University of California Standing Committee on Copyright
April 29, 2003, Noon - 4 p.m.
Main Library, Room 570
University of California, Irvine

MEETING NOTES

[SLASIAC-SCC Joint Discussion]
Scholarly Communication and Faculty Information
- Alternative modes of scholarly communication
- "Journal Economics" and negotiation with commercial publishers
Background Material:
· Communication with UC Faculty on Topics Related to Scholarly Communication (April 18, 2003)
· Resolution G - Digital Library Journal Collecting Principles

Greenstein outlined the case that the economics of digital licensing and the bundled multi-title "big deal" are not sustainable. Recognizing that it is in the best interest of both UC and the publishers to find a mutually satisfactory way to continue current digital subscriptions, the CDL proposes the following strategies for dealing with the problem, in order:

• Offer strategic partnerships with journal publishers, for example, to serve as a print and digital archive for the publisher's product with a reduced subscription price;
• Continue to subscribe to the publisher's whole package, but negotiate a substantial price reduction and tie future price increases to enrollment growth.
• With no prospect for a contribution to the shared print collection, CDL withdraws its co-investment and the publisher can deal directly and separately with the campuses.
  

If these strategies are to be credible, faculty must be aware of and prepared to support them, including the possibility of cancellations of digital titles. Regarding methods of informing faculty about these issues, there was considerable discussion of the relative merits of early (as soon as possible) and late (Fall 2003) notification. Early notification allows faculty and libraries to prepare, but may polarize attitudes unnecessarily; late notification allows time for negotiations with publishers to develop without risking alarming faculty unnecessarily, but may leave too little time for faculty consultation if cancellations prove necessary. The consensus was that setting the stage now for what appears to be an inevitable confrontation seems desirable. It will also be necessary to be sensitive to the situations on individual campuses, and to structure the process so that the libraries will not be seen as standing between the faculty and the publishers; to these ends, UCOP will work with and provide support to the ULs.
[End SLASIAC-SCC Joint Discussion]

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

2. Copyright policies
a. Policy on Recording of Course Presentations: revised drafts for review (Discussion/Action)
Background Materials:
· Policy on Distribution of Recordings of Course Presentations ("Lawrence draft")(2/26/03 draft, revised 4/7/03)
· Policy on Recordings of Courses and Other Instructional Presentations ("MacDonald draft")(Draft, 4/21/03)

Following the discussion at the February meeting, both MacDonald and Lawrence drafted revisions of the draft policy on recordings to clarify and simplify the policy along the lines of the discussion. To resolve the ambiguity between regulation of creation of recordings and their distribution that plagued the first draft, Lawrence's revision focuses exclusively on permissible distribution of recordings; MacDonald's, by contrast, seeks to regulate the creation of recordings. Lawrence conveyed a few additional notes on MacDonald's draft, in her absence:

• A Designated Academic Appointee may create a recording for the purpose of preparing materials for a scholarly/aesthetic work, but may not incorporate the recording verbatim in that work. This provision appears intended to prevent faculty from simply videorecording their courses, compiling the recordings, and selling them later under the dress of scholarly/aesthetic works.
• MacDonald believes that most campuses have rules regarding lecture notes and other student recordings. Her draft therefore defers to campus regulations rather than attempting to draft a policy that encompasses, accommodates and supersedes them all.
• Paragraph A.d. was put in because, without it, a faculty member could assert that the University could not tape a class without the professor's permission. In earlier SCC discussions, it was observed that there were some classes that were so esoteric (e.g., Hittite language) that the University should have the right to tape the professor and make it available to other campuses. This section is meant to address that eventuality. MacDonald believes that some such provision must be present if the administration ever wants to be able to make recordings under these circumstances. In an attempt to protect the faculty member, there is a condition that the professor needs to have been informed prior to teaching the class that it might be taped for instructional purposes.

It was the sense of the Committee that MacDonald's draft, by restricting the making of recordings rather than their use, took a new approach to the issue that had not previously been discussed by the Committee; for this reason, the consensus was to use the Lawrence draft as the basis for discussion and action.

Action: The Committee suggested some editorial changes to the Lawrence draft, and recommended that it be prepared as soon as possible for formal review by the campuses, with an objective of receiving campus comments by 10/15/03.

b. Policy on Ownership of Course Materials (Discussion/Action)
Background Materials: Policy on Ownership of Course Materials (Revised Final Draft, 4/16/03)

Lawrence reported that the new draft of the policy brought forward to this meeting addresses the following points raised for discussion at the February meeting:

• Definition of "Designated Academic Appointees": this draft severs the definitional link with the 1992 Policy on Copyright Ownership and defines a new term, "Designated Instructional Appointees."
• Definition and treatment of "Exceptional University Resources": this draft a) designates the Chancellors as responsible for management of University Resources under campus control, b) enjoins the Chancellors to develop consistent policies and procedures for identification of EUR, and c) provides that in the absence of an agreement, provisions of University and campus policies apply -- this gives Chancellors (but not necessarily UCOP) a means to deal with ex post EUR determinations.
• Definition of "Syllabus": this draft defines "Course Approval Documents" -- it does not deal directly with the power of originators to remove their names, but the definition is now so circumscribed that this should not be a problem.
• Expansion of "Purpose and Scope": some Committee members had suggested that the sections on Purpose and Scope be expanded to include some of the material prepared for the Committee's background report on this Policy. This draft does not implement that suggestion, but some of the material from the background document might be suitable for the President's transmittal of the policy.
  

