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Committee Report on Draft Policy on Ownership of
Course Materials
April 22, 2002
Background and Purpose
The University of California Standing Committee on Copyright (http://www.ucop.edu/copyright)
has been working since its inception in May 2000 on consideration of policies
related to the ownership of rights in instructional materials and presentations
and the appropriate use of the works covered by those rights. In Spring
2001, the Committee forwarded to UC's Provost and Senior Vice President
for Academic Affairs discussion drafts of three proposed policies in this
area, one of which was a draft Policy on Ownership and Use of Course Materials.
These draft policies were forwarded by the Provost to Chancellors, and
by the Chair of Academic Council to Divisional Chairs and chairs of Council
Committees for comment in May, 2001. In Fall 2001, the Committee met again
to review the numerous comments from campuses and faculty organizations
and draft revisions to the proposed policies.
The purpose of this document is to provide background on the Committee's
deliberations, including its consideration of comments received, regarding
the drafts of the proposed Policy of Spring 2001 and Winter 2002.
Introduction
The Preamble to the University's 1992 Policy on Copyright Ownership ("1992
Policy") states in part:
The creation of copyrighted works is one of the ways the University
fulfills its mission of contributing to the body of knowledge for
the public good. The University encourages the creation of original
works of authorship and the free expression and exchange of ideas.
This Policy is intended to embody the spirit of academic tradition,
which provides copyright ownership to faculty for their scholarly
and aesthetic copyrighted works, and is otherwise consistent with
the United States Copyright Law, which provides the University ownership
of its employment-related works.
The Committee believes that the principles embodied in the 1992 Policy
remain valid; however, the 1992 Policy was primarily focused on original
and independently prepared works of research and scholarship. It does
not provide explicit guidance regarding works created for the purpose
of teaching, including course syllabi, instructional materials, and recordings
of instructional presentations. Although there may be some overlap, instructional
works are typically different from "scholarly/aesthetic works"
in a variety of ways, including that the latter result from "independent
academic effort,"(1) whereas the instructional
work is part of a curriculum that has been approved by the faculty as
a whole. The University also has an interest in instructional materials,
as its reputation and credibility are inextricably bound to the quality
of the courses it offers.
Recent technological developments have increased the ways in which instructional
materials may be presented as well as attracting increased commercial
interest in these works, and, at the same time, have blurred somewhat
the distinction between scholarly/aesthetic works and instructional materials.
This, in turn, has raised issues about the intellectual property ownership
and usage of such materials. In considering these issues, the Committee
agreed that the University has a compelling interest in encouraging the
use of new media and technologies for instruction and in ensuring that
the faculty feel both empowered and protected in these areas. At the same
time, the Committee viewed the University as having legitimate interests
in the way that instructional materials and presentations are used, particularly
for commercial purposes. Existing policies, such as those on conflict
of interest and commitment and use of the University's name, seal, and
property provide some protection for those interests, but may be insufficient
to ensure that commercialization occurs with appropriate consultation
and distribution of benefits.
As background for its work, the Committee reviewed relevant policies
from twenty comparable U.S. higher education institutions. We found that
most policies take the position that, in most circumstances, ownership
of the rights to scholarly work belongs to the creator, and that instructional
materials are most often explicitly included in the scope of these policies.
These policies generally assert some form of institutional ownership a)
as a provision of a specific contract or agreement; b) as a provision
of an extramural grant or contract; or c) when substantial institutional
resources are used in the creation of the work.
In considering how the principles of the 1992 Policy might be extended
to instructional works and presentations, the Committee's discussion focused
on six areas. These same areas attracted the bulk of campus and faculty
comments to an earlier draft of the Committee's proposed policy that was
circulated in the spring and summer of 2001 for comment. These areas were:
Designated Academic Appointees; Exceptional University Resources; Course
Materials Policy Committees; the course syllabus; use outside the University;
and joint ownership.
