Copyright Considerations for Faculty:
Authored Multimedia Instructional Materials

DISCUSSION D R A F T

February 7, 1996

The following Discussion Draft on Copyright Considerations for Faculty Authored Multimedia Course Materials has been adopted by the University of California Committee on Intercampus Information Technology and Networking for Academic Purposes (CINITAP) as a framework for discussion of copyright issues. The UC Academic Planning Council is now circulating it among Academic Senate committees for discussion as a preliminary to consideration of options for revising University policies on copyright ownership or developing supplemental guidelines to aid in their interpretation. Comment from faculty and others is welcome and may be forwarded by e-mail to Martha.Winnacker@ucop.edu in the Office of the President:

Copyright 1996 by The Regents of the University of California. Permission to reproduce and distribute for educational and discussion purposes is granted.



Contents:

Introduction
Mulitmedia Courseware
University Concerns
Current Policy
Copyrights and Patents: Assumptions Underlying Existing Policies and Traditions
The Law
Future Policy Directions


Introduction:

University communities have begun to explore the potential of the communications and technology revolution for transforming teaching, research and public service. But they have reached little understanding of whether, or how, universities will need to alter their policies and practices to take full advantage of new technological opportunities.

This paper addresses a policy area that is virtually certain to figure centrally in adoption of technological innovations: the University's approach to intellectual property rights. More specifically, within this large policy realm, the paper examines questions of copyright ownership for faculty-authored multimedia courseware in the context of (1) university and faculty interests and values, (2) existing University of California policy, and (3) federal copyright law. In so doing, it will complement the far more developed national discussion of intellectual property issues arising from "fair use" copying and redistribution of copyrighted materials in libraries and classrooms.

Mulitmedia Courseware:

Multimedia courseware invites consideration because of its potential to enhance traditional teaching and learning activities, to allow redistribution of efforts within the teaching and learning process, and to extend participation in University-based learning far beyond current boundaries. For purposes of this discussion, multimedia courseware is defined as interactive teaching aids created and deployed with electronic tools. They may incorporate text, graphic, video, and audio elements and may be mounted for remote access on a file server or pressed onto a CD-ROM for stand-alone distribution. Examples of such materials are electronic "textbooks," hypertext modules, simulation software, and databases containing numbers, images, or text.

Faculty are experimenting with development of multimedia course materials in settings that include individual desktops, campus computer centers staffed by programmers, and partnerships with commercial vendors and national agencies and foundations such as the National Science Foundation and Annenberg/CPB. As they deploy their products, evidence is accumulating that these materials may be used to transform the way some kinds of learning take place. Among its capabilities, multimedia courseware may Over the next decade some whole University of California courses could be captured in multimedia formats capable of being distributed nationally and even world-wide. Taking advantage of the intellectual wealth of a research university, they could enhance and set new standards in many curriculum areas while reaching a much broader constituency than ever before. This paper cannot address the desirability of such an eventuality, which should be the subject of a discussion involving all members of the University community. However, development of this potential could augment both the teaching and service components of the University's mission if it were carefully managed to reduce the risk it poses. In order to implement such an opportunity, in whatever form is determined to be appropriate, the University must address intellectual property questions that arise from the ways these new materials are produced and may be used. Among the new facts challenging traditional policies:

In contrast to print, multimedia materials are costly to produce but inexpensive to copy and distribute.

With current technologies, their creation is likely to require teams that include faculty, technical staff, and rights managers as well as expensive facilities. Authorship is unlikely to appear as an individual act. Concerns surrounding multimedia courseware were prefigured in the public debate over UCLA's agreement with financier Michael Milken allowing Milken to videotape his appearances as a guest lecturer in a UCLA class. Milken intended to distribute copies of the tapes commercially through his own company in exchange for license payments to UCLA. Controversy surrounding the incident centered on allowing a private vendor to profit from the commercialization of a University of California course, who has the right to use the University's name, the implications for the University of providing a public platform for a non-University figure, and the potential of revenue seeking to compromise institutional integrity. Early in 1995, the Work Group on Commercialization of Lecture Materials issued an Interim Report to the President on the applicability of existing University policies to the commercial distribution of recordings of classroom instruction. It found that "there is no need...for a new or amended UC policy" but that there is "need for additional guidance." Charged with responding to a particular case, the Work Group focused narrowly on recordings of regular University of California courses, with ancillary attention to the use of the University's name and logo. This paper continues the Work Group's effort by beginning to consider issues of copyright ownership that will arise as faculty develop multimedia course materials that might be commercially distributed.

