IN THIS CHAPTER, WE explore the commodification of college and universities’ core academic function—education. We pursue our analysis through the study of institutional policies and practices surrounding educational materials (e.g., lecture notes, syllabi), curricula (e.g., classes, programs), and products (e.g., course management software). These educational materials are new economy products. They are increasingly being copyrighted by colleges and universities and marketed in ways that foreground their commercial rather than educational potential. This commodification of education offers important continuities with and contrasts to the commodification of research that we tracked in chapter 3.
Institutional claims to faculty’s copyrighted materials are different from institutional claims to patents. Historically, many faculty published and held copyright to scholarly and artistic materials, including instructional materials, which they created in the course of their employment at colleges and universities. In contrast, relatively few faculty patented, and by the 1950s, case law in federal courts was clear that universities, not faculty, owned discoveries professors made in the course of their employment (Chew 1992). Although recent scholarly attention to commercialization has focused primarily on patents, faculty who copyright have always engaged in commercial endeavor. They contracted with a variety of commercial publishing houses to produce and distribute their works. However, the stakes in scholarly publishing, with the exception of textbooks, were relatively small, and institutions were not interested in them. As our analysis of copyright policies demonstrates, this seems to be changing as increased use of information technology mediates instruction. Institutions are aggressively advancing claims to shares of faculty intellectual property in copyright, beginning with technology-mediated products. This is a sharp break with the past and potentially affects all faculty, regardless of field or institutional type.
Very often scholars and policy makers who address copyrighted educational materials concentrate on distance education. Although an important activity, it is located closer to the margins than to the center of higher education. Our analysis looks at distance education but also focuses on ways in which conventional, on-campus instruction is being mediated by technology. For example, a blackboard was once simply a classroom artifact on which professors wrote concepts and ideas, then erased them at the end of class. Now BlackBoard is a corporation that sells to colleges and universities platforms on which curricula are mounted and by which education is structured. It is one of several private companies with which hundreds of institutions contract to utilize a portal system for managing (and structuring) courses and integrating learning. Such a technological transformation, from slate and chalk to software, has profound implications for who owns the concepts and materials that a professor introduces in class. Usually, the greater professors’ use of institutions’ technological resources, the greater the claims colleges and universities are able to make on professors’ copyrightable educational materials.
Generally, we argue that universities and colleges (and in some cases, students) have initiated aggressive pursuit of external revenues based on instruction and curriculum. State system and institutional copyright policies were very often introduced after patent policies but are substantively different from them, following their own legal and product trajectories. We develop the theme that knowledge in the public domain is increasingly being treated as raw material that can be transformed into products sold for (potential) private profit or generate external revenues for colleges and universities. Before examining state system and institutional copyright polices, we offer a story about faculty, universities, and students that captures key developments about copyright in the academic capitalist knowledge/learning regime.
The Story of Class Notes
Who owns the copyright to notes taken in a professor’s class? Have the positions and claims of professors, universities, and private companies to the copyright of class notes changed over time? As professors have been encouraged by universities to put their syllabi, class notes, and other class materials on institutional websites, and as the on-line availability of class notes has escalated, a number of claimants to ownership of these intellectual products have emerged. Two court cases, the first in the late 1960s, the second in the mid-1990s, reveal a dramatic change in such claims and in the principles underlying them. In Williams v. Weisser (1969), the University of California, Los Angeles (UCLA) supported faculty members’ claims to copyright of class notes in the name of academic freedom, but in University of Florida v. KPB (1996) the university claimed proprietary rights (Xie and Zhou 2003).
