The Erosion of Faculty Rights

In the rush to online education, faculty members have been signing contracts that abrogate the ownership of their classes, erode their collective interests, and threaten the quality of higher education. No standard (let alone best) practice has yet emerged, and faculty members are largely in the dark about what is at stake.

Put simply, the stakes are huge. Online education is the new frontier where the traditional rights of faculty members and the quality of instruction are up for grabs. It is a frontier that threatens to turn all faculty members, including those on the tenure track, into teachers who “work for hire.”

In some ways, our own campus, the University of California at Berkeley, is typical. In 2013, without any faculty consultation, the administration signed a contract with MIT-Harvard’s edX in a scramble to join the club of private elite universities and private spinoffs that are developing online-education platforms and course content targeted at underfunded public-education markets. Within Berkeley itself, there are in-house platforms developed by a newly established, relatively under-the-radar entity, called the Berkeley Resource Center for Online Education, that operates fully online or hybrid master’s-degree programs at the School of Public Health and the Haas School of Business, as well as a variety of undergraduate, summer, and extension courses online now being offered for certification and for credit.

Meanwhile, other professional schools at Berkeley, including the schools of information and of law, have gone into business independently with external platform providers, such as 2U and Canvas, to deliver fully online or hybrid degree programs. As those administration-led online-education programs have proliferated, the faculty senate has been hard-pressed to keep pace. It is unclear whether the vaunted “dual governance structure” of faculty and administration is adequate to reckon with the consequences of these online contracts for faculty rights and curricular oversight, at Berkeley or beyond.

The University of California system’s existing policy is that all teaching on campuses—including the materials instructors create for classes, whether lecture notes, multimedia presentations, or web-ready content—is protected by copyright, and the creators of the material have exclusive rights to their uses.

Yet in the Wild West of online education, faculty members are being offered a variety of terms and contracts. Some accord course copyright exclusively to the university so that the courses are no longer considered the property of their creators. Other contracts establish joint ownership by the instructor and the university on the grounds that the university has invested substantial resources in putting the course online. Often faculty members are offered no contract at all, and though the University of California’s course copyright policy states that copyright lies with the instructor, there is no assurance of judicial protection.

Even assuming that a faculty member has the resources to litigate, two recent decisions (Manning v. Board of Trustees of Community College District No. 505 (Parkland College) and Forasté v. Brown University) suggest that general university policies are not preventing courts from deeming courses as “work for hire” created by “employees within the scope of their employment.”

Finally, there are contracts that accord copyright to the instructor but license the university to have the course taught by others and to modify it at will.

It seems likely that, because the costs of developing online classes good enough to attract paying customers (whether individuals or other campuses) are considerable, universities will increasingly seek to assert full or joint copyright ownership, and/or aggressive licensing agreements, so as to recoup their investment.

What does that mean for faculty members? The Berkeley Faculty Association consulted an intellectual-property lawyer to find out. This is what we discovered.

When the university claims full ownership of a course, the university is free to re-offer it, revise it, license its use by others, or transfer its ownership to a third party. The university would be able to do that without either seeking the approval of the instructor who developed the intellectual content of the course, or paying her any additional compensation. In contrast, the instructor would not be able to use the course materials without a license or permission from the university, and could be sued for damages on the grounds of copyright infringement if she did so. The instructor would also be unable to use the course materials to create derivative works. Demanding that faculty members sign over their course copyright is effectively a land grab of the intellectual property and the academic reputation of the instructor.

In comparison, at first sight, joint ownership of copyright seems like a sensible compromise. It offers the instructor and the university the right to commercially exploit the course as long as they both share equally in the proceeds. Yet the instructor would still effectively lose control of the course and its materials. The university would still be able to offer the course in its original form for as long as it liked or in any number of derivative versions, without consultation or approval by the instructor. Thus the faculty individual would not be able to stop the university from offering a course she considers egregiously outdated or from offering dumbed-down versions of her lectures. As co-owner, however, the university would not be able to enter into an exclusive license agreement with a third party since such an agreement would harm the ability of the other joint owner to use or license the work.

When universities sign contracts with online-platform companies, they have university lawyers to look out for their interests. Yet when faculty members are recruited by their own universities to participate in those initiatives, they seldom have access to the legal advice that could inform them of what they may be signing away. This is a problem for faculty members who want to teach online courses. But it is also a problem for faculty members who will never teach an online course.

At stake here is the erosion of the rights of faculty members and their expert responsibility to guarantee the quality of education. When a university or online company claims full or joint ownership of a course because of its technological contribution to the course, faculty members lose the ability to maintain standards of excellence in their own courses. So does the university lose its ability to assure instructional quality, a standard of excellence that is founded on the reputation of its faculty and can only partly be enforced by course-approval committees because they are generally not in a position to judge the expert content of a course.

By embracing online education, universities run the risk of reducing their faculties to mere “content providers” whose value is considered secondary to—and less worthy of investment than—the technological platform. The university would be selling reputation detached from content, and the quality could not be guaranteed.

Ironically, the result of the increased digital delivery of American higher education could well be a more static, less dynamic model of knowledge transmission—particularly when online courses are seen as a source of revenue savings by cash-strapped campuses. In a world where faculty members may no longer own the intellectual content of our courses, university teaching is being modeled after textbook publishing, and less and less tied to the cutting-edge research that continually transforms what we know and how we teach our classes.

Last fall the Rutgers faculty voted to block new online programs the university had contracted with Pearson that would require faculty members to license the university to have their courses taught in the future by others. Faculty members at the University of Virginia, the University of Michigan, and Duke have also rebelled against Coursera contracts that give their universities incentives to claim ownership of faculty-created content. Faculty bodies at more universities should closely scrutinize the deals their administrations are making and the kinds of instructor agreements they’ll be seeking. Meanwhile, individual faculty members who consider teaching online classes should at least make sure that they are not signing contracts injurious to themselves and, by extension, to us all.

Colleen Lye and James Vernon are co-chairs of the Faculty Association at the University of California at Berkeley.

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