagitica (1644), John Milton penned an angry attack against the monopolies enjoyed by British booksellers, inspiring Defoe and others in their struggle for authorial copyright. "Truth and understanding are not such wares as to be monopolized and traded in by tickets and statutes and standards," Milton wrote. "We must not think to make a staple commodity of all the knowledge in the land, to mark and license it like our broadcloth and our woolpacks."
John Palattella's essays and reviews have appeared in Lingua Franca, Dissent, Newsday, and other publications.
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