nettime's roving correspondent on Fri, 8 May 1998 06:32:33 +0200 (MET DST)

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<nettime> Digital Diploma Mills, Part II


The Coming Battle Over Online Instruction

Confidential Agreements Between Universities and Private Companies
Pose Serious Challenge to Faculty Intellectual Property Rights

(c) by David F. Noble, March, 1998

Tensions are rapidly mounting today between faculty and
university administrations over the high tech commercialization of
higher education. During the last two decades campus commercialization
centered upon the research function of the universities, but it has
now shifted to the core instructional function, the heart and soul of
academia. In both cases the primary commercial impulse has come from
non-academic forces, industrial corporations seeking indirect public subsidy
of their research needs and private vendors of instructional hardware,
software, and content looking for subsidized product
development and a potentially lucrative market for their wares. In
both cases also, there has been a fundamental transformation of the
nature of academic work and the relationship between higher educational
institutions and their faculty employees. With the commoditization
of instruction, this transformation of academia is now reaching the
breaking point.

The commercialization of research entailed the conversion of
the intellectual process of research into discrete products - inventions
- and the conversion of these inventions into commodities - something that
could be owned and exchanged on the market - by means of patents and
exclusive licenses. With this change, faculty who conducted
research in the service of their role as educators and scholars, became
instead producers of commodities for their employer. Universities could
become commercial players not only because they were the major site of
federally-funded scientific and technological research but also because
amendments to the patent law had given academic contractors ownership of all
patents resulting from federally-funded research. This potentially gave the
universities something to trade with industry: licenses to
those patents. But before the universities could make any proprietary deals
with industry they had first to secure the patent rights of their research
faculty and staff, because patents are issued only to inventors not to
institutions. Universities thus established ad hoc arrangements with their
own professors, giving them a share of revenues in exchange for their patent
rights. Eventually, they adopted formal intellectual property policies
similar to those devised many decades before by
private industry: employees would be required contractually to assign their
patent rights to the university as a routine condition of

In the process, research, formerly pursued as an end in
itself or as a contribution to human knowledge, now became a means
to commercial ends and researchers became implicated, directly or
indirectly and wittingly or not, in the business of making money
for their universities. The commercialization of academic research
brought universities and industry into close partnership; it made
some people very rich and no doubt resulted in the development of
some new technologies. But it also ushered in a brash new regime of
proprietary control, secrecy, fraud, theft, and commercial motives
and preoccupations. Some argue that this new commercial ethos has
irreversibly corrupted the university as a site of reliably independent
thought and disinterested inquiry, placing in jeopardy a precious and
irreplaceble public resource.

Today the universities are moving rapidly to commercialize their
instructional activities in much the same way. Here the instructional
process, classroom teaching, is converted into products, such as a CD ROMs,
Websites, or courseware. These products are then converted into marketable
commodities by means of copyrights and licenses to distribute copyrighted
instructional products. Like the commercialization of
research, the commercialization of instruction entails a fundamental change
in the relationship between the universities and their faculty employees.
Here faculty who develop and teach face-to-face courses
as their primary responsibility as educators are transformed into mere
producers of marketable instructional commodities which they may or may not
themselves "deliver."

Universities today are going into business for themselves, as the producers
and distributors of commercial instructional products, or they are making
deals with private firms for the production and distribution of online
courses. But before the universities can begin to trade on their courses,
they must first control the copyright to course material. Course copyright
is the sine qua non of the digital diploma mill. In copyright law, however,
ownership follows authorship. This means that course materials are the
property of the teaching faculty and staff
who developed them. Traditionally, universities have acknowledged that
faculty, as the authors of courses, have owned their course materials and
hence copyright to them (except in those cases where extraordinary
university resources were involved in course development, which might entail
shared ownership). But the universities are now undertaking
to usurp such traditional faculty rights in order to capitalize on
the online instruction marketplace, and it is for this reason that the
rather arcane matter of copyright and intellectual property has become the
most explosive campus issue of the day. Here the battle line over the future
of higher education will be drawn. For faculty and their
organizations it is a struggle not only over proprietary control
of course materials per se but also over their academic role, their
autonomy and integrity, their future employment, and the future of
quality education. In the wake of the online education gold-rush,
many have begun to wonder, will the content of education be shaped
by scholars and educators or by media businessmen, by the dictates of
experienced pedagogy or a quick profit? Will people enroll in higher
educational institutions only to discover that they might just as well have
stayed home watching television?

