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Digital Diploma Mills (fwd)
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.