In Williams v. Weisser, a UCLA anthropology professor sued under California’s common law of copyright, seeking an injunction against the owner of a private company (Class Notes) that had been selling his and other professors’ lecture notes to UCLA students. Williams claimed the company was “infringing on the copyright of his lectures” (Williams v. Weisser 1969). Weisser, speaking for Class Notes, claimed the professor did not own the notes because the university “owned the copyright to his lectures under the work for hire doctrine,” and, if the notes were the university’s, they belonged in the public domain where they were available for use by private companies (Borow 1998, 55n). Yet the university had not claimed ownership and did not have a copyright policy until 1975 (Lape 1992). Moreover, UCLA administrators had encouraged professors to protect their copyrights: a letter from the vice-chancellor stated, “It is emphasized that the common law copyright in a lecture is the property of the lecturer rather than of the University, and therefore any legal actions for the infringement of such right must be brought in the name of the aggrieved faculty member” (Williams v. Weisser 1969, n. 1). In the appellate case, the counsel for the University of California filed an amicus curiae brief in support of the trial court’s ruling that Professor Williams owned the copyright to his lecture notes. The university took a position consistent with that of the American Association of University Professors (AAUP), which holds that professors’ lectures are their property. The California Court of Appeals upheld the lower court ruling and “found that the student’s professor, and not the university the student attended, owned the common law copyright to the professor’s lectures” (Simon 1982–3, 28n). The reasoning of the court was grounded partly in the university’s explicit support of faculty ownership, partly in the view that the university lacked a motive for owning copyright to such materials, and partly in that such an arrangement would have unspecified “undesirable consequences” (Borow 1998, p. 154).
By contrast, in the KPB case in the 1990s, the University of Florida initiated legal action against a class notes company. As in the UCLA case, the firm (in this instance, KPB) paid students enrolled in classes to take notes, which the company repackaged and sold to other students. Professors are absent in the case, as are any professorial claims to copyright. Instead, the University of Florida claimed copyright infringement and sued KPB under the unfair competition provision of the Lanham Act, which covers interstate commerce. Florida argued that KPB was using trade practices that infringed on the university’s trademark by using university course numbers in its commercial guides, and it took the position that the Lanham Act applied because the university had many out-of-state students. In other words, the university, which was in the process of developing its own note-taking company, was advancing arguments as if it were a business whose trade was being compromised. Neither the U.S. District Court nor the U.S. Court of Appeals accepted these arguments. The district court was blunt in its ruling, in a sense reprimanding the University of Florida: “Well, there is no confusion here. There is no false advertising, there is nothing. You ought to try this thing on what the main theme is, and that is, is there a copyright here and did the defendant violate the copyright? All of this other junk—and it is junk—shouldn’t even be here” (University of Florida v. KPB Inc. 1996, n. 8).
Although Florida did not win, the case nonetheless suggests that in the 1990s institutions of higher learning took a very different stance toward copyright than they did in the late 1960s. Given the court’s ruling, one might read the moral of the story to be that universities should not pursue academic capitalism as if they were businesses. However, the court essentially invited Florida to try the case under copyright law. Had Florida followed that course, the case might have had a very different outcome.
We are not suggesting that the University of Florida’s stance has become the norm. For example, in response to controversy surrounding an on-line notes company, Kansas State University put a statement on its website indicating that, “Any close reproduction of a faculty member’s lecture, such as is constituted by good class notes, is a use of property which, at the very least, belongs to the faculty member, who because of copyright laws may distribute, produce and prepare derivative works from lectures” (Kistner 2000). UCLA, like some other universities, has adopted a policy against unauthorized notes companies. And many universities fought against the meteoric rise of on-line notes services such as Versity.com, Study24–7.com, CollegeClub.com, StudentU.com, and AllStudents.com, which popped up in the late 1990s (and which almost as quickly as a pop-up ad, disappeared from view).
However, UCLA, University of California (UC), Berkeley, and many other institutions have identified particular companies as “authorized” note dealers that are affiliated with the institutions. Berkeley has authorized a university-run notes service, Black Lightning. The manager of that service states that, “We’re not here to make money; we just want to make sure we provide the best notes and we don’t lose the university any money” (Holbrook 1999). Nevertheless, the notes service and company, like other university auxiliary units, are designed to run at a profit. They are quite literally in business and in direct competition with private businesses. After the UC regents filed a lawsuit against one such note-taking service, Research & Report Corporation (R&R), that same manager of Black Lightning noted that “Black Lightning used to lose business to R&R and other firms that operated at UC-Berkeley, but the regents’ lawsuit has apparently scared them all away” (Holbrook 2000). Like the two class-notes cases, this case offers an example of change in behavior with regard to copyright and educational products in some higher education institutions. In recent years, we see not-for-profit universities aggressively pursuing revenue from educational materials in ways that fundamentally alter their relations to faculty, students, and to the external marketplace.