University Concerns:

At the heart of the University of California's three-part mission of teaching, research, and service is the free flow of information, the raw material of knowledge. This is embodied in the dual commitment to academic freedom and open publication of research results. These critical elements of academic life are protected by a complex interaction between laws governing intellectual property, University policies, and a code of conduct that unequivocally condemns misappropriation of the information shared by colleagues. Common law precedent developed by courts and statutory exemptions from copyright rules for educational purposes rest on the premise that universities are places where the sharing of knowledge is for the public good rather than for profit.

Recent trends in scholarly publishing and some tendencies in public policy demonstrate the perils as well as the potential of commercialization, which can impede the sharing of information as much as it may advance it. In an environment in which the academic imperative to share meets the competitive for-profit need to guard trade secrets, policies must be carefully crafted to protect the special role of universities in spreading and creating knowledge. As policies are developed, it is essential that all members of the University community understand their shared interest in these matters.

The privatization of some fields of scholarly print communication in the hands of for-profit publishers has disrupted the free flow of information in fields well beyond those in which it has occurred. As for-profit publishers moved into fields in which commercial clients were willing to pay high prices for the results of university-based research--rather than sponsor their own--journal prices increased so dramatically that libraries were forced to cancel subscriptions and reduce their acquisition of books and monographs. In an effort to lessen the impact of the new price structures, libraries have increasingly resorted to interlibrary loan and other forms of resource sharing that reduce the number of purchasers of all scholarly publications. Publishers have responded with aggressive efforts to limit "fair use" copying both by libraries and for classrooms. Commercial publishers seek changes in the law that would enable them to claim revenue from every use of copyrighted material, justifying this effort with the contention that new technologies make this feasible in the digital environment.

It would be reductionist to argue that a single cause lies behind this confrontation of interests, but it is clear that traditional copyright arrangements have been an important enabler. By academic custom protected by common law, university faculty own the copyright to their scholarly works; it is customary for them to give their copyrights to their publishers. In the past, most publishers of scholarly works were university presses and professional societies, and there was little expectation of monetary profit from such publishing. In the competitively for-profit world, such surrender of rights may have dire consequences for the university and for scholars themselves, who may be unable to reuse or distribute their own work in other contexts.

The expansion of the "electronic classroom" in American higher education will offer faculty new publishing opportunities in the form of mulitmedia courseware. Publishing such courseware, with its potential appeal to large markets and its need for sophisticated production values, has the potential to attract large commercial interests to enlist well-known faculty, particularly from such prestigious institutions as the University of California. The impact of prestigious for-profit journals offers warnings of how seriously a pattern of marketing courseware created by university faculty could affect teaching. Universities and faculty could find themselves facing high fees and complicated restrictions for use of their own work, especially in distance learning or time-shifted environments requiring "transmission" and storage of multimedia products. These activities fall outside the copyright law's explicit exemptions for educational use and may infringe copyrights. Material that will be incorporated into multimedia courseware is likely to be that most in demand for teaching and learning, and policies must be in place that ensure that access to it is not restricted. Multimedia courseware has recently become the target of a threat from another quarter as commercial firms, some of which regard universities as "deep pockets" rather than longterm partners, have begun to patent the processes that make multimedia applications run. Universities that do not pay attention to these issues, and individual faculty who do not understand the institutional implications of the agreements they enter, could face serious unintended consequences.

Commercialization of courseware, whether in partnership with private vendors or by University publishing entities, may also generate tensions between the academic imperative to share ideas and the market-driven need to make them proprietary. As a research university, whose faculty create significant elements of the knowledge that defines intellectual fields, the University of California is committed to the principle that intellectual property created under its auspices will be openly disseminated in its courses. Revenue may not compensate for restrictions on access to or use of material that has been exclusively licensed for commercial use. This tension already exists in relationships with some corporate sponsors of research, who have legitimate needs to protect trade secrets. Although these issues are reflected to some extent in the University's regulation of the terms on which its employees enter contracts and accept grants, there is currently little effort to manage copyright systematically in this context. Anecdotal evidence revealed in growing numbers of inquiries addressed to university employees believed to be copyright experts suggests that anxiety about copyright is spreading among faculty and instructional technology staff. Concerns heard recently range from fear of infringing a copyright to uncertainty about how to handle distribution of an article abstract over the Internet while the article is under consideration for publication in a print journal.

