On-Line Teaching and Instructors' Intellectual Property Rights (fwd)

[Kathy Chung]

Hello all,

This is a rather lengthy article but might be interesting, esp. for those
of you into on-line teaching, copyright rules, computer technology in
teaching and learning, etc.

Cheers, Kathy.


---------- Forwarded message ----------
Date: Thu, 02 Apr 1998 19:21:40 -0400 (AST)
From: ACCUTE <accute at is.dal.ca>
Reply-To: accute-l at ac.dal.ca
To: accute-l at ac.dal.ca
Subject: On-Line Teaching and Instructors' Intellectual Property Rights

The following article by David Noble was forwarded to ACCUTE by Ian
Lancashire, President of COCH/COSH.  The article describes the rapid
movement towards a corporatized virtual university at UCLA and other
institutions, particularly in extension education, and analyses the threat
this poses to the intellectual property rights and employment conditions
of university and college instructors. ACCUTE members might want to check
to see how their own institutions handle the copyright of materials
developed for instructional purposes, and consult their faculty
associations or unions regarding the development of regulations governing
copyright.

Marjorie Stone
President, ACCUTE
> =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
> This message was forwarded through the Red Rock Eater News Service (RRE).
> Send any replies to the original author, listed in the From: field below.
> You are welcome to send the message along to others but please do not use
> the "redirect" command.  For information on RRE, including instructions
> for (un)subscribing, send an empty message to  rre-help at weber.ucsd.edu
> =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

>
>
>                         DIGITAL DIPLOMA MILLS, PART II
>               The Coming Battle Over Online Instruction
>
> Confidential Agreements Between Universities and Private Companies
> Pose Serious Challenge to Faculty Intellectual Property Rights
>                               (c)  by David F. Noble, March,1998
>
>          Tensions are rapidly mounting today between faculty and
> university administrations over the high tech commercialization of
> higher education.  During the last two decades campus commercialization
> centered upon the research function of the universities, but it has
> now shifted to the core instructional function, the heart and soul of
> academia. In both cases the primary commercial impulse has come from
> non-academic forces, industrial corporations seeking indirect public
> subsidy of their research needs and private vendors of instructional
> hardware, software, and content looking for subsidized product
> development and a potentially lucrative market for their wares. In
> both cases also, there has been a fundamental transformation of the
> nature of academic work and the relationship between higher educational
> institutions and their faculty employees. With the commoditization
> of instruction, this transformation of academia is now reaching the
> breaking point.
>
>         The commercialization of research entailed the conversion of
> the intellectual process of research into discrete products - inventions
> - and the conversion of these inventions into commodities - something
> that could be owned and exchanged on the market - by means of patents
> and exclusive licenses.  With this change, faculty who conducted
> research in the service of their role as educators and scholars, became
> instead producers of commodities for their employer.  Universities could
> become commercial players not only because they were the major site of
> federally-funded scientific and technological research but also because
> amendments to the patent law had given academic contractors ownership of
> all patents resulting from federally-funded research. This potentially
> gave the universities something to trade with industry: licenses to
> those patents.  But before the universities could make any proprietary
> deals with industry they had first to secure the patent rights of their
> research faculty and staff, because patents are issued only to inventors
> not to institutions.  Universities thus established ad hoc arrangements
> with their own professors, giving them a share of revenues in exchange
> for their patent rights. Eventually, they adopted formal intellectual
> property policies similar to those devised many decades before by
> private industry: employees would be required contractually to assign
> their patent rights to the university as a routine condition of
> employment.
>
>       In the process, research, formerly pursued as an end in
> itself or as a contribution to human knowledge, now became a means
> to commercial ends and researchers became implicated, directly or
> indirectly and wittingly or not, in the business of making money
> for their universities.  The commercialization of academic research
> brought universities and industry into close partnership; it made
> some people very rich and no doubt resulted in the development of
> some new technologies. But it also ushered in a brash new regime of
> proprietary control, secrecy, fraud, theft, and commercial motives
> and preoccupations. Some argue that this new commercial ethos has
> irreversibly corrupted the university as a site of reliably independent
> thought and disinterested inquiry, placing in jeopardy a precious and
> irreplaceble public resource.