At present the universities are in a phase of transition,
experimenting with solutions to their copyright dilemma. Such efforts must
be watched very closely because what happens now will likely
determine the future shape of higher education. During the last few
years several universities have entered into formal agreements with
private firms which give some indication of where they are headed:
UCLA and the Home Education Network (THEN), UC Berkeley and America
On Line (AOL); and the University of Colorado and Real Eduation. These
documents, heretofore confidential, herald the dawning of a new regime of
instruction strikingly similar to the commercial regime of academic
research. The initial loci of these arrangements are the extension
programs of the universities, the testing grounds for online instruction and
the beach-heads, so to speak, for the commercialization of higher education.
In each of these contracts, entered into without faculty
knowledge much less approval, the university has explicitly assumed
its own, rather than faculty, authorship/ownership of course materials, in
violation not only of academic tradition but perhaps also of federal
copyright law. In claiming authorship/ownership as a precondition of making
the deal, the universities might also have committed fraud.
Whether or not the universities have already overstepped legal
boundaries, it is clear that there is a move afoot here to establish
surreptitiously a new practice, a new tradition, in which universities
automatically own all rights to course material developed by faculty. Unless
faculty act quickly to assert and confirm their rightful claim to their
course materials, their inaction might retrospectively be seen by the courts
in the future as a tacit acknowledgement of the abandonment of those rights.
In the longer run, universities will no doubt undertake to routinize this
theft by requiring faculty to assign all copyrights on course material to
the university as a condition of employment as they have done with patents.

* * *

The first case to be examined is the secret agreement between
UCLA and The Home Education Network (THEN) signed on June 30, 1994 and
amended February 21, 1996. This agreement entailed the granting by a
university of exclusive production and distribution rights to electronic
courses, including copyright, to a private, for-profit corporation,
without any prior faculty consultation or approval.

THEN emerged not from the world of education but from the
fast hustle media world of spins and sound-bites, cable TV and public
relations. It was the brainchild of political media consultant
and television producer Alan Arkatov, who produced and marketed the
media campaigns of over a dozen U.S. senators, governors, and mayors, before
serving as Senior Advisor to President Clinton's 1992 campaign chairman
Mickey Kantor. In 1994 he negotiated a landmark contract with the Regents of
the University of California to form an unprecendented arrangement with UCLA
Extension (UNEX), the largest continuing higher education program in the
country. The agreement gave Arkatov exclusive rights to all electronic
delivery of UNEX courses and the exclusive use of the UCLA name for that
purpose, thereby launching THEN as "the most comprehensive continuing
distance learning program of its kind in the United States."

THEN is now directed by its President and CEO John Kobara, who
comes out of the cable television industry and the public relations
and marketing side of academia. A UCLA graduate, Kobara was vice
president and general manager of Falcon TV, one of the nation's largest
independent cable operators, and served as president of the Southern
California Cable Association before returning to UCLA to direct the
Alumni Association. By the time he joined THEN in 1997, Kobara was
UCLA's Vice Chancellor of University Relations directing all of the
university's public relations, marketing, and government and alumni
relations activities. Combining their media experience, political
influence, and insider knowledge of UCLA and its myriad community
connections, Arkatov and Kobara were well placed to make the most
profitable use of their ambitious arrangement with UCLA. But UCLA
administrators, meanwhile, had ambitions of their own, not only to
provide a new revenue stream for UNEX but to establish it, and UCLA, as the
premier vehicle for distance learning in the University of
California system, and beyond.

