Members present:	Acanfora, Berck, Borgman, Butter, Campbell, Cowan, Hume, Kurtz, MacDonald, Matkin, Zelmanowitz
Members absent:	Hecht, Smith, Wienhausen
Guests	Matt Peterson, Senior Legislative Analyst, UC Office of Federal Government Relations
Staff:	Lawrence, Winnacker

1.  Preliminaries
     1.a. Welcome and introductions
     1.b Review of meeting objectives
 
 

Background Material:  Standing Committee on Copyright Roster

 

MEETING OBJECTIVES 1.  Review and comment on proposed revisions to the UC Student Code of Conduct to comply with AB 1773. 2.  Review and comment on the interim report of the Subcommittee to Study Ownership and Acceptable Use of UC Course Content and Materials, and advise on next steps. 3.  Receive a briefing on prospects for federal legislative activity on copyright in the current Congress, and discuss Committee roles in responding to federal legislative initiatives. 4.  Receive an update on planning for copyright education and information.

Borgman noted that she was serving on a study of internet services and DNS, for the NRC Computer Science and Telecommunications Board.

2. Universitywide Copyright Policies
     2.a. Student Code of Conduct provisions related to AB 1773 (Update/Discussion)
 

Background Material: "Proposed language for Student Academic Services …," 2/15/01

Lawrence briefly reviewed the three proposed provisions developed by the UCOP Copyright Working Group for inclusion in the draft revision of Policies on Student Conduct to address compliance with AB 1773, highlighting the specific issues described in the background material.

In discussion, it was generally agreed that the University had a legitimate interest that would justify the retention of the provision in part (b) requiring University permission as well as that of the instructor. Since the focus of these provisions is unauthorized commercial use, they do not create a liability for the University (as might be the case, for example, if the University regulated content of a public online discussion forum), nor do they implicate fair use or other authorized uses of course notes and other recordings for personal use by students and faculty. It was also recommended that the language be amended to ensure that all permissions must be in writing.

Consensus: the committee endorses provision (a) of the proposed language, endorses provision (b) with the requirement for University permission included, and recommends striking provision (c).

ACTION: Lawrence will convey the Committee’s recommendations to UCOP Student Academic Services for incorporation into the draft Policies on Student Conduct.

During discussion, committee members made the following points, which nonetheless did not affect the committee’s recommendations:

• There is no time limitation on the commercial use prohibition. If, for example, a student recorded in writing a particular phrase used in a classroom presentation, and some years later incorporated this into a novel, would this be an unauthorized commercial use? Should it be?

• It is unclear what the mechanism will be, or should be, to obtain University permission when required.

• It is unclear how these policies might apply to some time-honored academic practices, e.g., a faculty member employing a graduate student to take notes on his lectures with the aim of eventually preparing a textbook based on the lecture notes.

• It is important to remember that, regardless of the balance of interests represented in these policy statements (and those on ownership and use of course materials, following), these policies do not address the University’s interest in structuring, ordering and sequencing of content that constitutes "the course" as a whole.

Kurtz began the discussion by noting that an initial draft had been circulated to all Subcommittee members, and that any comments received in time had been included in the draft and comments presently before the committee.  But the Subcommittee had not had an opportunity to comment on the redraft, and no endorsement by the Subcommittee as a whole should be presumed.

Section I addresses the general issue of ownership. The draft policy has substantial overlap with the existing Copyright policy, although the definition of "designated academic appointee" in existing policy is very much oriented toward research, and is not totally adequate for teaching (e.g., Lecturers). Regarding the treatment of exceptional University resources (EUR) in part B, the concept is that the onus is on the University to identify EUR and initiate necessary agreements. The default, in the absence of an agreement, is that the faculty owns the work, but the University has a perpetual limited license, and neither party can make commercial use without the permission of the other. The proposed Copyright Policy Committees (CPC) resolve disputes. CPC findings are deposited with the SCC, to create a body of information and precedent that can inform future policy development.