>
>       Today the universities are moving rapidly to commercialize their
> instructional activities in much the same way. Here the instructional
> process, classroom teaching, is converted into products, such as a CD
> ROMs, Websites, or courseware. These products are then converted into
> marketable commodities by means of copyrights and licenses to distribute
> copyrighted instructional products. Like the commercialization of
> research, the commercialization of instruction entails a fundamental
> change in the relationship between the universities and their faculty
> employees.  Here faculty who develop and teach face-to-face courses
> as their primary responsibility as educators are transformed into mere
> producers of marketable instructional commodities which they may or may
> not themselves "deliver."
>
>        Universities today are going into business for themselves, as the
> producers and distributors of commercial instructional products, or they
> are making deals with private firms for the production and distribution
> of online courses. But before the universities can begin to trade on
> their courses, they must first control the copyright to course material.
> Course copyright is the sine qua non of the digital diploma mill.  In
> copyright law, however, ownership follows authorship. This means that
> course materials are the property of the teaching faculty and staff
> who developed them. Traditionally, universities have acknowledged that
> faculty, as the authors of courses, have owned their course materials
> and hence copyright to them (except in those cases where extraordinary
> university resources were involved in course development, which might
> entail shared ownership). But the universities are now undertaking
> to usurp such traditional faculty rights in order to capitalize on
> the online instruction marketplace, and it is for this reason that the
> rather arcane matter of copyright and intellectual property has become
> the most explosive campus issue of the day. Here the battle line over
> the future of higher education will be drawn. For faculty and their
> organizations it is a struggle not only over proprietary control
> of course materials per se but also over their academic role, their
> autonomy and integrity, their future employment, and the future of
> quality education. In the wake of the online education gold-rush,
> many have begun to wonder, will the content of education be shaped
> by scholars and educators or by media businessmen, by the dictates of
> experienced pedagogy or a quick profit? Will people enroll in higher
> educational institutions only to discover that they might just as well
> have stayed home watching television?
>
>       At present the universities are in a phase of transition,
> experimenting with solutions to their copyright dilemma. Such efforts
> must be watched very closely because what happens now will likely
> determine the future shape of higher education. During the last few
> years several universities have entered into formal agreements with
> private firms which give some indication of where they are headed:
> UCLA and the Home Education Network (THEN), UC Berkeley and America
> On Line (AOL); and the University of Colorado and Real Eduation. These
> documents, heretofore confidential, herald the dawning of a new regime
> of instruction strikingly similar to the commercial regime of academic
> research. The initial loci of these arrangements are the extension
> programs of the universities, the testing grounds for online instruction
> and the beach-heads, so to speak, for the commercialization of higher
> education. In each of these contracts, entered into without faculty
> knowledge much less approval, the university has explicitly assumed
> its own, rather than faculty, authorship/ownership of course materials,
> in violation not only of academic tradition but perhaps also of federal
> copyright law. In claiming authorship/ownership as a precondition of
> making the deal, the universities might also have committed fraud.
> Whether or not the universities have already overstepped legal
> boundaries, it is clear that there is a move afoot here to establish
> surreptitiously a new practice, a new tradition, in which universities
> automatically own all rights to course material developed by faculty.
> Unless faculty act quickly to assert and confirm their rightful claim to
> their course materials, their inaction might retrospectively be seen by
> the courts in the future as a tacit acknowledgement of the abandonment
> of those rights. In the longer run, universities will no doubt undertake
> to routinize this theft by requiring faculty to assign all copyrights on
> course material to the university as a condition of employment as they
> have done with patents.
>
>                                               * * *
>
>        The first case to be examined is the secret agreement between
> UCLA and The Home Education Network (THEN) signed on June 30, 1994 and
> amended February 21, 1996. This agreement entailed the granting by a
> university of exclusive production and distribution rights to electronic
> courses, including copyright, to a private, for-profit corporation,
> without any prior faculty consultation or approval.
>
>        THEN emerged not from the world of education but from the
> fast hustle media world of spins and sound-bites, cable TV and public
> relations.  It was the brainchild of political media consultant
> and television producer Alan Arkatov, who produced and marketed the
> media campaigns of over a dozen U.S. senators, governors, and mayors,
> before serving as Senior Advisor to President Clinton's 1992 campaign
> chairman Mickey Kantor. In 1994 he negotiated a landmark contract with
> the Regents of the University of California to form an unprecendented
> arrangement with UCLA Extension (UNEX), the largest continuing higher
> education program in the country. The agreement gave Arkatov exclusive
> rights to all electronic delivery of UNEX courses and the exclusive use
> of the UCLA name for that purpose, thereby launching THEN as "the most
> comprehensive continuing distance learning program of its kind in the
> United States."
