The Goose and the Golden Egg: Intellectual Property and the Computer in Higher Education
James J. McNelis III, April 2001
Now, at the turn of the millennium, extraordinarily powerful computer-based tools and aids to teaching and research are within reach of most faculty—even those working in the humanities. While technology is shifting toward easier use, universal networking, and expanded memory and processing speed, attendant socioeconomic, legal, and policy issues remain problematic. This explosion of new tools and innovative methods creates unprecedented challenges and opportunities, as well as new ways of viewing traditional issues in higher education—and, yes, controversy too. Where issues of individual academic freedom and creativity, research and development, teaching and curricular development, and institutional programs and property rights all collide is the current uncertainty over ownership rights to intellectual property. This uncertainty poses serious obstacles to the development of courseware and deployment of modern information technology in the service of quality education.
The issue of ownership of intellectual property, whether by its author/creator or its institutional sponsor/investor, is polarizing faculties and administrations everywhere. This divisive issue is shaping up to be the central concern in distance education, with its dependence on computer-mediated instruction and courseware, as well as other computerized enhancements for teaching and research. Who owns an instructional software package—the faculty member who wrote it or the university that provided space, equipment, library resources, and support staff to help produce it? The latter can argue, and many universities have made this case, that its payment of salary to faculty entitles it to ownership of such work.
My own employer, the State System of Higher Education (SSHE) in Pennsylvania (the state-owned system, not the privately chartered Penn State University), attempted in the fall of 1999 to assert full ownership of all creative materials, digital or otherwise, generated by the faculty; that is, proposing that "faculty must disclose in writing the intellectual property in which the University may have an interest before it is created." The faculty interpretation of this proposed amendment to its collective bargaining agreement was that this seemed preposterous: to inform the administration at the moment the project was first mentally conceived, and to require us [the faculty] to announce the existence of an idea immediately upon conception so that the administration could dictate the form and content of our own work to us before we started it.1 The university's intention was apparently to establish work-for-hire status for faculty-created products, a point to which I will return later in this essay.
In reaction to these and similar institutional policies nationwide, some faculty members now feel compelled to establish direct or explicit ownership of course materials in all forms to safeguard their current and future vested interests, since it is their intellect and creativity, precious time beyond their teaching obligations—often diverted from family and personal activities—and sometimes a great deal of their own money that go into course materials and courseware development and production. Should the copyright of their courseware belong to them? Solely? Or would this be an attempted alienation of public or institutional property in which the university has invested and should retain legitimate interest? Then again, when have universities ever claimed that their maintenance of libraries entitles them to ownership of research developed therein?
Who owns what? There are many questions to consider. Can the institution publicize and distribute faculty-generated courseware when it wants courses taught elsewhere, by someone else? What about active teaching captured in video? Or the mixed media, form and substance, that now constitutes modern courseware? Can the institution sell copies in the academic marketplace? Can faculty members take their courseware to new institutions when they change jobs, just as they continue to teach in the same field and revise previously taught courses? Can they withdraw the course from the curriculum at the institution they left, or the courseware from its media collection? Or are these products inalienable components of the university's programs?
Where courseware can be purchased, as in the case of publisher software, ownership and usage rights are made clear, more than they usually are when courseware is developed on campus. Course and curricular development are creative acts, continuing processes, more than merely one-time products, so practice in industrial manufacturing does not pertain, although precedents may exist in patents in R&D operations. When development efforts and resources are shared in a partnership between a faculty member and his or her institution, or other collaboration occurs, might one assume that ownership should also be shared proportionately? Sadly, such common sense seems not to be all that common, and sharing rights to such intellectual property often does not easily become standard policy once opposing parties are defending vested interests.
At one extreme, some universities are claiming absolute ownership of all intellectual property in machine-readable form generated by their full-time faculty. These claims sometimes extend even to the instructors' syllabi, lecture notes, and lesson plans when posted on the university's web site and accessed from its servers—despite well-established precedent that a teacher's knowledge and his or her own instructional materials in nonelectronic form that are individually acquired, prepared, and created are individually owned tools of the trade.