The rise of class-notes businesses also points to a shift in the position of students in an academic capitalist knowledge/learning regime. When students sell their notes to corporations, they are both producers of educational materials and consumers of education. Some universities allow students to act as producers of marketable notes, particularly when the university runs the notetaking service, as is the case with the University of California at Berkeley’s Black Lightning service. However, at the University of Nebraska (2000), the university made it a student code of conduct violation for students to sell their lecture notes to on-line services. One university regent was quoted as saying, “The basic feeling is that intellectual property belongs to the university and to professors; it does not belong to students, and students should not sell it for money” (Daehn 2000). At issue is whether students can sell what they learn from their professors as they learn it or whether the professors or their institutions should be able to sell the notes. In either case, the idea of the student as apprentice imbibing learning to which a price has not been attached seems lost.
State System and Institutional Copyright Policies
In detailing the commodification of copyrightable educational products, we draw on various data sources. The principal sources are the intellectual property policies of colleges and universities. As with the patent policies analyzed in chapter 3, we examine the copyright policies of three institutions in each of six states: California, Florida, Missouri, New York, Texas, and Utah. We also draw on secondary materials to amplify our analyses of the six states, particularly the work of Lape (1992) and Packard (2002) on copyright.
Our analysis of the data is partly framed by the literature that informed our analysis of patent policies. To what extent is there a shift from a regime that foregrounds the public good to one that foregrounds the commercial utility of knowledge, a shift from Mertonian norms to academic capitalism? Again, as in chapter 3, we are also interested in the organizational dimensions of that shift. To what extent are connections between universities, the state, and the private marketplace being redefined such that hybrid structures emerge that combine the values, activities, and missions of these formerly separate domains?
Our exploration of copyright policies and the commodification of copyrightable educational works and courses is also framed by work that speaks to the changing relationship between professionals and managers, and to the emergence of new forms of professional work in the academy (Rhoades 1998a; Rhoades and Slaughter 1997; Rhoades and Sporn 2002).1 Whereas Jencks and Riesman (1968) spoke of an “academic revolution,” with faculty power in the academy becoming ascendant in the post–World War II era, Rhoades has argued that more recently a managerial revolution (Keller 1983) has reversed the role and fortunes of faculty, making them a more managed and stratified workforce. Such a change is evidenced in reduced professional autonomy and influence, and increased managerial control over various domains of professional work, including that of intellectual property. That shift is partly a function of new approaches in difficult financial times, in which central academic managers strategically restructure universities. That shift may also be a function of higher education’s move to the market, which was accompanied by a more corporate model in which university presidents became CEOs. Rhoades’s work raises the possibility that the two phenomena may be linked by market activity—to some degree, the increase in academic capitalism promotes the growth of managerial professionals. Thus, we look to the copyright policies for evidence of whether and to what extent there has been a shift in the balance of power between faculty and administrators, and whether this varies by institutional type.
The new organizational structures we identified in chapter 3 involve the interstitial emergence of new professions and new forms of professional work in the academy around the activities of patenting and technology transfer. In examining copyright policies we look for the similar patterns of expanded managerial capacity to engage markets—in this case, markets for educational materials. Although most scholarship on management and restructuring in higher education focuses on faculty and central administrators, we draw on work that studies the emergence of “managerial professionals” (Rhoades 1998a, 1998b; Rhoades and Sporn 2002). Such personnel are managerial in terms of their work lives (eleven-month contracts, nine to five in the office), hiring and supervision, and connection to the direction(s) of (central) academic administrators. Yet they are professional in terms of having various attributes typical of professions: they receive specialized education, possess technical bodies of knowledge, belong to professional associations, attend conferences, publish in journals, and adhere to particular codes of ethics. As a category, these support professionals (as they are designated in national data bases) constitute the growth area of professional employees in higher education. (The proportion of administrators has increased slightly; that of full-time faculty has declined.) We are interested in whether there is evidence of such professions emerging due to the development and marketing of copyrightable educational materials and courses and the expanding managerial capacity of colleges and universities.
The research questions we ask are: Is there evidence of a shift in knowledge/learning regimes from public good to academic capitalism? Is there evidence of a shift in the balance of professional autonomy and managerial control that suggests that faculty are increasingly managed professionals, and does this pattern vary by institutional sector? Is there evidence of changing organizational structures that suggest the emergence of new managerial professionals involved in producing copyrightable materials and courses? Is there evidence that they expand the managerial capacity of institutions?