>
>    THEN is now directed by its President and CEO John Kobara, who
> comes out of the cable television industry and the public relations
> and marketing side of academia. A UCLA graduate, Kobara was vice
> president and general manager of Falcon TV, one of the nation's largest
> independent cable operators, and served as president of the Southern
> California Cable Association before returning to UCLA to direct the
> Alumni Association. By the time he joined THEN in 1997, Kobara was
> UCLA's Vice Chancellor of University Relations directing all of the
> university's public relations, marketing, and government and alumni
> relations activities. Combining their media experience, political
> influence, and insider knowledge of UCLA and its myriad community
> connections, Arkatov and Kobara were well placed to make the most
> profitable use of their ambitious arrangement with UCLA. But UCLA
> administrators, meanwhile, had ambitions of their own, not only to
> provide a new revenue stream for UNEX but to establish it, and UCLA,
> as the premier vehicle for distance learning in the University of
> California system, and beyond.
>
>       The extremely broad agreement between THEN (signed by Arkatov)
> and the Regents of the University of California (on behalf of UNEX, a
> part of the Division of Continuing Education of UCLA, signed by Robert
> Lapiner, UCLA Dean of Continuing Studies) granted to THEN the exclusive
> right to produce, for a ten year "production period", and exploit,
> in perpetuity, all electronic versions of UNEX courses: "the sole,
> exclusive and irrevocable right under copyright and otherwise to
> make, produce and copyright by any means or 'Technology,' as such
> term is hereinafter defined, now known or herefter devised during
> the 'Production Period', as such term is hereinafter defined, audio,
> visual, audio/visual. digital and/or other recordings of all UNEX
> classes. . . ." as well as "the sole, exclusive and irrevocable right
> under copyright and otherwise to exhibit, perform, broadcast, transmit,
> publish, reproduce, manufacture, distribute, advertise, sell, rent,
> lease, market, publicize, promote, merchandise, provide technical
> support for, license and otherwise exploit, generally deal in and with
> and turn to account the Recordings by all means and technology and in
> all media and forms of expression and communication now known or later
> developed in all languages throughout the universe (the 'Territory') in
> perpetuity. . . ." THEN also secured the right to use the "University
> of California" and "UCLA" names in connection with the exploitation of
> their rights granted in the Agreement, as well as the right to assign or
> transfer their interests in the agreement to "any entity."
>
>     In consideration of this generous grant of rights, UNEX would
> receive a percentage of THEN's gross receipts (increasing from 6 to
> 12 percent over the course of the term) plus reimbursement of expenses
> incurred in the preparation of courses, including materials and
> wages. UNEX retained the right to designate which courses would and
> would not be converted to electronic form and the right to final
> approval of their content. However, it agreed that "THEN shall have the
> unlimited right to vary, change, alter, modify, add to and/or delete
> from the Recordings, and to rearrange and/or transpose the Recording
> and change the sequence thereof." In 1995 there was apparently some
> difference of opinion between the parties over whether or not the
> 1994 agreement covered online and Internet delivery of courses.  THEN
> insisted that it did and ultimately prevailed upon UCLA to formally
> amend the agreement stipulating explicitly that "UNEX and THEN
> acknowledge that the inclusion of On-Line Rights is on the same economic
> and other terms as pertain to Recordings in the Agreement and that all
> such terms shall be interpreted so as to encompass On-Line Rights."
>
>      If the THEN-UCLA agreement brought the pecuniary preoccupations
> of private commerce into the heart and soul of higher education, it
> also carried with it another characteristic aspect of proprietary
> enterprise: secrecy. Despite, or perhaps because of, the broad terms and
> far-reaching implications of their agreement, THEN officials and UCLA
> administrators formally agreed to keep it secret. In a confidentiality
> clause in the 1994 agreement, it was agreed that "except as required by
> law, UNEX shall hold in confidence and shall not disclose or reveal to
> any person or entity confidential information relating to the nature and
> substance of this Agreement. . ." and that any participating "Instructor
> shall hold in confidence and not disclose or reveal to any person or
> entity confidential information relating to the nature and substance
> of the agreement between UNEX and THEN. . . ." While THEN clearly had
> proprietary motives for such confidentiality, why did UCLA administrators,
> trustees of a public institution trading in publicly-created goods,
> agree to such secrecy? What did the university have to hide? Perhaps
> it was what the agreement had to say about its larger ambitions, and,
> especially, its relations with faculty.