Meeting somewhere on middle ground would seem to be in everyone's best interests. A faculty member who must restrict research or teaching projects to the home office is not working at maximum efficiency or cooperatively. And despite modern networking capabilities, collaboration and resource sharing will be discouraged. Independent scholarship is often lone scholarship, at a disadvantage in many ways. The lone scholar lacks technical support, consulting and advisory services, library and media resources, help in identifying external funding, permissions and copyright releases, and secretarial and production assistance.
Moreover, a university that cannot successfully encourage faculty to undertake mutually beneficial creative work faces stagnation, and wastes talent and other resources such as academic computing organization, computing and media production laboratories, and libraries—all of which need certain levels of use and economies of scale to be cost-effective. They must find alternative means such as outsourcing, contracted consulting, and acquisition to rejuvenate its programs if faculty are merely delivery agents. In that case, the rule of the free market will prevail: creative faculty will gravitate to those universities that do not confiscate their work—or, if no suitable university position is at hand, they may abandon academe altogether and those technically able in particular might flock to the private sector, where distance education is a becoming a booming business. Such faculty migration could change the face of higher education in the United States, where the alternatives would not be only public or private, but technical and nontechnical, and for profit and nonprofit where nonprofitable institutions simply may perish. Academe as known for centuries might simply self-destruct.
The universally acknowledged means to motivate people—faculty most assuredly are those who make things
happen (from facere, to make)—is with the carrot, not the stick. Why the reversal in policy in this new technological environment, and change in attitude from when teaching was interpersonal and less computer-mediated? The answer in a word: Money! Distance education is developing a gold-rush mentality, where private companies supposedly rake in millions, and where cash-strapped universities are eager to stake their claim—and, more positively, to retain leadership in higher education lest it become entirely co-opted by the corporate-owned training industry.
Intellectual property-rights issues lay at the heart of the growing concern over course and curricular development, content selection and design, courseware production, and electronic delivery—though a detailed discussion of the legal issues goes beyond what is possible to discuss here. In general, however, the American Association of University Professors (AAUP) has concluded that institutional attempts to claim blanket copyright to works created by faculty—through unilateral declarations of policy, university handbooks, or the wording of hire letters—run afoul of the Copyright Act, which requires an explicit transfer of any exclusive rights, in writing, signed by the author.2 Further, when such claims are based on the premise that a faculty member is an employee who creates a work-for-hire—which would normally be the property of the employer—they disregard the difference between standard works-for-hire, which have a content and design dictated by the employer, and academic works for which faculty experts traditionally determine subject matter, design, methods to be used, and conclusions.
As the AAUP stresses, at the crux of this controversy is "the very essence of academic freedom." Institutional power to determine publication of a work; to edit, revise, or replace it at will; to profit from derivative works; and to censor it is "deeply inconsistent with fundamental principles of academic freedom," and these powers "cannot rest with the institution."3
At the same time, the AAUP recommendations regarding the wide range of different kinds of property and their development in various contexts bring us back to the commonsense approach of resource- and profit-sharing and customized agreements within broader, general policy. The institution may be "joint owner" of some properties, be entitled to royalties based on its investment in the property, or, it may have an implicit royalty-free "license to use" the work. Accordingly, the AAUP recommends that rights of "ownership, control, use, and compensation" should be "negotiated in advance and reduced to a written agreement."4 Can these currently opposing viewpoints be reconciled, so that common cause and collaborative action prevail?
Unlikely though it seemed—as I and my colleagues cleared out our offices in expectation of a strike throughout Pennsylvania's state universities—a happier ending in the SSHE contract talks did occur. Although the credible threat of a strike was necessary to achieve a settlement, the contract ratified in the fall of 1999 is one that guarantees to faculty ownership of their intellectual property and avoids the previous threat to intellectual freedom or to the right to share in the profits that may be generated by faculty creations. Highlights of the agreement on intellectual property issues include:
- Use of instructional resources by other than their creators will be reasonably compensated.
- If the university contributes a certain amount of support, earnings are to be shared; further contractual agreements between the university and individuals can be made to clarify terms ahead of time for specific endeavors.
- Teaching distance education courses is to be compensated by a formula which counts onsite students and offsite students, and the preparation fee for such a course is paid again whenever it is retaught three or more years later and requires updating.