Section II addresses the concerns of AB 1773. It is intended to cover legitimate non-commercial uses among students enrolled in the class.

Section III is directed at journal publishing issues and is based on provisions found in the policies of other peer institutions. Kurtz understands that at Columbia a similar provision has been used effectively by individual faculty in their negotiations with textbook publishers.

Subsequent discussion focused on five general topics:

1. Designated academic appointee

Zelmanowitz noted that in his understanding, the current definition of "designated academic appointee" includes Lecturers SOE. Berck observed that extending the current definition to other classifications that have teaching roles (e.g., Unit 18 lecturers, GSEs) could implicate collective bargaining. Matkin noted that the work of Continuing Education Specialists is generally considered work for hire, but they have no separate agreement to this effect. It was agreed that the applicability of the proposed policies to instructional personnel not now included in the scope of "designated academic employees" was both important and complex, and the Committee would eventually have to deal with this definition.

2.  Exceptional University Resources

There was general consensus on the use of the term "exceptional" in preference to "extraordinary" or the more traditional "substantial." It is clear that additional guidance will be required to interpret the application of this term, although it may not be possible or desirable to further define it in policy. Among the specific issues remaining to be resolved in application of the term are those related to the University’s network infrastructure as a resource, and the application of the concept in cases of joint authorship.

The traditional paradigm is "one faculty, one text." The future will consist of complex collaborative relationships. In cases of multiple and serial (derivative) authorship involving, e.g., multiple faculty (from the same or multiple institutions) and various combinations of faculty, students, staff and third parties, it will be increasingly important to have policy instruments that can prevent ongoing feuds. Acanfora pointed out that one important benefit of the current patent policy is that it provides consistency – there is no need to record and track thousands of independent and complex business relationships. Another is leverage with third parties.

MacDonald observed that current policy goes to scholarly and esthetic works, while the proposed draft goes to teaching materials; there is a distinction. The focus of the draft is on copyright ownership, but the real issues and problems have been in the realm of allowable use. The draft, by conferring ownership rights on the faculty, gives faculty rights to use this material without consideration of the University’s interests. UC’s interests are better covered by APM 015/025 (conflict of interest and commitment). Berck observed that, with respect to Part I of the draft, it is important clarify rights for UC to use the course syllabus and create derivative works therefrom. In cases involving EUR, this requires further definition. Matkin described the situation at UCI Extension, which is working with UCI faculty to create an online degree program in criminology. In working with faculty to define a workable agreement, the faculty appear agreeable to these provisions: release time and staff support will be provided; when UNEX sells the program, the faculty do not expect income; faculty will work with UNEX on royalty arrangements in the case of marketing to non-matriculated students; it is clear that work for hire is owned by UC. Hume is familiar with three relevant cases at UCLA; in all, financial benefits accrued to the department, not the individual faculty, and all were cases of EUR.

With regard to the faculty’s interest, MacDonald observed that the University has an overriding interest in encouraging use of new media for instruction; the goal is to for the faculty to feel both empowered and protected. It is appropriate to rely on policies like APM 025 to provide the boundaries. Kurtz expressed the view that it is important to keep ownership with the faculty, to avoid adverse reactions and to provide incentives, and Hume observed that the "textbook tradition" has served higher education well. Cowan asserted that the issue is how to craft policies that will allay faculty concerns about the inevitable gray areas. Berck opined that in the case where faculty were to use NO UC resources to, e.g., tape a series of lecture, most faculty would feel there’s no real UC interest. Based on the UCI Extension experience, Matkin suggested that faculty concerns are of two kinds: portability (the right to take the course to another institution when they leave UC), and creative control (quality control, updating, the ongoing role of the home department and successive faculty).