>
>      Kobara's spin on the deal is that this arrangement is a modest one,
> restricted to UNEX and thus without any significance, or any reason for
> concern, beyond it. He insists that THEN has no relationship with UCLA
> but only with UNEX,which he argues is an independent entity. This is not
> the case. While UNEX is self-supporting, it is unambiguously a part of
> UCLA, as the Agreement itself makes clear. It is for this reason that an
> officer of UCLA, Robert Lapiner, signed the agreement, representing the
> Regents.  Moreover, Kobara's modesty is clearly belied by the Agreement,
> which reveals intentions of a much wider scope. According to the
> Agreement, "The parties contemplate that the relationship with THEN may
> extend to other University of California campuses. Because of UNEX's
> unique responsibility to be bound to THEN for the Term hereof, THEN
> agrees that the participation of all other University of California
> campuses as well as other academic units of UCLA in this project will
> be coordinated by UNEX and for the purposes of this Agreement shall be
> considered 'UNEX Classes.' An appropriate share of revenues otherwise
> payable to UNEX for any such courses shall, however, be distributed
> proportionately to the participating University of California campus or
> other academic unit of UCLA." Whether or not they are able to realize
> their grand vision, it is clear that UCLA from the outset intended to
> extend its distance education operations beyond UNEX and, through UNEX -
> the largest continuing education program in the UC system - beyond UCLA
> to other UC campuses. This Fall the UCLA Division of Letters and Science
> launched its Instructional Enhancement Initiative mandating that every
> course must have a website containing at a minimum course outlines and
> assignments and encouraging faculty to put their lectures and other
> materials online as well. Like the THEN-UCLA deal, this action was
> taken without debate or formal faculty approval. THEN and UCLA officials
> maintain that there is no connection between this unprecedented
> initiative and their UNEX activities.  In response to increasingly
> apparent faculty concern, UCLA's Provost of Arts and Letters Brian
> Copenhaver has recently distributed a letter to all faculty insisting,
> perhaps too much, that IEI is "resolutely and only academic" and that
> "there are no plans to use IEI commercially." Reading the Agreement,
> however, one has to wonder.
>
>      At the heart of the THEN-UCLA deal is the crucial matter of
> copyright.  As is typical in any such agreement, the parties must
> attest to the fact that they indeed have the right and authority to
> grant whatever it is they are granting. Thus, UNEX affirmed that "UNEX
> has the full right, power, and authority to enter into and perform
> this Agreement and to grant to and vest in THEN all rights herein set
> forth, free and clear of any and all claims, rights, and obligations
> whatsoever." Under this assumption, UNEX agreed that "As between UNEX,
> THEN, and the instructors of the UNEX Classes (the 'Instructors'),
> THEN shall be the owner of all right, title, and interest, including
> without limitation, the copyright, in and to all Recordings of UNEX
> Classes produced by and for THEN hereunder and, for purposes of Title
> 17 of the United States Code also known as the Copyright Act of 1976,
> as amended (the 'Copyright Act'), THEN shall be deemed the author of
> the Recordings." By what legal right and under what authority could
> UNEX make such a grant, given the fact that the instructors who create
> the courses rather than UCLA or UNEX are the rightful and heretofore
> acknowledged owners of copyright? The instructors, of course, were never
> even party to this agreement. This is the crux of the Agreement and all
> such arrangements.
>
>       In order to be in a position to uphold its side of the bargain,
> UNEX formally agreed that it would undertake to compel its instructors,
> on THEN's behalf, to assign their copyrights to UNEX, thereby enabling
> UNEX to assign them to THEN. This was made fully explicit with the
> inclusion in the Agreement of an "Exhibit A," outlining a compulsory
> "Instructors' Agreement," whereby instructors would be made to surrender
> their rights to UNEX as a condition of employment. The Agreement
> thus stipulates that "UNEX shall use its best efforts to cause each
> Instructor to agree in writing ('Instructor Agreement') for the specific
> stated benefit of THEN, to the provisions set forth on Exhibit 'A'
> attached hereto." Furthermore, the agreement stipulates that any such
> Instructor Agreement had to meet the specifications not only of UNEX
> but also of THEN, which "shall have the right of prior written approval
> of the form and substance of the agreements entered into by UNEX
> and Instructors concerning the production and exploitation of the
> Recordings."