- The faculty member who creates a recorded course will be paid a per-student rate should the course subsequently be used elsewhere in the state system by other instructors, and such a course may be revised only with the written consent of the author.5
Wry jests by senior SSHE faculty could be heard everywhere during the contract dispute, many noting the negligible proceeds from the modest intellectual property most had accumulated in their careers. It is the nature of technical and business-related disciplines to routinely enrich their faculties, but occasionally opportunities arise in the humanities as well. For historians, the revenues generated by widely accepted textbooks for history survey courses, historical novels, consulting on film or TV projects, and so on, can be financially rewarding.6 But to some degree this conflict over intellectual property is a fight by the majority to stand up for the minority of our colleagues who will hit the jackpot. It is impossible to forecast who they will be, and they are not numerous enough to win this battle unassisted.
Nevertheless, providing incentives to faculty will not, and cannot by itself, generate a windfall of polished, marketable courseware products. The amount of work needed to create these is simply not feasible for typical junior faculty, overwhelmed as they are by primary obligations. My own university is extremely eager to encourage the development of distance learning materials, yet is unable to offer any release time for this purpose from our 4/4 teaching load. The dream and the reality collide at the point where the 24-hour clock runs out of time.
Government support for public universities is less than what it should be in many states; private colleges must curtail their rising tuition rates; and administrators everywhere are under grinding pressure to hold personnel costs in check, extract more work from their faculties, and enhance revenues whenever possible. The liberal arts in our universities, without the same opportunities for extramural funding, grants, and sales property rights as in high-profit areas such as biotechnology, information technology, and professional schools, are probably fated forever to work as PBS does, limping along with penurious state support and held together with a bit of duct tape and baling wire.
A medieval institution devoted to the pursuit of learning, the university can adapt to the distributed-asynchronous mode of high-tech teaching methods without losing sight of its learning and education mission. But the HMO model in health care, often touted as an inevitable pattern for a new wave of "streamlining" soon to hit higher education, has now clearly failed to preserve the function of teaching hospitals upon which the discipline—and business—of medicine depend. If the university's mission is simply the pursuit of profit, rather than knowledge, its survival will be imperiled as well. It does not follow that universities in need should appropriate faculty intellectual property royalties where they can. Put another way, the moral of this story is not new: he who wants golden eggs must take care not to kill the goose that lays them.
—James I. McNelis III is assistant professor in the graduate faculty of English at Kutztown University of Pennsylvania. His dissertation: "The Uncollated Manuscripts of The Master of Game," is currently in preparation as a volume in the series Middle English Texts. McNelis has published on Beowulf, Arthurian literature, and the genre of the bestiary. He is editor in chief of Envoi: A Review Journal of Medieval Literature, and in that capacity has sponsored conference sessions on the uses of Java, Unicode, 3-D rendering, and other computerized tools in scholarly research on medieval literature. He is also editor of the Medieval Science Web Page.
1. "Faculty must disclose in writing the intellectual property in which the University may have an interest before it is created" was a proposed addition under Article 42, APSCUF/SSHE Collective Bargaining Agreement. The organization Texts and Academic Authors took vigorous exception to the proposed SSHE policy, excoriating its "extraction of flesh from the hides of its faculty" and "complete lack of understanding of the creative intellectual process." The full text of the press release ("Pennsylvania Confiscating Author Rights, Royalties," Internet, October 13, 1999) may be found at http://taa.winona.msus.edu/TAA/
2. "Technology and Intellectual Property: Who's in Control?" Academe 84:3 (May/June 1998); "Education Bytes: The Problems and Promise of Technology," Academe 85:5 (September/October 1999).
3. Committee A of the AAUP, "Copyright Issues in Colleges and Universities," Academe 84:3 (May/June 1998), 39—43.
4. Committee R of the AAUP, "Distance Learning," Academe vol. 84, no.. 3 (May/June 1998), 30—38.
5. Articles 39 and 42 of the APSCUF/SSHE contract. See "APSCUF/SSHE Collective Bargaining Agreement," effective 1999—2002; full text available at http://www.apscuf.com/99cba.pdf. A summary of the agreement, "Summary, State System of Higher Education Agreement with the Association of Pennsylvania State College and University Faculties" may be found at http://www.sshechan.edu/p_summary.html," November 10, 1999.
6. The novel First Blood, the source for the Rambo film, was written by David Morrell, an English professor, who subsequently was able to retire at age 43 to full-time fiction writing. See also Richard Russo, Straight Man (Vintage, 1998).