---------- Forwarded message ----------
Date: Wed, 1 Apr 1998 14:23:50 -0500
From: Skip Hills <[EMAIL PROTECTED]>
To: [EMAIL PROTECTED]
Subject: Digital Diploma Mills II
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) 607-7699.
