UC Berkeley Faculty Association

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July 7, 2014
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CUCFA Concerns re: Rescission of 1989 Guidelines on University-Industry Relations

On July 6, CUCFA sent the following letter to UC President Janet Napolitano in response to the June 26, 2014 announcement that she has rescinded a policy that barred the university from investing directly in companies that commercialize technology that has emerged through UC research:


President Janet Napolitano
Office of the President
University of California
1111 Franklin Street, 12th Floor
Oakland, CA 94607

Dear President Napolitano,

The Council of UC Faculty Associations (CUCFA) is concerned by both the substance and the process associated with your recent announcement that you have rescinded the 1989 Guidelines on University-Industry Relations.

The policy you rescinded contained restrictions on direct UC investment in companies commercializing technology based on UC research. These provisions in Sec. 13 of the 1989 Guidelines are thoughtful and prudent. Sec. 13 includes the following statement: “If the University were to be an equity participant in the work of one or more faculty members, it could be seen as favoring those faculty members, and could be in conflict with the University’s role to support scholarship and allocate institutional resources in an even-handed manner.” In our view, this rationale for the restriction in the guideline remains valid. We support the full statement of the Sec. 13 justification and the guideline itself, which are quoted at the end of this letter. They should not be rescinded without a compelling justification.

In your announcement, you did not mention consultation with the Academic Senate, and we have not been able to find evidence that such consultation took place. Since your stated policy change affects faculty research, faculty involvement in relations with industry, and the investment of University funds, it clearly falls within the established scope of topics appropriate for consultation with the Senate.

Thus we request that you provide CUCFA and the larger University community with an account of your reasons for rescinding the Guidelines and with a description of the process that led to your decision. We also strongly encourage you to engage with the Senate in consultation on the desirability of reinstating the 1989 Guidelines or on the structure of a replacement policy that will also contain appropriate safeguards such as those in Sec. 13 of the 1989 Guidelines.

We will welcome an opportunity for further discussion of these issues with you.

Sincerely,
Joe Kiskis
Vice President for External Relations
on behalf of the Board of the Council of UC Faculty Associations

enclosure: Excerpt from Sec. 13 of the 1989 Guidelines on University-Industry Relations

cc: Academic Senate Chair William Jacob, Provost Dorr, CIO Bachher, Senior Vice President and Chief Compliance and Audit Officer Sheryl Vacca, and Vice President Steven Beckwith.


From Sec. 13 of the 1989 Guidelines on University-Industry Relations:

“Primarily because of its need to be even handed in its support of faculty members and in its openness to competing commercial enterprises, the University has not arranged for investment in firms whose products derive from University research, when the principal purpose is to promote faculty inventions. If the University were to be an equity participant in the work of one or more faculty members, it could be seen as favoring those faculty members, and could be in conflict with the University’s role to support scholarship and allocate institutional resources in an even-handed manner. Moreover, this kind of relationship with certain companies could preclude or inhibit research sponsorship by other competing companies.

“Guideline: In general, it is not appropriate for the University to invest directly in enterprises when such investment is tied to the commercial development of new ideas created or advanced through University research.”

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May 19, 2014
by Admin 2
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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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May 14, 2014
by Admin 2
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Ideal Contractual Provisions in an Instructor Online Agreement to Protect Intellectual Property Rights

When participating in online teaching at their university, instructors are advised to seek contributor agreements that contain the following ideal provisions in order to be assured that they will retain copyright over the courses they have created. These ideal provisions would preserve the status quo that the instructor owns the copyright in all “Course Materials” as that term is defined in the university’s existing policy and allow the third party to use the course materials during the term of the agreement between the University, the third party and the instructor.  The instructor could provide the third party entity with a license for the term of the agreement so that the third party could use the course materials.  The agreement between the instructor and the third party should contain provisions similar to the following:

  • All right, title and interest, including copyright, in Course Materials created by the instructor will remain with the instructor.  Course Materials include, but are not limited to, lectures, lecture notes, and materials, syllabi, study guides, bibliographies, visual aids, images, diagrams, multimedia presentations, web-ready content, and educational software.
  • The instructor hereby grants a non-transferable, royalty free, fully-paid up, worldwide, non-exclusive license during the term of the agreement to the Course Materials, course content, and content improvements for use by the third party provider in connection with the offering of the course.  This license includes the right to use the instructor’s name, voice, image or likeness (whether still, photograph or video) in connection with the Course Materials during the term of the agreement.
  • The license includes without limitation the right to reproduce, modify, adapt, translate, distribute, transmit, publicly display, publicly perform and otherwise disseminate and make available the Course Materials, course content, and content improvements provided however that the third party provider will not modify, adapt or translate the course content without the prior written consent of the instructor.
  • This license has a term of [time] and may be terminated in writing by the instructor with [reasonable time period, perhaps 90 days] notice to the third party.
  • The third party provider agrees that after the term of the agreement has expired, it will have no right or authorization to reproduce, modify, adapt, translate, distribute, transmit, publicly display, publicly perform and otherwise disseminate and make available the Course Materials, course content, and course improvements, nor to use the instructor’s name, voice, image or likeness (whether still, photograph or video).

These suggestions should not be taken in lieu of seeking formal legal advice.

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March 19, 2014
by Admin 2
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The Berkeley Faculty Association supports the UAW’s campaign for better wages and working conditions for graduate students

As UCOP’s own figures show, our graduate students are underpaid in comparison to our peer institutions by as much as $5,000.  Given the high cost of living in the Bay Area, many struggle to live on their current ten-month stipend of  $17,655.  As a letter from 33 of Berkeley’s Department Chairs argued, the lack of an adequate stipend also undermines the competitiveness of even our top-ranked graduate programs.

Graduate student instructors are central to the UC mission to provide top-quality, research-driven, undergraduate education to Californians.  Ensuring that graduate instructor-led classes are kept at a manageable and consistent size ensures not only equitable treatment for graduate students, but a high quality undergraduate learning experience across the University of California.

Given the expiration of the previous contract last November, we urge UCOP to quickly resolve their outstanding differences with UAW and to respect the protected rights of union workers to take collective actions free of undue managerial interference.

The BFA recognizes that graduate students are the lifeblood of the University of California’s mission to deliver excellence in research and teaching. We support the UAW’s campaign for a new deal for our graduate students. What is good for graduate students is also good for faculty and for undergraduates.

 

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March 16, 2014
by Admin 2
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Do you have issues with the new UC Health Insurance Provision?

We have been hearing that many  faculty and employees at campuses across the UC system are unhappy about the new rules, particularly those from campuses without a medical center where there are fewer options and higher out of pocket costs. If you have a story to tell, UC professors Michael Meranze and Chris Newfield who blog at Remaking the University have created a page where you can Share Your UC Care Story.

With more information about how changes impact faculty and staff, we can seek better mechanisms that would permit faculty to negotiate these elements of our compensation.

 

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