>
>     Exhibit A is a five page document which specifies in detail what
> the Instructor must give up and do for UNEX and THEN in order for UNEX
> to meet its contractual obligations to THEN. Predictably, the Instructor
> must agree to grant to UNEX the same rights granted by UNEX to THEN,
> namely "the sole, exclusive and irrevocable right under copyright and
> otherwise to make, produce and copyright by any means or technology
> now known or hereafter devised Recordings of all UNEX Classes taught
> by Instructor" as well as "the sole, exclusive and irrevocable right
> under copyright and otherwise to exhibit, perform, broadcast, transmit,
> publish, reproduce, manufacture, distribute, advertise, sell, rent,
> lease, market, publicize, promote, merchandise, provide technical
> support for, license and otherwise exploit, generally deal in and with
> and turn to account the Recordings by all means and technology and in
> all media and forms of expression and communication now known or later
> developed in all languages throughout the Territory in perpetuity."
> The Instructor must acknowledge and agree that "THEN shall be deemed
> the author of the Recordings" and that the "Instructor has no rights
> of any kind or nature in the Recordings of UNEX Classes taught by the
> Instructor;" and must "forever waive any right to assert any rule, law,
> decree, judicial decision or administrative order of any kind throughout
> the world, which allows Instructor any right in the moral rights (droit
> moral) in the Recordings."
>
>    According to Exhibit A, the "Instructor must not permit the Course
> Materials utilized by the Instructor for UNEX Classes taught during
> the Production Period to be recorded by any Technology, except by
> THEN" unless it is approved by THEN or is restricted to publication
> in print form on paper (e.g. books). The Instructor is also obligated
> to assist UNEX and THEN in securing releases to all copyrighted material
> used in the Instructor's course. And just as UNEX must use its best
> efforts to cause the Instructor to sign the Instructor Agreement, so
> the "Instructor shall use Instructor's best efforts to cause all guest
> lecturers taking part in UNEX Classes taught by such Instructor to
> execute agreements approved by UNEX and THEN that are consistent with
> the balance of the provisions of Exhibit A." Finally, the Instructor
> is required to execute any other documents consistent with the terms
> of the Instructor Agreement, as requested by UNEX or THEN, and if the
> Instructor fails to do so, "the Instructor shall be deemed to have
> appointed UNEX and/or THEN as Instructor's irrevocable attorney-in-fact
> with full power of substitution and delegation and with full and
> complete right and authority . . . to perform such acts and take such
> proceedings in the name of Instructor. . "
>
>     The Instructor Agreement, a formal written contract between employee
> and employer in which employee rights are legally transferred to the
> employer, was seen by the parties in 1994 as the way UNEX would secure
> the power and authority required to comply with its Agreement with THEN,
> at the expense of the Instructors.  Today both parties contend that
> such Instructor Agreements are not necessary. According to the terms of
> a revised agreement, they argue, which has not yet been finalized, the
> actual ownership of electronic courses would reside solely with UNEX
> while THEN would merely have exclusive rights of distribution. And UNEX
> now maintains that its ownership rights are automatic and would not
> require any formal contract with their employees. As David Menninger,
> UCLA's Associate Dean of Continuing Education and UCLA Extension,
> explained to me in a letter in December, 1997, "since the focus of the
> Extension/THEN relationship has shifted to Extension online courses, for
> which the Regents of the University of California retain ownership, no
> such instructor's agreement has ever been used, nor is any further need
> anticipated."
>
>     It is not clear upon what legal basis Menninger asserts his claim
> that the Regents of the University of California retain ownership,
> given the traditional legal rights of the Instructors to these courses.
> According to Kathy Whenmouth, technology transfer specialist in the
> University of California's President's Office, the University does
> not yet have any policy on the copyright of online course materials.
> Clearly, the matter is far from settled. What exactly are the rights of
> instructors and the Regents?  Now that the UNEX/THEN Agreement has seen
> thelight of day, it will no doubt become a focus of controversy. Is it
> legal? Will it withstand a legal challenge? Whatever the ultimate legal
> status of the Agreement,which would have to be determined in court,
> this episode sheds much light upon the methods, intentions, and visions
> of those involved in the commoditization and commercialization of
> university instruction.