The extremely broad agreement between THEN (signed by Arkatov)
and the Regents of the University of California (on behalf of UNEX, a part
of the Division of Continuing Education of UCLA, signed by Robert Lapiner,
UCLA Dean of Continuing Studies) granted to THEN the exclusive right to
produce, for a ten year "production period", and exploit, in perpetuity, all
electronic versions of UNEX courses: "the sole, exclusive and irrevocable
right under copyright and otherwise to
make, produce and copyright by any means or 'Technology,' as such
term is hereinafter defined, now known or herefter devised during
the 'Production Period', as such term is hereinafter defined, audio, visual,
audio/visual. digital and/or other recordings of all UNEX
classes. . . ." as well as "the sole, exclusive and irrevocable right under
copyright and otherwise to exhibit, perform, broadcast, transmit, publish,
reproduce, manufacture, distribute, advertise, sell, rent,
lease, market, publicize, promote, merchandise, provide technical
support for, license and otherwise exploit, generally deal in and with and
turn to account the Recordings by all means and technology and in all media
and forms of expression and communication now known or later developed in
all languages throughout the universe (the 'Territory') in perpetuity. . .
." THEN also secured the right to use the "University of California" and
"UCLA" names in connection with the exploitation of their rights granted in
the Agreement, as well as the right to assign or transfer their interests in
the agreement to "any entity."

In consideration of this generous grant of rights, UNEX would
receive a percentage of THEN's gross receipts (increasing from 6 to

12 percent over the course of the term) plus reimbursement of expenses
incurred in the preparation of courses, including materials and
wages. UNEX retained the right to designate which courses would and
would not be converted to electronic form and the right to final
approval of their content. However, it agreed that "THEN shall have the
unlimited right to vary, change, alter, modify, add to and/or delete from
the Recordings, and to rearrange and/or transpose the Recording and change
the sequence thereof." In 1995 there was apparently some difference of
opinion between the parties over whether or not the

1994 agreement covered online and Internet delivery of courses. THEN
insisted that it did and ultimately prevailed upon UCLA to formally
amend the agreement stipulating explicitly that "UNEX and THEN
acknowledge that the inclusion of On-Line Rights is on the same economic and
other terms as pertain to Recordings in the Agreement and that all such
terms shall be interpreted so as to encompass On-Line Rights."

If the THEN-UCLA agreement brought the pecuniary preoccupations
of private commerce into the heart and soul of higher education, it
also carried with it another characteristic aspect of proprietary
enterprise: secrecy. Despite, or perhaps because of, the broad terms and
far-reaching implications of their agreement, THEN officials and UCLA
administrators formally agreed to keep it secret. In a confidentiality
clause in the 1994 agreement, it was agreed that "except as required by law,
UNEX shall hold in confidence and shall not disclose or reveal to any person
or entity confidential information relating to the nature and substance of
this Agreement. . ." and that any participating "Instructor shall hold in
confidence and not disclose or reveal to any person or entity confidential
information relating to the nature and substance of the agreement between
UNEX and THEN. . . ." While THEN clearly had proprietary motives for such
confidentiality, why did UCLA administrators, trustees of a public
institution trading in publicly-created goods,
agree to such secrecy? What did the university have to hide? Perhaps it was
what the agreement had to say about its larger ambitions, and, especially,
its relations with faculty.