Who can market a University of California course? The Work Group on Commercialization affirmed that the University owns the copyright to recordings of classroom lectures, but faculty own the copyright to their own lecture notes and teaching aids. Ambiguity may arise if individuals seek to market multimedia courseware "as taught at the University of California." The University's need to control the use of its name is currently reflected in policy: only Chancellors or their designees may authorize use of individual campus names or unofficial seals, and only The Regents or their designees may authorize use of the University of California's name or unofficial seal. All who are associated with the University benefit from the guarantee that the institution cannot be compromised by the activities or representations of individuals acting on their own. In offering courseware as a product of the University of California, an individual, campus unit, or a publishing entity would implicitly or explicitly invoke the endorsement of the Academic Senate. Indeed, the primacy of the Senate in controlling the curriculum and establishing criteria for academic performance is one of the core principles informing the University's teaching mission. The importance of this guarantee is most evident when it is threatened, as many felt it was in the Milken case. Any effort to market University of California curriculum will need to engage the Academic Senate in devising procedures to prevent market pressures from distorting curricular priorities or standards--despite individual faculty ownership of copyright to course materials they create. If University of California courses can be sold as market commodities, there must be no doubt that the label is applied only where it is valid. A name cannot be copyrighted, but trademark protection is available, and University of California trademarks, service marks, and logos may be registered.

For individual faculty, the ability to control the quality and use of materials they author is critical. In a digital environment, pieces of a work may be easily manipulated or incorporated into other works. Faculty who transfer their copyrights may find that their work (whether a recorded lecture, written text, or visual art) has been incorporated into larger digitized work in ways that affect its meaning or quality. Individual authors need mechanisms for allowing or denying use of their work within the parameters established by copyright law. The University might help strengthen the position from which faculty negotiate with publishers by formally adopting contract standards or by creating its own publishing or brokering entities pledged to protect authorial rights.

Faculty are University employees with obligations that are most precisely specified in relation to instruction, for which the University has, in turn, a contractual obligation to students. Creation of multimedia courseware demands time, technical staff support, and facilities. Commercialization would require additional resources. Decisions about how, according to what criteria, and by whom these should be allocated may be complex and, at times, contentious. A parallel exists with the conduct of research, for which faculty make their own contractual commitments: University standards and procedures for doing so assure that related resources are used properly and that the commitments are appropriate to the academic mission.

The cost of incremental investments for the purpose of creating multimedia courseware may be recovered and augmented by sales of these products. Hence the University may need to control revenue streams generated from these resources and investments. Written contracts specifying how ownership, costs, and revenues are to be allocated for multimedia courseware production could help both faculty and staff understand their own contributions to a work, the costs they incur in creating it, and whom it will benefit. Clear distinctions between such purposes as internal enhancement of the quality of teaching and learning and external marketing will probably be necessary.

As the University moves toward more careful management of copyright, it will be essential that transactions not become burdensome or intrusive for users or creators of copyrighted material. The University will need to assure that criteria for claiming an interest in copyright are rational, clearly stated, and widely understood. Individual faculty will need to be able to distinguish quickly and easily between works over which they can freely exercise full copyright rights and those in which the University may have an interest, and they will need to recognize the legitimacy of interests the University claims. Unnecessary transactions and procedures should be avoided, advice and information should be easily available, and transactions should be kept simple and managed in a manner that encourages a perception of shared benefit. At the same time, the University will need to find ways to assist faculty in negotiating contracts for their own work and in securing all necessary permissions for copyrighted material to be included in multimedia works.

Current Policy:

The existing University policy on copyright ownership was adopted in 1992. "In the spirit of academic tradition" and in keeping with common higher education practice and common law precedent, it grants individual faculty authors ownership of copyrights to their "scholarly and aesthetic" works "resulting from independent academic effort" unless: (1) the work is created as a deliverable for a sponsored project; (2) it is created as a "contracted facilities work"; or (3) it is covered by a specific agreement. Unlike some of its peer institutions, UC does not distinguish copyright to software from other copyrights.