MacDonald suggested that the key policy variables bearing on these interests are 1) ownership, 2) use of University resources and facilities, and 3) appropriate use of copyrighted course content. Matkin believes that the objectives of policy should be to 1) protect UC and its faculty from charges of unjust enrichment; 2) protect and foster the conduct of normal business; and 3) ensure that commercialization happens with appropriate consultation and distribution of benefits. Berck observed that policy should not prevent legitimate use by students, and that it might be necessary to strengthen the rights of students in policy.

There was consensus that the draft policy should be revised to strengthen the prohibitions against external use, while taking a liberal approach to use by faculty for University purposes. However, models for distribution are proliferating, and the "commercial/UC" dichotomy is becoming less clear. In the case of Web sites offered by publishers in conjunction with their textbooks, for example, commercial interests "donate" services that add value to instruction. This may be an evolving gray area that will lead to referral of disputes to the CPC.  Kurtz asked members of the Committee to email any suggestions for strengthening these provisions to her.

The Committee proceeded to discuss some details for revision of the draft, addressing the use of the term "designated academic appointee," the composition and appointing authority for the campus Copyright Policy Committee, the importance of requiring permission in writing where applicable, and the appropriate terminology to describe the verbatim recording of course presentations in Part II. Part III is fine for now, although there are issues related to faculty disclosure related to their publications and the rights they have retained that will require subsequent discussion. These changes will be incorporated in the next draft of the policy.

In the course of the discussion, the following additional points were raised:

• Butter noted that these policies have some implications for libraries. For example, does faculty use of instructional development laboratories, often located in the library, implicate EUR?

• Matkin noted that the campus CPCs will need access to appropriate advice and expertise

• Borgman noted that not all "recordings" take place in the classroom, e.g., threaded discussions through course Web sites. She also noted that the use of these "records" might have FIRPA and human subjects implications.

• Berck observed that one reason for these policies is to protect open discussion (a principle arising from the oral tradition). This is clearly an issue for the University Committee on Educational Policy

• In response to a question about the faculty focus groups discussed at an earlier meeting of the committee, Cowan responded that the Senate has been awaiting the development of sufficient specificity to stimulate meaningful dialog. The University Committee on Faculty Welfare has talked generally about these issues, and the University Committee on Academic Freedom is interested.

• Kurtz will revise, and Lawrence will distribute to SCC for review, collect comments and convey to Kurtz for subsequent revision
• Cowan, Zelmanowitz and Campbell will arrange to send to the campuses and Senate for informal review before summer, after revisions are vetted by the Committee

Matt Peterson, UC Office of Federal Government Relations, led the Committee in a wide-ranging discussion of copyright-related issues that might arise in the 107^th Congress, including a review of the role of the UC Office of Federal Government Relations and a survey of Congressional organization and the views of key legislators related to copyright. No action is required at this time, but the Committee may be asked for advice on a University response in eight areas that may move forward in this session:

1.  Sovereign Immunity (11^th Amendment) defense for state infringement of intellectual property
2.  Digital Millennium Copyright Act (DMCA) revisions dealing with fair use, first sale, and technological protection measures
3.  Changes to Internet Service Provider exemptions in DMCA dealing with contributory infringement
4.  Intellectual property protection for databases
5.  Use of copyright-protected material in digital distance education
6.  Napster
7.  The Uniform Computer Information Transactions Act (UCITA)
8.  Provisions related to privacy in e-commerce.

4. Continuous Universitywide Education on Copyright (Update)

Hume introduced the topic by reminding the Committee that, with regard to copyright on research-related publications, the Committee has already discussed the Tempe Principles; and agreed that additional information, discussion and education on the Principles would be desirable, but only after resolution of the course ownership issues.