In addition, Kurtz forwarded in advance these comments on the most recently revised draft Policy:

"… [In] Article II. Definitions - A4 - Designated Instructional Appointees … I would eliminate the phrase 'and therefore have a general obligation to produce course materials.'"

"… in III Ownership of Course Materials - C - Course Materials Created with the Use of Exceptional University Resources - second paragraph …. The sentence currently reads 'In the absence of an agreement, existing provisions of University Policy, including this Policy and the Policy on Copyright Ownership, and relevant campus policies and procedures shall apply.' I would replace this with 'Course materials not covered by an agreement are not Course Materials Created with the Use of Exceptional University Resources, and ownership of these materials shall be governed by Articles IIIA, B and D of this Policy.' This makes clear what was agreed to at the last meeting - if there is no agreement, the designated instructional appointee owns the materials, subject to B and D."

On the definition of Designated Instructional Appointees, the Committee agreed that Clinical Professors should be explicitly mentioned for the avoidance of doubt, and that the ability to designate other academic titles as Designated Instructional Appointees be reserved to the President.

With regard to Exceptional University Resources, there was considerable discussion of the provision added by Lawrence to provide an ex post method to invoke the EUR provisions, and about Kurtz' proposed revision of this language. Binion in particular acknowledged the potential for abuse of the EUR provision by individual faculty and the resultant consequences for the faculty as a whole as well as the institution. It was recognized that there is no easy means within the framework of this policy to balance the potential of abuse by individual faculty on the one hand with the potential of abuse of the ex post authority by administration on the other. It was noted that the language allowing for negotiation or renegotiation of an agreement at any time (language that was first suggested by faculty members affiliated with the Council of UC Faculty Associations) provides one possible escape hatch; other University policies (most of which are cited in the Policy on Ownership of Course Material), including the Faculty Code of Conduct and the Policy on Conflict of Commitment, may also be applied. It was agreed to accept Kurtz' recommended language with some modifications, and to ensure that this issue is addressed in the President's transmittal letter for the final Policy.

Action: With the revisions discussed here, the 4/16/03 version of the Policy on Ownership of Course Materials is deemed ready for promulgation as a Presidential Policy, subject to consultation with senior management and Academic Council leadership about the need to consult with campuses about changes made since the formal review.

3. Continuous Universitywide Education on Copyright
a. Copyright Information Web site
i. Status report - project plan (Information)
ii. Review of "authoritative" content (Discussion/Action)
Background Materials:
· Introduction
· Off-Air QuickGuide
· Fair Use QuickGuide
· Copyright Ownership QuickGuide
· Copyright Ownership
· Public Domain
· Fair Use
· Obtaining Permissions
· TLtC FAQ

Lawrence reported that, in the wake of the Committee's comments on Susan Lessick's prototype Web site at the last meeting, a three-phase program is underway to prepare the site for a Universitywide debut in the Fall. Joanne Miller, Library Planning Analyst in the Office of Systemwide Library Planning, will serve as project manager, but it is expected that Susan Lessick will be retained as a Consulting Editor during this period.The first phase involves review, revision and endorsement of the material that speaks with the University's voice - "authoritative content." This is scheduled for April and May. The second phase is a design review (May/June), to deal with site design and navigation. The last phase is functional testing (July/August). In addition, there will need to be an opportunity for review and comment by several University constituencies, but it is currently unclear whether this needs to be accomplished before the site is announced to the University, or can be accommodated as part of the rollout. With this unresolved issue in mind, the goal is to complete the first public version of the site by September 1.

The documents included as background for this meeting are part of the "content review" phase. These documents are based on Lessick's prior work, but the "authoritative" content has been split out from the "informational," a dichotomy that will also be reflected in the site design. As SCC agreed at its last meeting to serve the top-level editorial policy role in overseeing this Web site, a process is needed to review, vet and approve this "authoritative content." It was the sense of the Committee that the most important voice in the review of this material would be that of the Office of General Counsel, and that the Committee's involvement would be most productive in the pre-release review of the final product.

b. Scholarly Communication information and education - status report (Information)

Not addressed owing to insufficient time.

4. Copyright Legislation
a. File sharing - Congressional Concerns (Information)

Not addressed owing to insufficient time.

b. Technology, Education and Copyright Harmonization (TEACH) Act (carried forward from 2/27/03 meeting) (Information)

Not addressed owing to insufficient time.

5. Next steps/Next meeting

Not addressed owing to insufficient time.