Recency of Commodification of Education
Some scholars have argued that the commodification of education in colleges and universities represents a second wave of market activity following the earlier development of the commercialization of research (Noble 2001). According to this view, colleges and universities began to claim ownership of educational materials after the 1980 Bayh-Dole Act, which enabled universities to own the patents generated from federally supported research and encouraged institutions to begin actively pursuing patents and technology transfer. Investigation of copyright policies suggests that this sequencing of events is not accurate. Before 1980, many universities had developed intellectual property policies that advanced some institutional claim on the ownership of copyrighted works created by faculty. As early as 1967, a number of universities had developed such policies, including Case Western Reserve, Cornell, Harvard, MIT, Michigan State, New York University, and the Universities of California, Kentucky, and Miami (Lape 1992). In a sample of the copyright policies of sixty-nine leading research universities, Lape (1992) found that fifteen established such policies by the latter 1970s.
Nevertheless, the widespread commodification of education is more a phenomenon of the late 1980s and 1990s, occurring subsequent to the commercialization of research through patents. Peterson’s 1985 study, using a larger sample of universities than Lape, found that most had patent policies but did not have copyright policies. Most of the universities in Lape’s sample adopted policies in the latter 1980s. As Lape notes, “none of the policies collected in this study fails to claim at least some faculty works, which suggests that the purpose of adoption was not to maintain the. . . status quo, but rather to claim ownership of certain works for the university” (1992, p. 253).2
Colleges and universities’ efforts to claim copyrightable products created by faculty continued to expand in the 1990s. A follow-up of Lape’s sample revealed that all but one of the sixty-nine universities had adopted a policy by 2001 (Packard 2002). Moreover, Packard’s analysis found increased clarification of copyright ownership in ways that expanded and specified university claims to particular kinds of copyrighted materials. In 1991, twenty-five policies made explicit claims to materials produced by faculty specifically as work for hire; in 2001, thirty-seven institutions made such claims. Only six policies in 1991 made claims on works developed by faculty “within the scope of employment,” language drawn from the 1976 Copyright Act, which defined any such work as a work for hire, whereas, by 2001, eighteen policies included such a statement.
The general trend is toward increased institutional claims on the copyrightable products of faculty work. The basis of many institutions’ claim to ownership of faculty members’ intellectual products is that their employees utilize university resources in creating the property. Over time, language about use of resources is increasingly present in the policies. In 1991, forty-two universities had policies utilizing use or substantial use language. Sixteen “narrowed the scope of works claimed under this standard by excluding. . . commonly used resources such as libraries, offices,. . . classrooms, laboratories, and secretaries,” whereas twenty did so in 2001 (Packard 2002, p. 297). In 2001, fifty-seven had policies utilizing use or substantial use language; thirty-five of those required significant or substantial use for university ownership. Although Lape and Packard’s studies focused on research universities, a similar pattern can be found in other settings. Rhoades’s (1998a) analysis of a national sample of collective bargaining agreements found that 75 percent of the contracts with intellectual property provisions had language related to the use of institutional resources.
Aggressive and Expansive Institutional Claims
To explore the aggressiveness and expansiveness of institutional claims on employees’ copyrightable products, we turn to the copyright policies of the same eighteen institutions analyzed for patent policies in chapter 3.3 In some cases (e.g., University of Florida), patent and copyright are dealt with in the same intellectual property policy. In other cases (e.g., University of California), copyright is dealt with in a separate policy.
Our coding categories were similar to those utilized in analyzing patent policies. We coded for expansiveness with which copyrightable works were defined, personnel covered by the policies, shares of royalties—if any—allocated to creators, expanded managerial capacity related to copyright, and mentions of the public good. In all categories we were concerned with changes over time. Changes within the categories speak to whether institutions are becoming more aggressive in their claims and whether considerations of the public good feature at all.
Two new categories were added. First, we coded for the types of property that were covered. We wanted to understand how broadly copyrightable works were being defined. Second, we searched for particular language related to exceptions in ownership. We were particularly interested in “work for hire,” “within the scope of employment,” and “substantial use of institutional resources.” These phrases assert that institutions of higher education are able to treat faculty in the same way that corporations treat the professionals they employ: all intellectual and creative work belongs to the employer.