Kobara's spin on the deal is that this arrangement is a modest one,
restricted to UNEX and thus without any significance, or any reason for
concern, beyond it. He insists that THEN has no relationship with UCLA but
only with UNEX,which he argues is an independent entity. This is not the
case. While UNEX is self-supporting, it is unambiguously a part of UCLA, as
the Agreement itself makes clear. It is for this reason that an officer of
UCLA, Robert Lapiner, signed the agreement, representing the Regents.
Moreover, Kobara's modesty is clearly belied by the Agreement, which reveals
intentions of a much wider scope. According to the
Agreement, "The parties contemplate that the relationship with THEN may
extend to other University of California campuses. Because of UNEX's unique
responsibility to be bound to THEN for the Term hereof, THEN
agrees that the participation of all other University of California
campuses as well as other academic units of UCLA in this project will be
coordinated by UNEX and for the purposes of this Agreement shall be
considered 'UNEX Classes.' An appropriate share of revenues otherwise
payable to UNEX for any such courses shall, however, be distributed
proportionately to the participating University of California campus or
other academic unit of UCLA." Whether or not they are able to realize their
grand vision, it is clear that UCLA from the outset intended to extend its
distance education operations beyond UNEX and, through UNEX - the largest
continuing education program in the UC system - beyond UCLA to other UC
campuses. This Fall the UCLA Division of Letters and Science launched its
Instructional Enhancement Initiative mandating that every course must have a
website containing at a minimum course outlines and assignments and
encouraging faculty to put their lectures and other
materials online as well. Like the THEN-UCLA deal, this action was
taken without debate or formal faculty approval. THEN and UCLA officials
maintain that there is no connection between this unprecedented
initiative and their UNEX activities. In response to increasingly
apparent faculty concern, UCLA's Provost of Arts and Letters Brian
Copenhaver has recently distributed a letter to all faculty insisting,
perhaps too much, that IEI is "resolutely and only academic" and that
"there are no plans to use IEI commercially." Reading the Agreement,
however, one has to wonder.

At the heart of the THEN-UCLA deal is the crucial matter of
copyright. As is typical in any such agreement, the parties must
attest to the fact that they indeed have the right and authority to
grant whatever it is they are granting. Thus, UNEX affirmed that "UNEX has
the full right, power, and authority to enter into and perform
this Agreement and to grant to and vest in THEN all rights herein set forth,
free and clear of any and all claims, rights, and obligations whatsoever."
Under this assumption, UNEX agreed that "As between UNEX, THEN, and the
instructors of the UNEX Classes (the 'Instructors'),
THEN shall be the owner of all right, title, and interest, including without
limitation, the copyright, in and to all Recordings of UNEX
Classes produced by and for THEN hereunder and, for purposes of Title
17 of the United States Code also known as the Copyright Act of 1976, as
amended (the 'Copyright Act'), THEN shall be deemed the author of the
Recordings." By what legal right and under what authority could UNEX make
such a grant, given the fact that the instructors who create the courses
rather than UCLA or UNEX are the rightful and heretofore acknowledged owners
of copyright? The instructors, of course, were never even party to this
agreement. This is the crux of the Agreement and all such arrangements.

In order to be in a position to uphold its side of the bargain,
UNEX formally agreed that it would undertake to compel its instructors, on
THEN's behalf, to assign their copyrights to UNEX, thereby enabling UNEX to
assign them to THEN. This was made fully explicit with the
inclusion in the Agreement of an "Exhibit A," outlining a compulsory
"Instructors' Agreement," whereby instructors would be made to surrender
their rights to UNEX as a condition of employment. The Agreement
thus stipulates that "UNEX shall use its best efforts to cause each
Instructor to agree in writing ('Instructor Agreement') for the specific
stated benefit of THEN, to the provisions set forth on Exhibit 'A'
attached hereto." Furthermore, the agreement stipulates that any such
Instructor Agreement had to meet the specifications not only of UNEX but
also of THEN, which "shall have the right of prior written approval of the
form and substance of the agreements entered into by UNEX
and Instructors concerning the production and exploitation of the