In treating sponsored projects, the policy distinguishes between "technical reports, software, and other works first created in the performance of a sponsored agreement" and "journal articles, lectures, books or other copyrighted works created through independent academic effort and based on the findings of the sponsored project." Ownership of the former resides with the University unless the sponsorship agreement states otherwise, while ownership of the latter rests with the faculty originator(s).

"Contracted facilities works" are "produced by non-University personnel or University personnel acting outside the course and scope of their employment, using designated University facilities pursuant to a written agreement." Chancellors, Laboratory Directors, or Vice Presidents are responsible for "designating" those University facilities for which an advance agreement is required "from non-University personnel and University personnel acting outside the scope of their employment, concerning the disposition of any copyrighted works that are originated with the use of these facilities." The policy is silent on use of University facilities by faculty working within the scope of their employment. It notes that such facilities "normally" include computer centers but not libraries. "Depending on the nature of the facility and the nature and extent of the use," the University may exercise its interest in contracted facilities works by claiming copyright ownership, by accepting a use fee, or by some other arrangement.

The University claims copyright to commissioned work "produced for University purposes" by individuals not employed by the University or those working outside the scope of their University employment. The policy requires that the Chancellors and Vice Presidents identify such works and that they be covered by signed agreements. Without a signed agreement, the law vests copyright in commissioned works--except for nine specific categories--in the originator rather than the commissioner. Finally, the University claims copyright to institutional work created by non-faculty employees in the "course and scope of their employment" or "made with the use of University resources." This provision echoes statutory language giving employers copyright to works created by employees within the scope of their employment; such work is referred to as work made for hire.

Copyrights and Patents: Assumptions Underlying Existing Policies and Traditions:

Differences in the federal law governing copyrights and patents have combined with assumptions about how and for what purpose they are produced to shape distinct institutional policies and practices. Unlike copyright, which grants authors limited, long-term monopolies on certain uses of their own works, patent gives a shorter, absolute monopoly on all uses of the patented device, design, or process--even if another party invents it independently. The UC policy on patents requires faculty to yield to the University ownership of patents to inventions developed in University facilities. If the University licenses the patent for commercial development, the inventor and his or her department receive a share of the revenue. In the following points, contrasts with expectations surrounding patents are used to illuminate the nature of assumptions about copyrightable materials. Implicitly, they also address the suggestion that copyrights might be treated like patents.

In the University setting, copyright is generally assumed to be given primarily for works created by individual faculty members, whether working alone or collectively and to be easily obtained. The creation of such works is treated as distinct from the conduct of the research on which the works are based. Copyright protects works of art, such as paintings, sculptures, and musical compositions, as well as scholarly writings. Under current law, a work is protected by copyright from the moment of writing without either formal application or proof of ownership. Copyright is not refused unless the originality or authorship of the work are contested. The very different process of obtaining a patent and the absolute monopoly it grants contribute to a presumption that its possession is the result of institutional effort. A stringent application process, which can take several years to complete, requires the patent seeker to prove that the process, device, or design is novel, non-obvious, and useful, and that it was first made known to the public no more than one year before the application. Whether an invention results from an individual insight or an orchestrated team effort based on expensive infrastructure, the application for a patent is likely to involve researchers, lawyers, and technical staff.

It should be noted that the same body of research may result in both patentable and copyrightable products and that the underlying research methodologies, data, and ideas are not protected by either copyright or patent. In commercial settings, these may be treated as trade secrets and protected rigorously from unauthorized access. (Legal protection for trade secrets is available only if stringent security measures have been taken.) Academic custom and University policy, as contained in the Academic Personnel Manual, place a high premium on early sharing of research and prescribe disciplinary sanctions up to dismissal for misappropriation of others' work. The automatic grant of copyright provides legal protection for writings and works of art from the moment of creation, while patent law discourages inventors from discussing their work in its early stages for fear of exceeding the allowed one-year period from first disclosure to filing. In contests over patent ownership, U.S. patent law privileges the inventor who documents the earliest "reduction to practice" of an idea, but the more common international practice is to award patent to the first inventor to file an application. Increasing reliance on commercial sponsors for academic research heightens the tension between open scholarly communication and protection of proprietary ideas. Multimedia courseware, which may contain patentable software and copyrighted text, images, and audio components, may bring this tension into the University's teaching mission.