Type of Property
The copyright policies of the eighteen institutions reveal the broad sweep of intellectual products that were covered. Although there was considerable variation by institution and state in the timing of policy development, institutions covered quite a wide range of copyrightable products early on. For example, the 1984 policy of the University of Missouri–Columbia identified the following educational materials: video recordings, study guides, tests, syllabi, bibliographies, texts, films, film strips, charts, transparencies, other visual aids, programmed instructional materials, live video and audio broadcasts, and computer software including program, program description, and documentation-integrated circuit and data bases. In other words, the University of Missouri claimed educational materials, not creative and scholarly works. The policy did “not affect the traditionally accepted practice that faculty members have personal ownership of books, workbooks, study guides and similar materials which were not directly commissioned by the University and the preparation of which were not supported by any substantial University resources” (University of Missouri–Columbia 1984). By contrast, the University of Miami’s copyright policy as early as 1976 included books, manuscripts, television or motion picture scripts or films, educational material, or other copyrightable work, claiming a share of faculty’s creative and scholarly work. The City University of New York (CUNY) 1986 policy included writings, audiovisual films, slides, tapes, artistic works, instructional aids, computer programs, and all other copyrightable works.
Over time, there is no case in which the intellectual products covered in the policies become less restrictive. Instead, the most comprehensive coverage is found in the most recent policies, providing evidence of institutions’ increasingly expansive claims to copyrightable works. As information technology advanced and was integrated with instruction, many institutions understood that policies regulating such technology would determine ownership of copyright. For example, the University of Florida’s 1988 policy refers to instructional technology: “The State University System of Florida recognizes the increasing use of new technology, such as videotapes and computer software, to support teaching and learning and to enhance the fundamental relationship between employee and student. In order that this technology be used to the maximum mutual benefit of the university and the employee, the State University System shall develop written [copyright] policies, subject to consultation with the UFF [the United Faculty of Florida, the faculty union], that provide for such use” (State University System of Florida 1988).
Personnel Coverage
As with patent policies, the categories of coverage in copyright policies also expanded over time. At present, both sorts of policies cover not only faculty (sometimes part-time faculty and employees are specified, as in the University of Florida policy) but also a wide range of other categories of people: employees generally as well as students, graduate students, postdoctoral fellows, and nonemployees who participate in research projects. Employees can be a very broad category, as in the policy of San Diego State University, which defines employee as including “full-time and part-time faculty, classified staff, student employees, appointed personnel, graduate assistants and teaching associates, persons with ‘no salary’ appointments, and shall also include visiting faculty and academic professionals who develop intellectual property using University or auxiliary resources and facilities unless there is an agreement providing otherwise” (1999). There are exceptions to this pattern of expanded coverage. For example, the copyright and computer software policy of New York University (NYU) covers only faculty.
There are also cases in which policies are extraordinarily expansive in regard to students. For example, Brigham Young University’s (BYU) policy extends beyond student employees.
Students using substantial university resources or those employed by the university will be treated in the same manner as similarly situated university personnel. However, any student not employed by the university but engaging in research or development of intellectual property under the supervision and direction of a faculty member in connection with a program or activity subject to this policy shall have no ownership interest in the resulting property but may be eligible to participate in the income distribution. Faculty using such volunteer, non-employed students in their scholarly work projects should have the students sign a “Student Assignment of Ownership and Nondisclosure Agreement” form, available from the Intellectual Property Office. (2002)
In this policy students are essentially employees when faculty supervise them. Yet in the same state, the University of Utah’s policy holds that “students are the Owners of the copyright of Works for which academic credit is received, including theses, dissertations, scholarly publications, texts, pedagogical materials or other materials” (2001).
As the cases of NYU and BYU suggest, we found no particular pattern by institutional type in policy coverage. Private universities were at both ends of the spectrum as were public colleges and universities. The only pattern that really stands out is that in all types of institutions copyright policies are expansive, covering not only faculty members but also many other institutional employees as well as students.
Extended Institutional Claims to Ownership
Historically, faculty have had the sole claim within their institutions to the copyrightable educational products of their labor, principally in the form of books and articles. When faculty publish they generally sign these copyrights over to publishing houses in exchange for royalties. Given this history, grounded in practice and in copyright common law in the courts, institutions generally have advanced a claim to faculty’s copyrightable intellectual products only under certain conditions. Two of these conditions are embedded in language stemming from copyright legislation, such as the 1976 Copyright Act. One is the phrase “work for hire,” which means the institution hired the employee specifically to produce certain copyrightable materials, as when a publisher hires a textbook writer. In using such language, universities are essentially saying that faculty are no different than corporate employees. This language reverses universities’ traditional position with regard to faculty’s copyrightable intellectual property and enables colleges and universities to claim the material created by faculty. Another often-used phrase is “within the scope of employment,” which means that professionals are employed to produce copyrightable works along with performing other duties. Generally, this language is similar to that which corporations use to claim the copyrightable work of their full-time employees. A third phrase is “use of institutional resources” or “substantial use of institutional resources.” As with patents, universities and colleges made the case that faculty use of institutional resources entitled institutional claims to intellectual property. Ironically, the institutional resources used by copyrighting faculty were often information technologies that patenting faculty may have developed and that the institution owned.
