Members present:	Acanfora, Berck, Borgman, Campbell, Cowan, Hume, Kurtz, Lucier, MacDonald, Matkin, Smith, Zelmanowitz
Members absent:	Hecht, Wienhausen
Guests	Catherine Candee, Director of Scholarly Communication Initiatives, California Digital Library; Robert Tacconi, UCOP Student Academic Services (morning only)
Staff:	Lawrence

1. Preliminaries
 

Background materials: Standing Committee on Copyright Roster

1.a. Welcome and introductions. Hume convened the meeting at 10:10. Members and guests introduced themselves.
1.b. Review of meeting objectives. The meeting objectives were reviewed.

2. Basic Copyright Principles

Lawrence briefly summarized the characteristics of the legislation signed by the Governor and chaptered in September 2000, noting that the bill requests the University of California to do two things: a) develop policies, in consultation with faculty, prohibiting unauthorized recording, dissemination and publication of academic presentations for commercial purposes (§66452(a)), and b) adopt regulations setting out penalties for students who violate these provisions (enrolled students are specifically exempted from the civil penalties provided in the act) (§66452(b)). In discussion it was observed that the bill as written a) may prevent students from distributing notes to fellow students, b) does not explicitly cover recordings, c) prevents faculty from making any commercial use of course notes except as provided by institutional policies to be developed under the provisions of §66452(a); and d) UC has standing to sue under the act only if the University adopts its provisions.

Lawrence and Tacconi reviewed the review of student conduct regulations currently underway under the leadership of the UCOP Office of Student Academic Services, including newly-introduced provisions intended to address the student conduct aspects of AB 1773. Hume noted that UCLA has brought forward policies and regulations based on AB 1773, but MacDonald expressed the view that to have legal effect the University, not individual campuses, must adopt AB 1773. In subsequent discussion, it was suggested that a) the phrase "or using them" be deleted from draft student conduct policy 102.08; b) "permission of the instructor" is not a sufficient condition to protect institutional interests; and c) there are objectionable non-commercial uses, as well as the commercial ones addressed by the act. Berck suggested that a UC response should address the following points: 1) policy should address all media, including contemporaneous recordings; 2) policy should emphasize the obligations of faculty and students to each other, whether or not commercial use is involved; 3) policy should clarify the role and scope of permission by the institution, as well as by the faculty member; 4) the response should emphasize that authorization to record and/or commercialize should not be granted inadvertently (i.e. explicit permission should be require in all cases); and 5) policy should emphasize the importance of and make explicit provision for written consent.

It was the sense of the Committee that Resolution A should be revised to cast the issue in general terms, rather than focusing on the specific provisions of the Act, and that deliberations on this matter should be informed by the policies and regulations currently in force at UC campuses, particularly UCB and UCLA. Action: Lawrence will revise Resolution A for review by the Committee. Action: Lawrence will obtain and distribute the relevant policies and regulations from UCB and UCLA.

3. Universitywide Copyright Policies

Hume began the discussion by emphasizing that the Committee should be guided by the principle that UC policies should be crafted to enhance, not limit, the creativity of the faculty. He noted that the Tempe Principles (see item 6.a. below) start with the position that faculty own their scholarly works, and ask faculty to use their copyright rights responsibly in the interests of scholarship. Hume also noted that attempts to provide systematic education to faculty while the question of "ownership" of teaching materials remains murky is unlikely to be successful (see also item 5.a. below). In connection with the work of this committee and discussions among AAU Chief Academic Officers, Hume has been examining the policies of other institutions. Most policy approaches begin with the simple assumption that the creator has ownership of scholarly work unless work-for-hire provisions apply. Existing policies generally assert 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. Institutions differ, however, on their approach to application of these general principles. Columbia and MIT, for example, proceed from the assumption of institutional ownership and define the specific exceptions in which the creator will hold copyright. The University of Oregon takes a middle ground in this continuum, although its policies are among the few that assert an institutional interest in textbooks. Many institutions (the University of Illinois and George Washington University are examples) proceed from the assumption that the creator is the owner, and articulate the circumstances in which the institution may have an ownership interest. The California State University has a particularly straightforward policy (developed with the CETUS consortium consisting of CSU, SUNY and CUNY) based on ownership by the creator, with specific definitions of "substantial University resources.