>
>       The second agreement, between America On Line (AOL) and UC
> Berkeley (The Regents of the University of California) points in much
> the same direction. Signed on July 26, 1995, this agreement, which also
> contains a confidentiality clause, centers upon Berkeley's extension
> program, the Center for Media and Independent Learning. Here the
> arrangement from the outset entails only the licensing of course
> distribution rights without any transfer of copyright from the
> university to the company. According to the agreement, the University
> aims to offer "electronic courses in a broad spectrum of disciplines
> (Arts and Humanities, Business and Management, Computer Science,
> Hazardous Materials Management, Natural Sciences, Social Sciences), for
> credit or for professional development." Accordingly, the "University
> grants AOL a non-exclusive, revocable, worldwide license to market,
> license, distribute, and promote" these courses. In doing so, the
> "University represents and warrants to AOL" that such offerings
> "will not infringe on or violate any copyright, patent or any other
> proprietary right of any third party. . . " Once again, as was the
> case with the UCLA- THEN agreement, the University is representing to
> AOL that it alone owns the course materials and that no third parties,
> including the faculty who develop courses, have any rights to them.
> In order to secure faculty compliance with this claim, the University
> has drawn up a generic course development "letter of agreement" for
> instructors to execute. In this document, which instructors are required
> to sign, the University informs instructors that "The Regents of the
> University of California will own the copyright to all materials you
> develop, in print or other media, for use in this UC Extension course
> . . .  and we retain the right to continue offering the course should
> you resign as instructor." By means of this contract the University
> obtains, and the instructors abandon, ownership of all course materials.
> Instructors are paid a modest "honorarium" for developing the course and
> abandoning their rights, payable half on acceptance of the materials and
> half on actual delivery of the course.  Whereas AOL receives ten percent
> of all royalty revenues, the instructors receive none.
>
>     The final example is possibly the most far-reaching, involving
> the Denver-based company Real Education, Inc. (Real Ed) and the entire
> University of Colorado.  Real Education was founded in 1996 by CEO Rob
> Helmick, an attorney and former general counsel for various universities
> who specialized in education law and the "merger and acquisition of
> educational institutions worldwide." In 1996 Helmick's law firm, Helmick
> and Associates International, acquired Real Information Systems, one of
> the leading worldwide web production companies in the U.S., and created
> Real Education, Inc., "so that universities could easily outsource
> instruction."  Real Education has become a major player in the
> outsourcing of university online instruction and currently has contracts
> with some twenty universities and colleges throughout the United States,
> including the University of Colorado, Northern Illinois University,
> Rogers University, and the Colorado Community Colleges. The company
> specializes in providing universities with all of the hardware,
> software, internet links and technical support they need for online
> course delivery, including assistance with course development. It is now
> collaborating with Microsoft and Simon and Schuster to create a standard
> for the industry. For its part, the University of Colorado has been in
> the forefront of online education and recently won the Eddy Award of the
> National Science Foundation as the "Number One Online University in the
> World."
>
>        After some preliminary collaboration, Real Ed and the University
> of Colorado entered into a formal agreement on May 27, 1997. The
> arrangement engages Real Ed to provide the technical means for online
> course development and delivery but the University retains all copyright
> to course material. According to the agreement, the "University, on
> behalf of its four campuses, wishes to develop its online capability
> utilizing Real Ed's Einstein Network Version 2.5 (or the latest version
> thereof) to create University credit and non-credit courses for delivery
> in the United States and abroad." As part of its obligations, Real
> Ed agrees to "oversee the adaptation of existing distance-learning
> courses and collaborate with the University's faculty and staff in the
> development of new courses" and to "provide instructional design support
> to University faculty to assist in the transfer of lectures to the
> online format." However, according to the contract, "it is understood
> and agreed that the relationship of University and Real Ed, with respect
> to all course development, is that of author and editor, final approval
> and ownership rights over University-developed material will vest in the
> University. . .  ."  Once again, in making a deal with a private firm,
> the University is explicitly identifying itself as the "author" of all
> course materials having full "ownership rights."
>
>     Having made clear its proprietary claims vis a vis Real Ed, the
> University has also made an effort to establish the contractual basis
> for such claims vis a vis its faculty. The University has drawn up
> an "Agreement for Development of Courses Between the Regents of the
> University of Colorado and Faculty Course Developer" to be signed by
> all faculty developing online courses. According to this agreement,
> "Faculty acknowledges that the 'on-line course is deemed as a 'work
> made for hire' within the meaning of the U.S. Copyright Act of 1976
> and The Board of Regents of the University of Colorado shall own
> exclusively and forever all rights thereto including derivative works."