In their study of research universities, Lape (1992) and Packard (2002) noted that an increased number of policies have “work for hire” and “within the scope of employment” language, giving institutions a broader claim to property. Here we illustrate the ways in which some universities in our sample have utilized that language. Consider the University of Utah. In 1970, institutional policy held that faculty owned almost all of their copyrighted material, with one important exception. “Notwithstanding any other university policy provision, unless other arrangements are made in writing, all rights to copyrightable material (except material which is placed on video tape using university facilities, supplies and/or equipment) and all financial and other benefits accruing by reason of said copyrightable material shall be reserved to the author, even though employed by the university.” The university only claimed rights to ownership when there was a specific contract between the university and a third party, or when the author was specifically hired to do the work. (In the case of videotapes, the university also claimed ownership when its facilities, supplies, and/or equipment had been used, a point we subsequently explore in discussing “substantial use” language.) In the 2001 revised policy, all faculty intellectual work is declared work for hire: “Works created by University staff and student employees within the scope of their University employment are considered to be works made for hire, and thus are Works as to which the University is the Owner and controls all legal rights in the work.” The university agrees to transfer rights to faculty in some cases, such as in the case of “traditional scholarly work,” but it claims ownership if materials are produced with the “substantial use” of university resources (2001).
The introduction of work for hire and within the scope of employment language is important in relation not only to faculty but also to other employees. As greater numbers of managerial professionals are employed within colleges and universities, and as they become more involved in “production” activities such as the development of copyrightable educational products, institutions expand their policies to cover more personnel and they define these personnel’s intellectual products as works for hire. For example, the University of Missouri–Columbia’s policy indicates that “Educational materials are University-sponsored if... the production of the materials is a specific responsibility of the position for which the employee is hired” (2002). The intellectual products of any managerial professional hired to develop educational materials are within the scope of their employment and become the property of the employing institution. The policy of the University of North Texas is even more explicit: “Electronically published course materials created jointly by faculty authors and others, whose contributions would be works for hire, will be jointly owned by the faculty author and the University” (2000). In short, managerial professionals have no property rights, and by virtue of their involvement in the educational production process, the university enhances its ownership claims.
In contrast, faculty work for hire is generally defined fairly narrowly. For example, at the University of Miami it refers only to “a project assigned to members of the faculty” which will be owned by the institution “only if so specified at the time of assignment by an instrument of specific detail and agreement.” Similarly, in the State University of New York (SUNY) policy, “[faculty] Work for Hire shall mean work done. . . under campus consulting, extra service or technical assistance arrangements either through contract, consultancy or purchase order, but not within the Scope of Employment” (1998).
More significant by way of establishing institutional claims to ownership of copyrightable material created by faculty is language about the use of institutional resources. Most policies in the eighteen institutions we studied had such language. Generally, policies that favored faculty and other employees were found in less prestigious institutions and policies more favorable to institutional claims were found in the more prestigious public and/or private universities. Institutions in four states (Missouri, New York, Texas, and California) in our six-state sample follow such a pattern.
In Missouri, the policy most favorable to faculty ownership of copyrightable materials was that of Southeast Missouri State (1983). Its policy referred to “University support or sponsorship,” but such support only required institutional cost recovery; copyright ownership remained in the hands of creators, including all employees and students. By contrast, the University of Missouri–Columbia indicates that “use of substantial University resources” necessitates a written agreement about ownership, and in the absence of such an agreement “the University may, in its discretion, claim copyright ownership and/or a share of royalties” (2002). Similarly, in the Washington University policy, “significant use of University resources” is a basis for the institution owning the copyright (1998a).