Discussion focused on appropriate goals for policy, some issues arising in formulating policy, and a variety of policy strategies:

1)  Goals

a)  Policy should be simple, reassuring to faculty, and productive.
b)  Make it easy for interests to define their relationships and arrive at agreements.
c)  Policy could be formulated to cover the "default" situation, with procedural provisions to handle exceptions.
d)  Ownership of a "course" must recognize and preserve the institutional interest. Part of the intellectual property value of a "course" consists of the selection and ordering of instructional "objects" – this both involves the appropriate use of the intellectual property of others, and invokes the role of the institution and the faculty as a whole in defining the curriculum.

a)  Administration and management of UC patent policy and individual patents involves some 70 staff at UCOP, but disclosure of patentable discoveries is voluntary, and Acanfora estimates that perhaps 30% of protectable inventions are captured (probably less than one percent for electrical engineering/computer science). In patent policy, enforcement results from the affirmative obligation to disclose. How can we impose an obligation on the faculty to foresee the possibilities and disclose the "deal" for copyrightable works?
b)  A basic "creator owns" policy does not address two critical issues: a) use of substantial University resources, and b) joint, multiple and serial authorship.
c)  Public goods/fair use/access considerations should not be neglected.
d)  Students as (co-) authors cannot be compelled to contract.
e)  The "designated by the Chancellor" rule in current policy for determining "substantial University resources" is not workable.
f)  Use of the University name is governed by UC policy on use of the UC name and seal, and Education Code §92000.
g)  A "course" is something different from "course material." Consideration of the "course" as a whole involves the intersection of copyright and conflict of interest/commitment policies.

a)  Ownership is important, but not sufficient. "Who owns" may be the wrong question. Good policy should emphasize the importance of explicit agreements among the parties.
b)  Berck tried out on UCEP the concept that UC has non-exclusive rights in a course syllabus (including the right to use with another faculty member or use after the originator had left UC), and that the faculty have the (non-exclusive) right to modify or to take with them to another institution). UCEP found this formulation acceptable.
c)  Is the 1992 copyright ownership policy fatally flawed, or can it be amplified and clarified with specific guidelines?
d)  Most commercial products result from an agreement made in advance of the product’s creation. It might be possible to create an OTT-like administrative function to channel commercial activities. In this approach, faculty might be expected to disclose use of "substantial University resources" up front, e.g., "if you plan to use…."
e)  Making provision for a paid-up, royalty-free, non-exclusive institutional license might satisfy the institution’s interests.
f)  As course teaching responsibilities are assigned to faculty, the resulting course could be considered a "commissioned work" for policy purposes.
g)  A campus "advisory committee on copyright" could a) advise on disputes between individuals and the institution, and b) recommend resolution of specific disputes.
h)  The issue of "substantial University resources" could be addressed by a) establishing an unambiguous threshold covering routine situations (and optionally providing a guideline for allocation of royalties in these simple cases), and b) establishing a committee of faculty peers to judge the situations not adequately addressed by the policy threshold.
i)  If there is no agreement "up front," a dispute could then trigger an implicit "arbitration clause," invoking, e.g., the committee of faculty peers.
j)  How can the parties be bound to the decisions of an arbitration panel, particularly as long as fundamental rights are unclear?
k)  The arbitration panel concept embodies a fundamental inconsistency: a) faculty-based, b) advisory to administrative decisions, and c) expert in the issues.

