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The Erosion of Faculty Rights

Colleen Lye and James Vernon are co-chairs of the Faculty Association at the University of California at Berkeley. http://chronicle.com/blogs/conversation/2014/05/19/the-erosion-of-faculty-rights/

In the rush to online education, faculty have been signing contracts that abrogate the ownership of their classes, erode their collective interests, and threaten the quality of higher education. As the numbers of companies providing online platforms have proliferated in recent years, so have the number and type of contracts that both universities and faculty have signed with them. No standard (let alone best) practice has yet emerged, and faculty are largely in the dark about what is at stake.

The stakes are huge. Online education is the new monetary frontier where the traditional rights of faculty and the quality of instruction are up for grabs. It is a frontier that threatens to turn all faculty, including tenure-track faculty, into teachers who “work for hire.”

In some ways, our own campus, at the University of California at Berkeley, is typical. In 2013, without any faculty consultation, the administration signed a contract with MIT-Harvard’s edX in a scramble to join the club of private elite universities and private spin-offs that are developing online education platforms and course content targeted at underfunded public-education markets. Within Berkeley itself, there are in-house platforms developed by a newly established, relatively under-the-radar entity called the Berkeley Resource Center for Online Education that operates fully online or hybrid master’s degree programs at the School of Public Health and Haas School of Business, as well as a variety of undergraduate, summer, and extension online courses now being offered for certification and for credit.

Meanwhile, other professional schools at Berkeley, including the schools of information and of law, have gone into business independently with external platform providers such as 2U and Canvas to deliver fully online or hybrid degree programs. As these administration-led online education programs have proliferated, the faculty senate has been hard pressed to keep pace with them. It is unclear whether the vaunted “dual governance structure” of faculty and administration is adequate to reckon with the consequences of these online contracts for faculty rights and curricular oversight, either at Berkeley or beyond.

The University of California system’s existing policy is that all teaching on campus—including the materials instructors create for classes, whether they be lecture notes, multimedia presentations, or web-ready content—is protected by copyright and the creators of the material have exclusive rights to their uses.

Yet in the Wild West of online education, faculty are being offered a variety of terms and contracts when they teach online classes. Some contracts accord course copyright exclusively to the university so that the courses are no longer considered property of their creators but as ‘works for hire.’ Other contracts establish joint ownership by the instructor and the university on the grounds that the university has invested substantial resources in putting the course online. Often faculty are offered no contract at all, and though the University of California course copyright policy states that copyright lies with the instructor, there is no assurance of judicial protection.

Even assuming that a faculty member has the resources to litigate, two recent decisions (Manning v. Board of Trustees of Community College District No. 505 (Parkland College) and Forasté v. Brown University) suggest that general university policies are not preventing courts from deeming courses as “work for hire” created by “employees within the scope of their employment.” Finally, there are contracts that accord copyright to the instructor but license the university to have the course taught by others and to modify it at will.

It seems likely that, because the costs of developing online classes good enough to attract paying customers (whether individuals or other campuses) are considerable, universities will increasingly seek to assert full or joint copyright ownership, and/or aggressive licensing agreements, so as to recoup their financial investment.

What does that mean for faculty? The Berkeley Faculty Association consulted an intellectual-property lawyer to find out. This is what we discovered.

When the university claims full ownership of a course, the university is free to re-offer it, revise it, license its use by others, or to transfer its ownership to a third party. The university would be able to do that without either seeking the approval of the instructor who developed the intellectual content of the course, or paying her any additional compensation. In contrast, the instructor would not be able to use the course materials without a license or permission from the university and could be sued for damages on the grounds of copyright infringement if she did so. The instructor would also be unable to use the course materials to create derivative works based on their content. Demanding that faculty sign over their course copyright is effectively a land-grab of the intellectual property and the academic reputation of the instructor.

In comparison, at first sight, joint ownership of copyright seems like a sensible compromise. It offers the instructor and the university the right to commercially exploit the course so long as they both share equally in the proceeds. Yet the instructor would still effectively lose control of the course and its materials. The university would still be able to offer the course in its original form for as long as it likes or in any number of derivative versions, without consultation or approval by the instructor. Thus the faculty individual would not be able to stop the university from offering a course she considers egregiously outdated or from offering dumbed-down versions of her lectures. As co-owner, however, the university would not be able to enter into an exclusive license agreement with a third party since such an agreement would harm the ability of the other joint owner to use or license the work.

When universities sign contracts with online platform companies, they have university lawyers to look out for their interest. Yet when faculty are recruited by their own universities to participate in these online initiatives, they seldom have access to the legal advice that could inform them of what they may be signing away. This is a problem for faculty who want to teach online courses. But it is also a problem for faculty who will never teach an online course.

At stake here is the erosion of the rights of faculty and their expert responsibility to guarantee the quality of education. When a university or online company claims full or joint ownership of a course because of its technological contribution to it, faculty lose the ability to maintain standards of excellence in their own courses. So does the university lose its ability to assure instructional quality, a standard of excellence that is founded on the reputation of its faculty and can only be partly enforced by course approval committees because these are generally not in a position to judge the expert content of a course. In embracing online education, universities run the risk of reducing their faculty to mere “content providers” whose value is considered secondary to—and less worthy of investment than—the technological platform. The university then is selling reputation detached from content, and the quality cannot be guaranteed.

Ironically, the result of the increased digital delivery of American higher education could well be a more static, less dynamic model of knowledge transmission—particularly when online courses are seen as a source of revenue savings by cash-strapped campuses. In a world where faculty may no longer own the intellectual content of our courses, university teaching is being modeled after textbook publishing, and less and less tied to the cutting-edge research that continually transforms what we know and how we teach our classes.

Last fall Rutgers faculty voted to block new online programs the university contracted with Pearson that would require faculty to license the university to have their courses taught in the future by others. Faculty at the University of Virginia, the University of Michigan, and Duke have also rebelled against Coursera contracts that incentivize their universities to claim ownership of faculty-created content. Faculty bodies at more universities should closely scrutinize the deals their administrations are making and the kinds of instructor agreements they’ll be seeking. Meanwhile, individual faculty who consider teaching online classes should at least make sure that they are not signing contracts injurious to themselves and, by extension, to us all.

Colleen Lye and James Vernon, co-chairs of the Faculty Association at the University of California at Berkeley.

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