Designated Academic Appointees
The 1992 Policy defines Designated Academic Appointees as "those
University employees who have a general obligation to produce scholarly/aesthetic
works,"(2) including appointees in
the Professor, In-Residence, and Professional Research series, and vests
only in these appointees ownership of their scholarly/aesthetic works
when produced by independent academic effort. The Committee recognized
that there are groups of University employees who may have an analogous
obligation to produce instructional materials and presentations but who
do not qualify as Designated Academic Appointees, such as lecturers and
graduate student employees. The Committee observed, however, that any
extension of the current definition would entail issues of academic and
staff personnel policy, and, in some cases, collective bargaining. These
matters are beyond the purview of the Committee; accordingly, the Committee
has made no recommendations in these areas.
Exceptional University Resources
As noted above, most copyright policies of peer institutions make use
of a concept such as "significant institutional resources" or
"extraordinary institutional resources" to denote situations
in which the institution, by virtue of the investment of its resources
in a particular copyrighted work, claims an ownership interest in that
work. The Committee elected to use the term "exceptional" in
this context, believing that it more effectively connoted the situation
that the Committee believed warranted the claim of institutional ownership
interest, i.e., cases in which the resources provided by the University
represent an exception to the resources offered routinely to similarly-situated
designated academic appointees. For example, access to library resources
and services, basic telephone services, and personal computer and network
services are provided to faculty on an equitable and non-discriminatory
basis. The Committee recognized as well that the level of such services
provided to some departments and disciplines differed from that provided
to others for sound academic or administrative reasons, and does not wish
to imply that a particular bundle of services provided on an equitable
basis to all faculty in a particular department would be considered "exceptional"
merely because it differed from the bundle of services provided to another
department.
In its own deliberations and its consideration of the numerous comments
from campuses and faculty committees, the Committee struggled with the
expressed need to provide a more precise definition and/or an enumeration
of examples of "Exceptional University Resources." Ultimately,
the Committee decided that it would be neither possible nor wise to attempt
this, recognizing that flexibility is needed to interpret this concept
in light of the varying circumstances of campuses and departments and
of the constant and accelerating change in technology and its application
to instruction. Indeed, it is largely for this reason that the Committee
introduced the concepts of campus Course Materials Policy Committees and
of review by the Universitywide Committee of the determinations of those
committees, discussed further below. The Committee also addressed this
issue by emphasizing in the draft policy the importance of establishing
agreements between the University and originators in cases where Exceptional
University Resources are used, and in providing for joint ownership by
the University and the originators in the absence of such an agreement.
Course Materials Policy Committees
The Committee recommended the establishment of campus Course Materials
Policy Committees, and an ongoing role for the Standing Committee on Copyright
in reviewing the recommendations of these committees, in order to ensure
that there is a credible mechanism in place to make decisions about the
applicability of "Exceptional University Resources" at the campus
level, and to identify issues that may require additional policymaking
or guidance at the Universitywide level as campuses gain experience in
this area. The Committee debated extensively about the composition, authority,
and reporting relationship of these committees. The initial resolution
of these debates, as set out in the original draft policy of Spring 2001,
was that the committee should be composed only of faculty appointed by
the campus Senate division, but under the authority of the Chancellor
and with administrative power to render final decisions regarding Exceptional
University Resources questions and other matters brought before it. Comments
from campuses and faculty committees raised many questions about this
proposed arrangement. For example, if this were to be an administrative
committee, it would be appropriate to include representation from campus
constituencies other than faculty, and would necessarily be only advisory
to the Chancellor, who has final authority for administrative decisions.
If, on the other hand, it was intended to be a Senate committee, its authority
would be limited to Senate members and its establishment would be subject
to Senate regulations and processes; in addition, it was by no means clear
that the Senate would either welcome this responsibility or accept it
through a process of administrative policymaking. In considering how to
resolve this dilemma, the Committee made reference to the numerous joint
Administration-Senate committees successfully operating on the campuses,
and determined on the basis of these models that the best solution would
be a joint committee advisory to the Chancellor, with a majority of its
members appointed directly by the divisional Senate.