Exhibit A is a five page document which specifies in detail what
the Instructor must give up and do for UNEX and THEN in order for UNEX to
meet its contractual obligations to THEN. Predictably, the Instructor must
agree to grant to UNEX the same rights granted by UNEX to THEN, namely "the
sole, exclusive and irrevocable right under copyright and otherwise to make,
produce and copyright by any means or technology
now known or hereafter devised Recordings of all UNEX Classes taught by
Instructor" as well as "the sole, exclusive and irrevocable right under
copyright and otherwise to exhibit, perform, broadcast, transmit, publish,
reproduce, manufacture, distribute, advertise, sell, rent,
lease, market, publicize, promote, merchandise, provide technical
support for, license and otherwise exploit, generally deal in and with and
turn to account the Recordings by all means and technology and in all media
and forms of expression and communication now known or later developed in
all languages throughout the Territory in perpetuity." The Instructor must
acknowledge and agree that "THEN shall be deemed the author of the
Recordings" and that the "Instructor has no rights of any kind or nature in
the Recordings of UNEX Classes taught by the Instructor;" and must "forever
waive any right to assert any rule, law, decree, judicial decision or
administrative order of any kind throughout the world, which allows
Instructor any right in the moral rights (droit moral) in the Recordings."

According to Exhibit A, the "Instructor must not permit the Course Materials
utilized by the Instructor for UNEX Classes taught during
the Production Period to be recorded by any Technology, except by
THEN" unless it is approved by THEN or is restricted to publication in print
form on paper (e.g. books). The Instructor is also obligated to assist UNEX
and THEN in securing releases to all copyrighted material used in the
Instructor's course. And just as UNEX must use its best
efforts to cause the Instructor to sign the Instructor Agreement, so the
"Instructor shall use Instructor's best efforts to cause all guest lecturers
taking part in UNEX Classes taught by such Instructor to
execute agreements approved by UNEX and THEN that are consistent with the
balance of the provisions of Exhibit A." Finally, the Instructor is required
to execute any other documents consistent with the terms of the Instructor
Agreement, as requested by UNEX or THEN, and if the Instructor fails to do
so, "the Instructor shall be deemed to have appointed UNEX and/or THEN as
Instructor's irrevocable attorney-in-fact with full power of substitution
and delegation and with full and
complete right and authority . . . to perform such acts and take such
proceedings in the name of Instructor. . "

The Instructor Agreement, a formal written contract between employee and
employer in which employee rights are legally transferred to the employer,
was seen by the parties in 1994 as the way UNEX would secure the power and
authority required to comply with its Agreement with THEN, at the expense of
the Instructors. Today both parties contend that
such Instructor Agreements are not necessary. According to the terms of a
revised agreement, they argue, which has not yet been finalized, the actual
ownership of electronic courses would reside solely with UNEX while THEN
would merely have exclusive rights of distribution. And UNEX now maintains
that its ownership rights are automatic and would not
require any formal contract with their employees. As David Menninger, UCLA's
Associate Dean of Continuing Education and UCLA Extension,
explained to me in a letter in December, 1997, "since the focus of the
Extension/THEN relationship has shifted to Extension online courses, for
which the Regents of the University of California retain ownership, no such
instructor's agreement has ever been used, nor is any further need

It is not clear upon what legal basis Menninger asserts his claim
that the Regents of the University of California retain ownership,
given the traditional legal rights of the Instructors to these courses.
According to Kathy Whenmouth, technology transfer specialist in the
University of California's President's Office, the University does
not yet have any policy on the copyright of online course materials.
Clearly, the matter is far from settled. What exactly are the rights of
instructors and the Regents? Now that the UNEX/THEN Agreement has seen
thelight of day, it will no doubt become a focus of controversy. Is it
legal? Will it withstand a legal challenge? Whatever the ultimate legal
status of the Agreement,which would have to be determined in court,
this episode sheds much light upon the methods, intentions, and visions of
those involved in the commoditization and commercialization of
university instruction.

