Colleen Lye and James Vernon, co-chairs of the Faculty Association at the University of California, Berkeley, have a fantastic piece in today’s Chronicle of Higher Education on the threat posed to faculty intellectual property rights, academic freedom, and educational quality by university claims to copyright over faculty-created online course materials.

“The Erosion of Faculty Rights” is a must-read.  “In the rush to online education,” Lye and Vernon begin,

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.”

Using Berkeley as their prime example, Lye and Vernon demonstrate how the university has been violating its own system-wide policy, which “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, they continue,

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.

The threat, the authors note, is real and ominous:

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.

One thing that Lye and Vernon don’t mention, however — and this is hardly meant as a criticism — is that the University of California, along with many other public and private institutions, has aggressively sought control of the faculty’s intellectual property rights in other spheres too.   In recent years the UC has tried — with more than minimal success — to compel faculty to sign a “patent amendment” to their employment contracts, which grants to the university all patent rights to any products of faculty research created during the faculty member’s term of employment by the university, essentially treating faculty as if they were employees of a corporate R&D company and their research simply “work made for hire.”

Now most faculty members, even in the physical sciences, will not invent something patentable, but the legal principles covering patents and those covering copyright are closely related, if not identical.  An institution that claims control over any faculty work product may well seek to extend that control to all faculty work product, and that is precisely what we are witnessing in the actions documented by Lye and Vernon.

The AAUP has collected its own policy statements and other materials on faculty intellectual property rights in one place on our website, under the heading “Intellectual Property at Risk.”  After reading Lye and Vernon, go there to learn more.  As Lye and Vernon conclude:

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.