In New York, CUNY’s policy is the most favorable to faculty ownership of copyrightable works. Its policy accords ownership to the author, with the university receiving a share of the revenues “where the University has made significant contributions of resources” (1985). By contrast, the SUNY policy establishes the university’s claim to copyrightable works under many conditions, including when the work was “developed through the use of facilities, funds, or personnel of the University of the Research Foundation.” NYU has two policies, one for copyrights (which applies to lecture notes, manuscripts, and other writings), and one for computer software copyright. Although the copyright policy awards ownership to faculty members, the computer software policy advances university claims to ownership in several conditions, including “when there has been substantial use of University resources earmarked specifically for computer software development” and “when the computer software has been developed with the substantial assistance of other University personnel, including, for example, supported graduate or undergraduate students” (1988).
The University of North Texas’s policy highly favors faculty. It holds that “in all cases except work made for hire, the faculty member retains the ownership and copyright of the work as well as the ability to market the work commercially” (2000). The policy then goes on to clarify, “Faculty members thus normally hold copyright in electronically published materials they create on their own initiative”. The policy provides scenarios that flesh out categories that affect ownership, including when the university provides a grant to purchase certain equipment, pays the faculty member in the summer to develop the product, and “funds production time in the Center for Media Production.” The faculty member owns the property and can market it outside the institution, although the university retains a “non-exclusive commercial license to market the course outside the University.” The policy of the University of Texas at Austin is also quite favorable to faculty, asserting no ownership claims to copyrightable works even when there has been substantial use of university resources, although when substantial use occurs, the institution has claims in regard to royalties and rights to nonprofit educational use. Rice’s intellectual property policy also gives faculty ownership of copyrightable materials, but its computer software policy indicates that “rights to software developed by a University researcher shall vest in the University, when there was any support of the developer’s efforts through the use of University funds, facilities, personnel, or other resources” (1999). Rice’s policy indicates that for copyrightable educational courseware the copyright policy applies, giving ownership to faculty; however, it also states that this policy is under review for “revision and modernization,” suggesting that the institution may seek to extend its ownership claims.
The policy of San Diego State University (1999) grants considerable ownership claims to faculty. In cases of “partial institutional support,” faculty retain all or partial ownership. Similarly, the policy of the University of California (2002b) gives ownership to faculty; even when materials are “created with the use of Exceptional University Resources,” they belong jointly to the creator and the university. However, Stanford’s policy asserts institutional ownership of copyrightable materials that are created with “significant use of services of University non-faculty employees or University resources.” It also states that “courses taught and software developed for teaching at Stanford belong to Stanford. Any courses which are videotaped or recorded using any other media are Stanford property” (1998).
The limited pattern of more aggressive institutional claims being found in more elite versus less prestigious institutions is consistent with Rhoades’s (1998a) study of collective bargaining agreements. Among unionized institutions, Rhoades found that provisions according faculty ownership of intellectual property were more likely in two-year rather than four-year institutions. Although our sample is too small to be conclusive, pursuing the differences in copyright policies by type may repay investigation. One of the many questions to answer is whether copyright income varies by institutional type and whether less income makes institutional policies more generous to faculty, other employees, and students.4
However, this pattern does not hold for all the states we studied. The University of South Florida’s policy (1997) makes extensive claims for the institution’s ownership of copyrightable works. Although the university does “not assert rights to books, articles, and similar works,” the policy states that, “an invention or work made in the course of University-supported effort is the property of the University.” By contrast, the University of Miami asserts ownership to copyright only in those cases where the product is a work for hire. And in Utah, extensive institutional ownership claims are evident in the policies of all three institutions we studied, though most so in the case of BYU. Utah State’s policy (2002) reads that if “significant university resources” are used in creating the work, then the university can negotiate an ownership claim. The University of Utah’s policy (2001), which defines all works as works for hire, “preserves the practice of allowing faculty to own the copyrights to traditional scholarly works, and at the same time seeks to protect the interests of the university in works that are created with the substantial use of university resources” (emphasis added). The policy defines “substantial use” and “significant University funding” as follows: faculty can use the library, office equipment, computers, and support staff, but they cannot use special computing services and production facilities without ceding ownership of the material. BYU’s policy (2002) even more narrowly defines substantial use of resources, including “secretarial help” and software or office supplies “purchased specifically for a creative work,” and it stipulates that “use of photocopying equipment, long distance telephone costs, postage, faxes, etc., specifically for a creative work may not exceed incidental use” In other words, a few universities are defining “substantial use” to be almost anything associated with the job.