The second agreement, between America On Line (AOL) and UC
Berkeley (The Regents of the University of California) points in much the
same direction. Signed on July 26, 1995, this agreement, which also contains
a confidentiality clause, centers upon Berkeley's extension program, the
Center for Media and Independent Learning. Here the
arrangement from the outset entails only the licensing of course
distribution rights without any transfer of copyright from the
university to the company. According to the agreement, the University aims
to offer "electronic courses in a broad spectrum of disciplines (Arts and
Humanities, Business and Management, Computer Science,
Hazardous Materials Management, Natural Sciences, Social Sciences), for
credit or for professional development." Accordingly, the "University grants
AOL a non-exclusive, revocable, worldwide license to market,
license, distribute, and promote" these courses. In doing so, the
"University represents and warrants to AOL" that such offerings
"will not infringe on or violate any copyright, patent or any other
proprietary right of any third party. . . " Once again, as was the case with
the UCLA- THEN agreement, the University is representing to AOL that it
alone owns the course materials and that no third parties, including the
faculty who develop courses, have any rights to them.
In order to secure faculty compliance with this claim, the University has
drawn up a generic course development "letter of agreement" for instructors
to execute. In this document, which instructors are required to sign, the
University informs instructors that "The Regents of the University of
California will own the copyright to all materials you develop, in print or
other media, for use in this UC Extension course
. . . and we retain the right to continue offering the course should you
resign as instructor." By means of this contract the University obtains, and
the instructors abandon, ownership of all course materials. Instructors are
paid a modest "honorarium" for developing the course and abandoning their
rights, payable half on acceptance of the materials and half on actual
delivery of the course. Whereas AOL receives ten percent of all royalty
revenues, the instructors receive none.

The final example is possibly the most far-reaching, involving
the Denver-based company Real Education, Inc. (Real Ed) and the entire
University of Colorado. Real Education was founded in 1996 by CEO Rob
Helmick, an attorney and former general counsel for various universities who
specialized in education law and the "merger and acquisition of educational
institutions worldwide." In 1996 Helmick's law firm, Helmick and Associates
International, acquired Real Information Systems, one of the leading
worldwide web production companies in the U.S., and created Real Education,
Inc., "so that universities could easily outsource instruction." Real
Education has become a major player in the
outsourcing of university online instruction and currently has contracts
with some twenty universities and colleges throughout the United States,
including the University of Colorado, Northern Illinois University,
Rogers University, and the Colorado Community Colleges. The company
specializes in providing universities with all of the hardware,
software, internet links and technical support they need for online
course delivery, including assistance with course development. It is now
collaborating with Microsoft and Simon and Schuster to create a standard for
the industry. For its part, the University of Colorado has been in the
forefront of online education and recently won the Eddy Award of the
National Science Foundation as the "Number One Online University in the

After some preliminary collaboration, Real Ed and the University of Colorado
entered into a formal agreement on May 27, 1997. The
arrangement engages Real Ed to provide the technical means for online course
development and delivery but the University retains all copyright to course
material. According to the agreement, the "University, on behalf of its four
campuses, wishes to develop its online capability utilizing Real Ed's
Einstein Network Version 2.5 (or the latest version thereof) to create
University credit and non-credit courses for delivery in the United States
and abroad." As part of its obligations, Real Ed agrees to "oversee the
adaptation of existing distance-learning courses and collaborate with the
University's faculty and staff in the development of new courses" and to
"provide instructional design support to University faculty to assist in the
transfer of lectures to the
online format." However, according to the contract, "it is understood and
agreed that the relationship of University and Real Ed, with respect to all
course development, is that of author and editor, final approval and
ownership rights over University-developed material will vest in the
University. . . ." Once again, in making a deal with a private firm, the
University is explicitly identifying itself as the "author" of all course
materials having full "ownership rights."