Lawrence began by reviewing some of the characteristics of a successful copyright education/information/service program, as discussed by the Committee at its 10/31/00 meeting. These include:
1.  Structure and Organization: a successful program will need:
      a.  A Universitywide capability for leadership and coordination
     b.  A well-coordinated all-campus structure
2.  Program Strategies
     a.  Faculty need project-based advice and services
     b.  Leverage campus resources and expertise
3.  Additional comments:
     a.  A multipronged effort will be necessary, including a PR campaign
     b.  It is important that the program quickly be perceived as effective

Recognizing the complexity of these issues, the Committee wrote a letter to the Provost requesting dedicated staff support for the Universitywide leadership component. The Provost is still deliberating on this request; according to Zelmanowitz, the Provost wishes to understand a) the extent to which this commitment from UCOP might create an "unfunded mandate" for the campuses, and b) the full extent of the long-term commitment that would be required from UCOP.

Lawrence proceeded to present a concept that had only emerged in internal UCOP discussions within the last week, and that might provide a way to launch copyright education activities on a small scale. The University of California Teaching, Learning and Technology Center (TLtC) is a newly-established center-without-walls that seeks to provide systemwide visibility of campus and faculty efforts in the development and use of teaching and learning technologies and complementary support to leverage those efforts for the benefit of the University. The Center supports two programs:

1.  Teaching, Learning, and technology Collaborative Grants aim at furthering the innovative uses of instructional technology through partnerships within and across campuses. The UC Office of the President has earmarked $200,000 annually through 2005 to support these endeavors.

a.  Feasibility/Planning Mini-Grants: Awards up to $5,000. Round one proposals were received by February 1, 2001; round two proposals are due by April 18, 2001.

b.  Full-Scale Implementation Grants: Awards up to $75,000 per year; funding for a project is available for up to three years for a total of $225,000. Annual application for multi-year projects is required. Proposals are due by April 18, 2001.

An established network of campus program representatives representing a variety of perspectives, responsibilities and administrative levels.

In early discussions with prospective grantees and campus program liaisons, several copyright-related issues have emerged. First, faculty who are prospective grantees are asking questions about rights in their instructional applications and their ability to control use of and receive appropriate credit for their work in the environment of shared development and use that characterizes the program, i.e."if I share it, how can I keep from getting ripped off?" Second, there are questions, so far not carefully addressed, about the University’s interest in the results of grant-supported development and diffusion activities within the TLtC.

A pilot program to explore and develop copyright information, education and services, addressed to the TLtC program participants, has several prospective benefits.
1.  Limited scope – more manageable, more likely to yield useful results quickly
2.  Leverages an existing multicampus organization
3.  Focus on expressed concerns of faculty in relation to specific projects
4.  Opportunity to discover, assess and organize pockets of campus responsibility/expertise.
5.  The Webzine could serve as a vehicle for PR and information dissemination.
6.  Supports a program of particular interest to President Atkinson that has already been reviewed Universitywide.
7.  New program, limiting problems related to established "turf."
8.  Could address a number of complex issues questions of interest to the SCC:

a.  The appropriate uses of "ownership," agreements, and custom to protect works of individual scholarship in a collaborative development environment.
b.  The use of agreements to define rights and responsibilities in works, including works that involve substantial University resources; the feasibility and utility of creating sample agreements.
c.  Joint and serial authorship, and treatment of derivative works
d.  Role of staff and students in development of copyrightable work.
e.  Varying campus treatment of "software" as a different class of copyrighted works.
f.  Role of third parties in development and marketing
g.  Rights management roles and responsibilities in instances of complex ownership and/or assignment of rights.

In discussion, Hume noted that this development project would not, per se, address broader information/education issues, such as the TempePrinciples, DMCA safe harbor, etc. There was some discussion of the idea that the Senate might be the best organization to undertake broad discussions about the Tempe Principles. Cowan noted that any proposal along these lines should demonstrate a relationship to the University’s long-term goals for copyright education. Matkin noted the potential for using technology to deliver some aspects of copyright education; at UCI, for example, human and animal subjects researchers are given an online test.

Consensus: the Committee would like to see an expanded proposal at the next meeting.
ACTION: Staff will prepare a proposal for the April meeting.

5. Next meeting

The next meeting has been scheduled for April 20, 2001; the location will be an airport hotel in the vicinity of San Francisco International Airport.