University policy implicitly assumes that few copyrighted works by faculty generate significant revenue. This assumption has been made explicit in copyright cases in which both universities and courts asserted a lack of university interest in claiming faculty copyrights. In one such case, the University of California General Counsel filed an amicus brief to this effect in support of a UCLA professor. There are, however, two factual exceptions to this generalization: (1) textbooks, which are published by trade rather than university presses, may generate significant royalties for authors as well as profits for their publishers; (2) scientific, technical, and medical articles published in for-profit journals generate profits for publishers but not for authors. Universities have not tried to capture either revenue stream, although the cost of for-profit journals has recently become a major issue for libraries. Patents, in contrast, are assumed to have potential commercial value, and the University investment in acquiring the patent is assumed to be a means of obtaining revenues through licensing.

University ownership of faculty copyrights is assumed not to be practical. With annual production of copyrightable works possibly amounting to tens of thousands, the number of transactions generated is staggering and would require a burdensome and costly bureaucracy to manage. Arrangements for co-authored works by faculty from different universities and for faculty members who move from one university to another would likely be cumbersome. Moreover, it is common practice for individual authors of copyrighted works to transfer their copyrights to publishers, who provide the capital for and accept the risk of investing in editing, design, physical production, and distribution. A portion of any profits earned by the work may be distributed directly to the author as royalties, but the amounts in most cases are not sufficient to offset the cost of additional processing. In contrast, patent management appears to lend itself to institutional control. The number of patents is much smaller, and licensing requires complex business negotiations with industrial partners. Typically, the developer pays royalties to the University, which in turn pays a portion to the faculty inventor or inventors.

Copyrightable work is often assumed to be scholarly publication (broadly construed to include original artistic creations), which is a condition for tenure and promotion and leads to substantial professional reward for faculty. Thus the incentive to publish is not direct monetary reward for each item but cumulative professional recognition. Faculty are also encouraged to publish textbooks, which are not required for promotion and which are "normally...considered evidence of teaching activity or public service" rather than "creative work" or "original scholarly research. Similarly, patents are defined as "fortuitous byproducts" of research and are not required as conditions for academic advancement; when they are successfully licensed, inventors are also rewarded with income.

The Law:

As noted above, the law assigns to employers copyright in works created by employees in the scope of their employment. A review of relevant case law indicates that the academic tradition according to which faculty, rather than their university employers, own the copyright to their work rests on a particular definition of scope of employment. Most copyrightable work is created as a result of the faculty member's research activity. Historically courts have agreed with the argument that faculty freedom to determine their own research agendas, timetables, and goals removes research from the "scope of employment" for purposes of defining work made for hire. Teaching, in contrast, is specifically assigned and subject to institutional control through both academic senate and administrative processes. However, it should be noted that no case has involved a dispute over copyright between a university and a faculty member. Instead, the issues have been raised by third-party infringers who asserted that a faculty author did not own copyright to contested work and had no standing to contest its use.

Under the 1909 Copyright Act, at least two courts found that works developed by faculty members as teaching materials were created at the initiative of the individual rather than the direction of the employer. No analogous suits have been filed under the 1976 Copyright Act. According to this reasoning, only the act of teaching, narrowly defined as meeting classes and giving lectures, falls within the scope of employment. University of California copyright policy reflects this legal distinction, as did the Interim Report of the Work Group on Commercialization of Lecture Materials, which concluded that faculty own the copyright to their lecture notes, course syllabi, problem sets, and visual aids, but the University owns the copyright to "recordings" of classroom lectures. This legal doctrine, however, may not be adequate to address issues raised in new modes of teaching and learning.

If called to rule on scope of employment for University faculty, courts may reach varying conclusions in specific cases, but writers in law reviews have noted that growing financial interest in the outcome of such cases injects new elements into judicial deliberations and may reduce the applicability of precedent. As universities become more like businesses, they are less likely to be treated as requiring or deserving special privileges. In patent cases involving significant revenues, recent courts have ruled in favor of institutions when the relevant research was performed in a university facility by a faculty member who was drawing a salary. It is worth noting that neither universities nor faculty took a position on ownership of copyright in faculty works during the legislative activity leading to adoption of the current copyright law.