> In addition, "Faculty acknowledges and agrees that the 'on-line' course
> itself may not be used in faculty consulting, in delivering lectures
> or presentations to another academic institution, and may not be
> duplicated or distributed to other individuals, academic institutions
> or corporations without a written agreement and approval of the
> University."  In return for developing a typical three-credit course
> and assigning copyright on all course materials to the University,
> the faculty member receives one thousand dollars plus royalties of ten
> percent of revenues up to $125,000 and fifteen percent thereafter. (Real
> Ed receives five thousand dollars for each course developed plus one
> hundred dollars per student.) At present, faculty involvement in online
> course development is voluntary. However, according to the agreement
> with Real Ed, the University has the power to designate which faculty
> will develop such courses. According to Maureen Schlenker of the
> University of Colorado at Denver who oversees "UC Online," departments
> might require faculty to participate. No doubt untenured and part-time
> instructors, those with the least job security and lowest pay, will most
> likely be pressed into service. Marvin D. Loflin, dean of the college
> of arts and sciences on the Denver campus, says he is considering
> plans to hire non-professorial "teaching associates" to teach on-line
> courses.  "I'm prepared to make over the whole infrastructure of higher
> education," he recently proclaimed to the Chronicle of Higher Education
> (March 27, 1998, p. A30).
>
>         These agreements herald a new regime in higher education, one
> which is taking hold of the nation's campuses at an accelerating rate:
> the commoditization and commercialization of instruction.  Extension
> programs are the cutting edge for this new commercial ethos not only
> because of their obvious involvement in distance learning but also
> because they are typically staffed by the most vulnerable instructors,
> people who have little job security and would thus be most ready to
> comply with university demands. But as the arrangement between the
> University of Colorado and Real Ed makes especially clear, the new
> regime of online education extends far beyond university extension
> programs and the most vulnerable. Indeed, it is now becoming
> increasingly apparent that the real market for online courses will
> be the on-campus population, as the experience of the University of
> Colorado aleady indicates. And as UCLA's Instructional Enhancement
> Initiative makes plain, faculty at all levels will ultimately be drawn
> into the new regime, through encouragement or coercion. The implications
> of these agreements therefore must be considered seriously by anyone who
> is using or plans to use electronic means to enhance or deliver their
> courses. Who owns the material you have placed on the Website or e-mail?
> Without a clear and definitive assertion of copyright claims by faculty,
> the universities will usurp such rights by default.
>
>      This is a matter of some urgency and it is especially pressing for
> those faculty who work in a non-union workplace. Unionized faculty have
> at least an organization and collective bargaining rights through which
> they might fight for their rightful claims. But non-unionized faculty
> must invent other means. One strategy might be for faculty to file for
> injunctions against their universities to prevent them from entering
> into or complying with agreements in which they make claim to copyright
> on course materials that legally belong to faculty. These agreements
> might well be illegal, perhaps involving fraud, and hence invalid.
> Faculty might also investigate whether or not their university is
> involved in the delivery of any courses without having first obtained a
> signed copyright agreement with the instructor.  Once again, this might
> well involve an illegal infringement of copyright. But by whatever
> means, collective bargaining, litigation, or direct action, faculty must
> act, and act now, to preserve their rights.
>
>        University control over copyright is the sine qua non of the
> Digital Diploma Mills. Without it the universities and their corporate
> partners cannot proceed. As the CEO of Simon and Schuster, Jonathan
> Newcomb, has stated, commercial online education presupposes "advances
> in digital technology coupled with the protection of copyright
> in cyberspace." (Emphasis added).  Only by resisting and opposing
> university control over copyright will faculty be able to preserve their
> legal rights, their autonomy, their jobs, and, above all, the quality
> and integrity of higher education.  The fate of higher education is in
> their hands.
>
>
> Historian David F. Noble teaches at York University in Toronto. He
> is currently visiting professor at Harvey Mudd College in Claremont,
> California and can be reached there at (909) 6o7-7699.
>
>


--
Ian Lancashire
Professor of English, New College
University of Toronto
Voice: (416) 978-8279; FAX: (416) 978-0054
E-mail: ian at chass.utoronto.ca
URL: http://www.chass.utoronto.ca:8080/~ian/index.html