The Course Syllabus
The Committee recognized that both the individual faculty member and
the University have interests in syllabi: the faculty member wants the
ability to use the syllabi in other contexts or for other courses upon
leaving University employment and the University needs the ability to
reuse course syllabi for future instruction. The comments received by
the Committee from the Spring 2001 circulation of the draft policy revealed
that there is a disparity in the ways individuals used the term "syllabus,"
ranging from a topical outline and statement of learning objectives to
a virtual mini-course text. The majority of commentators felt that the
proposed draft, which specified that the University could create "derivative
works" of syllabi, went too far while others thought that it did
not go far enough.
The Committee concluded that the University has a valid interest in being
able to reuse or modify the course description prepared by a faculty member,
and provided in the draft policy that the University has a fully paid-up,
royalty-free, perpetual, and non-exclusive license to use, revise, and
update the course syllabus, as defined in the draft policy, for the purpose
of continuing to teach the course of instruction. The Committee viewed
this provision as a balanced compromise that gives the faculty member
ownership rights in his or her intellectual effort but gives the University
the ability to build upon the instructional material for future teaching
purposes.
Use Outside the University
The increased use of instructional technology has led to an increase
in the amount of interest in the commercial exploitation both of courses
themselves and of course materials. This development is one of the major
reasons for the University's consideration of ownership of course materials.
While some have characterized this issue as one primarily of copyright
ownership, the Committee viewed the issue of potential commercialization
of University courses as extending beyond copyright ownership. The proposed
Policy on Ownership of Course Materials clarifies ownership of course
materials, but does not alter the 1992 Policy or any other policies. Existing
University policies related to conflicts of commitment, conflicts of interest,
use of the University's name and unofficial seal, and use of the University's
property and facilities all affect a faculty member's ability to use instructional
materials outside the context of the University.
Joint Ownership
The Committee's draft policy advocates that an agreement be executed
between the University and the originators of course materials in cases
involving Exceptional University Resources and whenever ownership and/or
the manner of sharing revenues from the commercial use of the work are
in doubt. The Committee also recognized that agreements may not always
be established in these cases, and provided that, in the absence of an
agreement, rights in works involving Exceptional University Resources
would belong jointly to the originator(s) and the University. Many commentators
remarked that the provision for joint ownership did not provide sufficient
guidance, and recommended that the Committee establish default rules for
the allocation of ownership rights and the division of revenues. After
careful deliberation, the Committee determined that it was most appropriate
that in these cases, responsibility should rest with the originators of
the work and University administration in consultation with the custodians
of the relevant University resources. Under the proposed policy, the campus
Copyright Policy Committee would be responsible for reviewing and recommending
resolution of any disputes arising from this process.
The Committee recognized, however, that collaborative development of
courseware is increasing, and that in the absence of formal agreements,
joint ownership will be more common in the future. Frequently, some of
the collaborators in a particular project will be University staff or
student employees. As a result, the University may more often find itself
the joint owner of rights in such projects, even when Exceptional University
Resources are not involved. The Committee advises campuses to be prepared
for this eventuality. In addition, confusion about ownership of copyright
rights in joint works might impede future uses of the work by others;
campuses and the originators of works should therefore be clear about
the ownership of these rights in any publication or distribution of such
works.
1. "Inquiry, investigation, or research
carried out by designated academic appointees to advance knowledge or
the arts where the specific choice, content, course, and direction of
the effort is determined by the designated academic appointee without
direct assignment or supervision by the University. The general obligation
of designated academic appointees to produce scholarly/aesthetic works
is considered independent academic effort." (1992 Policy.)
2. A "scholarly/aesthetic work"
is "a work originated by a designated academic appointee resulting
from independent academic effort." (1992 Policy.)
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