4. Innovative Uses of Copyrighted Works

Lawrence introduced Catherine Candee, the California Digital Library’s Director of Scholarly Communication Initiatives. Candee remarked that, as the CDL changes its focus from management of published digital content to support for its creation and dissemination, the eScholarship program plays a key role in the effort to apply technology to innovation in scholarly communication. It does this chiefly by identifying promising scholar-led experiments, tracking new technological developments, and bringing these together to provide support for innovations. In appraising experiments and technologies, the program looks for opportunities that a) have the potential to transform scholarly communication, b) are ready for publication (e.g., the Dermatology Online Journal), c) foster collaboration within and across disciplines (e.g., the Electronic Cultural Atlas Initiative), and/or d) test communication models that might expand to and benefit broader communities of scholars (e.g. the Tobacco Wars project). Candee briefly reviewed the scholarly communities with which eScholarship is currently working, and enumerated the scholarly communication and publishing models currently under development, where emerging practice may challenge existing thinking about copyrights. These models include:

• Repositories for self-publishing of scholarly works (the arXiv e-print repository for physics and mathematics papers developed at Los Alamos being perhaps the best-known example) raise rights ownership and management issues with respect to tools used for public commentary and version control. The definition of the "publication" becomes uncertain in these dynamic publishing systems, and attribution of contributions is problematic.
• Digital journals, as they add functions beyond simple discovery and display of conventional papers, present problems similar to those of e-print repositories.
• Digital monographs and reference works (e.g. Tobacco Wars) provide links to primary sources and other resources, complicating attribution and raising significant challenges related to the preparation and management of derivative works. Dynamic digital reference works like the ADL Gazetteer developed by the Alexandria Digital Library (UCSB) raise issues of compilation rights and of ownership of individual records that are continuously added to the original "publication."
• Datasets and databases (e.g., the Electronic Cultural Atlas Initiative) represent a close coupling of information and the tools developed to maintain and display it, obscuring traditional boundaries between "content" and "software," complicating attribution and rights management, and introducing new concepts from the software world, such as "open source," into the content-oriented models of scholarly communication.

5. Continuous Universitywide Education on Copyright

Hume reported that this matter had been discussed with the Council of Vice Chancellors, who expressed willingness to cooperate if the nature of their commitment could be specified. Lawrence discussed the background material and the proposed resolution on this matter, explaining that campus stakeholders and expertise in copyright-related areas are widely diffused and variously organized. As UCOP currently has no specialized staff resources that can be devoted to organizing, coordinating and leading a copyright education program, and campus resources are widely distributed, the most productive path appears to be to work with the Council of Vice Chancellors to facilitate and coordinate the development of a campus-led program of copyright information and education.

Discussion revolved around two general themes: structure and organization, and program strategies.

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)  Identify and evaluate model programs; use test campuses and phased implementation (it was noted that UCD has a good program, under Janet Hamilton)
b)  Consider eScholarship as a model: provide basic information, provide a bibliography of more specialized material
c)  Faculty need project-based advice and services; UCLA, for example, is rebuilding its tech transfer activity as an intellectual property service
d)  Focus on training-the-trainer programs
e)  Leverage campus resources and expertise through planned specialization, where each campus develops specialized skills that can be made available to the Universitywide community.
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
c)  Consideration must be given to learning objectives, target audience, the audience’s initial state of knowledge, delivery methods

1)  A Universitywide resource for leadership and coordination, supplemented by clearly designated leadership at each campus.
2)  A focus on educating campus administrators in all relevant areas at all levels
3)  A highly effective Web-based informational resource
4)  Direct-to-faculty delivery of essential information

Action: Staff will prepare a one-page summary of issues and alternatives for the Committee’s consideration at the next meeting. Action: The Committee Chair will write to the Provost advocating the establishment of defined senior staff support for a Universitywide copyright function (including education, communication, and intellectual property services).

The Committee took no action on draft Resolution C.

6. National discussions and initiatives

Hume provided a brief review of the origins and main points of the "Principles," focusing chiefly on Principle 6 ("In negotiating publishing agreements, faculty should assign the rights to their work in a manner that promotes the ready use of their work and choose journals that support the goal of making scholarly publications available at reasonable cost"). In a brief but wide-ranging discussion, it was observed that a Committee endorsement of the "Principles" could be misinterpreted by some UC constituencies. It was agreed that no action by the Committee was necessary at the present time, but that the concepts of Principle 6 should be woven into the education program.

7. Next meeting
 

Background Material: SCC 2000-01 Work Plan (4/25/00)

Action: The Committee will meet again in January-February and in April-May.

The meeting was adjourned at 2:45 p.m.