Having made clear its proprietary claims vis a vis Real Ed, the
University has also made an effort to establish the contractual basis for
such claims vis a vis its faculty. The University has drawn up
an "Agreement for Development of Courses Between the Regents of the
University of Colorado and Faculty Course Developer" to be signed by all
faculty developing online courses. According to this agreement,

"Faculty acknowledges that the 'on-line course is deemed as a 'work made for
hire' within the meaning of the U.S. Copyright Act of 1976
and The Board of Regents of the University of Colorado shall own
exclusively and forever all rights thereto including derivative works." In
addition, "Faculty acknowledges and agrees that the 'on-line' course itself
may not be used in faculty consulting, in delivering lectures or
presentations to another academic institution, and may not be
duplicated or distributed to other individuals, academic institutions or
corporations without a written agreement and approval of the
University." In return for developing a typical three-credit course and
assigning copyright on all course materials to the University,
the faculty member receives one thousand dollars plus royalties of ten
percent of revenues up to $125,000 and fifteen percent thereafter. (Real Ed
receives five thousand dollars for each course developed plus one hundred
dollars per student.) At present, faculty involvement in online course
development is voluntary. However, according to the agreement with Real Ed,
the University has the power to designate which faculty will develop such
courses. According to Maureen Schlenker of the
University of Colorado at Denver who oversees "UC Online," departments might
require faculty to participate. No doubt untenured and part-time
instructors, those with the least job security and lowest pay, will most
likely be pressed into service. Marvin D. Loflin, dean of the college of
arts and sciences on the Denver campus, says he is considering
plans to hire non-professorial "teaching associates" to teach on-line
courses. "I'm prepared to make over the whole infrastructure of higher
education," he recently proclaimed to the Chronicle of Higher Education
(March 27, 1998, p. A30).

These agreements herald a new regime in higher education, one
which is taking hold of the nation's campuses at an accelerating rate: the
commoditization and commercialization of instruction. Extension programs are
the cutting edge for this new commercial ethos not only because of their
obvious involvement in distance learning but also
because they are typically staffed by the most vulnerable instructors,
people who have little job security and would thus be most ready to
comply with university demands. But as the arrangement between the
University of Colorado and Real Ed makes especially clear, the new
regime of online education extends far beyond university extension
programs and the most vulnerable. Indeed, it is now becoming
increasingly apparent that the real market for online courses will
be the on-campus population, as the experience of the University of
Colorado aleady indicates. And as UCLA's Instructional Enhancement
Initiative makes plain, faculty at all levels will ultimately be drawn into
the new regime, through encouragement or coercion. The implications of these
agreements therefore must be considered seriously by anyone who is using or
plans to use electronic means to enhance or deliver their courses. Who owns
the material you have placed on the Website or e-mail? Without a clear and
definitive assertion of copyright claims by faculty, the universities will
usurp such rights by default.

This is a matter of some urgency and it is especially pressing for those
faculty who work in a non-union workplace. Unionized faculty have at least
an organization and collective bargaining rights through which they might
fight for their rightful claims. But non-unionized faculty must invent other
means. One strategy might be for faculty to file for injunctions against
their universities to prevent them from entering into or complying with
agreements in which they make claim to copyright on course materials that
legally belong to faculty. These agreements might well be illegal, perhaps
involving fraud, and hence invalid.
Faculty might also investigate whether or not their university is
involved in the delivery of any courses without having first obtained a
signed copyright agreement with the instructor. Once again, this might well
involve an illegal infringement of copyright. But by whatever
means, collective bargaining, litigation, or direct action, faculty must
act, and act now, to preserve their rights.

University control over copyright is the sine qua non of the
Digital Diploma Mills. Without it the universities and their corporate
partners cannot proceed. As the CEO of Simon and Schuster, Jonathan
Newcomb, has stated, commercial online education presupposes "advances in
digital technology coupled with the protection of copyright
in cyberspace." (Emphasis added). Only by resisting and opposing university
control over copyright will faculty be able to preserve their legal rights,
their autonomy, their jobs, and, above all, the quality and integrity of
higher education. The fate of higher education is in their hands.

Historian David F. Noble teaches at York University in Toronto. He
is currently visiting professor at Harvey Mudd College in Claremont,
California and can be reached there at (909) 607-7699. [not verified]
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