The law establishes the parameters within which copyright can be claimed, exercised, and transferred, and it is imperative that a deeper understanding of it permeate all areas of the University. However, it would be enormously destructive to rely on litigation to resolve questions of how copyright ownership should be divided between faculty and their institutional partners and sponsors. Lack of serious engagement with copyright issues may increase the likelihood of conflict as individuals and institutions misinterpret or fail to consider their intertwined roles as creators and users of copyrighted materials. Instead, it is essential that a careful exploration of the issues identify what each party has at stake, spread understanding of the implications of copyright policies, enable all members of the University to understand their roles as both users and creators of copyrighted material, and determine what common agreements will best accommodate critical shared interests.

Future Policy Directions:

In 1994, the American Association of Universities (AAU) and the Association of Research Libraries (ARL) sponsored a study on intellectual property management as part of a series addressing the crisis facing research libraries. Concluding "that universities should exercise their ownership interests systematically and coherently," the report offered four scenarios for discussion. The report writers did not agree on the benefits of any one scenario but presented them as a vehicle for launching consideration of a range of possibilities. The scenarios also serve as a useful starting point for discussing possible approaches to copyright policy for multimedia courseware.

1. Enhancing current practices: As at present, initial copyright ownership would rest with faculty authors, while institutions educate their employees about copyright law "and the consequences of copyright assignment or transfer." In dealing with publishers, authors would be encouraged, to retain rights for use (including reproduction) in such university settings as libraries and classes. The success of such an approach in changing current practices would depend entirely on the thoroughness of the educational effort and the ability of major institutions to persuade the majority of their faculty to cooperate.

2. Faculty ownership of copyrights: Faculty authors would retain copyright to all works they create, granting rights to publishers with licenses to do specific things rather than transferring copyright ownership. Since publishers now routinely demand transfer of copyright, it is unlikely that any one institution could adopt such a policy without creating substantial obstacles to publication by its faculty. Such a change would require concerted action by most major universities in order to change the balance between author and publisher. Such a policy could also make faculty copyright owners responsible for processing permissions, although it could be accompanied by the establishment of a university service center that would manage copyrights on behalf of faculty.

Neither of the first two scenarios addresses the ownership issues that arise when staff or students co-author works, whether they contribute content or software. Universities claim staff work created on the job as works for hire, while practices regarding student authorship vary. The following two scenarios rest on the premise that by supporting faculty and providing facilities for research, universities become partners in the creation of scholarly works and can justly claim joint ownership. The changes they propose may reach further than faculty or administrators will find desirable, but the principles they lay out may be more easily applied to the authorship of multimedia works, which are more likely to require both specialized infrastructure and the participation of staff and, often, students than do scholarly writings. Consideration of what it would mean to implement scenarios like the following for multimedia works might contribute to an improved understanding throughout the University community of how different players contribute to the act of authorship.

3. Joint faculty/university ownership of copyrights: Faculty and their universities would jointly own copyright to non-royalty producing works and would jointly determine what rights to transfer to publishers. Universities would waive their share of royalties unless the work generated "substantial revenues" or had been costly to produce (using, e.g., computer time, software development, multimedia production facilities). "As a co-owner, the university has absorbed costs of generating the scholarship or research...[and] has an interest in determining where articles are submitted for publication in order to achieve the goals of cost reduction to the university, increased availability in alternate formats, and the like." This scenario would require changes in employment contracts and would transform the relationship between faculty authors, university employers, and publishers in ways that are difficult to predict.

4. Joint faculty/consortium ownership of copyrights: Faculty would share copyright ownership with a consortium of universities, and all members of the consortium would have rights to use the works for traditional educational purposes. Authors would retain the right to conclude exclusive distribution licenses for five years, but any other transfer of copyright rights would require agreement by all co-owners.

The above scenarios all seek to find ways to control the alienation of rights that affect universities as users of scholarly works. Multimedia courseware, with its new production technologies and teams, innovative means of distribution, intimate relationship to teaching, and mixing of user and creator roles, raises questions that are more complex than these scenarios suggest. Embedded within the scenarios are less developed ideas about how universities and faculty might join to deploy the variously assigned copyrights to increase the reach and influence of the works faculty create. Perhaps exploration of these ideas will lead universities to become publishers on a much more systematic basis than they are now, either through existing university presses or through a variety of new mechanisms, including partnerships with the private sector. Within the University of California, the discussion of how best to approach the rights protected by law and custom in the new environment ought to be shaped by an increased understanding of common purpose.