Over time, then, institutions have significantly extended claims to ownership of faculty-, employee-, and student-created copyrightable works. That is evident in the use of language such as “work for hire” and “within the scope of employment.” It is also evident in wording regarding substantial use of university resources; such language is found in most policies, and its conditions apply to most situations in which copyrightable materials with commercial potential would be created.
Royalty Shares
Royalties on copyrighted materials accorded to faculty are generous. Again, however, there are considerable variations in the size of the shares and in the ways that they are calculated, with less prestigious institutions’ policies offering more favorable shares in four of the six states. At CUNY shares are calculated, as in most policies, as net royalties, the monies generated over and above the costs of production: the shares are 75 percent for faculty when works are created through “university assisted individual effort” and 25 percent for works created through “university supported effort.” By contrast, at SUNY faculty receive 40 percent of gross royalties if work was created “through the use of University resources.” In Missouri, the shares are 55 percent of net revenue at Southeast Missouri State, 50 percent at University of Missouri–Columbia, and 45 percent of net income at Washington University. The creator’s share is 50 percent at the University of North Texas and the University of Texas–Austin; Rice’s policy accords only 37.5 percent to the developer. In California, the creator’s share is 50 percent at San Diego State University and 33 percent at Stanford.
Some policies are quite complicated, providing shares for parties other than the faculty member and the institution, and linking different shares at different levels of net income. Royalty shares may be allocated to the university’s entrepreneurial unit (27.5% to the Creative Works Office at BYU), graduate education (18.5% at Rice University), the creator’s college (27.5% at BYU), department (one-third at the University of Miami), or research program. The University of Utah’s policy provides differentiated shares depending on the amount of revenue in question: the creator’s share is 40 percent of the first $20,000, 35 percent of the next $20,000, and 30 percent of any net revenues beyond that. BYU’s policy has a clause stating that “when total income, before distribution, exceeds one million dollars from any single intellectual property in any fiscal year, an administrative review of this source of income will be activated. The academic vice-president and the administrative vice-president shall have discretion to evaluate the allocation of the funds in excess of this threshold to the college and to Intellectual Property Services” (2002). In short, the institution takes a greater share as the amounts become larger and seeks to capitalize on any major profits generated by copyrightable works.
In contrast to patents or other copyright provisions, there is no general policy pattern over time in regard to the distribution of royalties. For example, University of Florida faculty shares decreased over time, whereas the policies of Utah State increased shares to faculty. In sum, there is variation among institutions on copyright royalties, and less prestigious public universities tend to allocate more to faculty than do elite public and private ones. Still, faculty shares at all institutions are generous. However, none of the institutions give royalty shares to the growing numbers of nonfaculty employees involved in creating educational materials.
Public Good
Amid this pursuit of academic capitalism, to what extent does any mention of the public good appear, and how is that public good defined? In answering this question we should keep in mind the historic academic tradition with regard to certain categories of copyrightable materials (books, articles, and creative works) which were commercialized by faculty who received royalties from private publishing companies that produced and sold their books. What is at issue in institutional policies is whether that tradition will be continued, to what extent institutions are asserting claims to other sorts of educational materials, and the way in which these new claims intersect with some conception of the public good.
In copyright policies the public good is mentioned more than it is defined. Typical cursory statements are: “The following policy is intended to foster the traditional mission of a University to encourage the creation, preservation, and dissemination of knowledge” (University of Missouri–Columbia 2002); and “The University is entrusted with the responsibility of administering its own intellectual property in the best interests of the public” (Utah State University 2002). Of what that public interest consists, or the mechanisms through which it will be protected, are not elaborated. All that can be determined from most policies is that the public interest is served by the creation and widespread dissemination of intellectual products.
Although the policies of BYU, Stanford, and the University of Miami make no real mention of public interest, those of three other private universities do. These policies clarify a pattern evident in most—they express values of the competing knowledge regimes of public good and academic capitalism. Washington University’s policy has a phrase about advancing the public good, but it also has language encouraging academic capitalism: “In other cases, to serve the common good, it will be necessary to secure protection of University intellectual property to encourage commerce and industry to invest their resources to develop and distribute products and processes for public use” (1998a). Similarly, the University of Florida’s policy simultaneously invokes a public good conception—“The University of Florida believes that a university has an obligation to serve the public interest by insuring that such intellectual property is appropriately developed”—and one of academic capitalism: “Adequate recognition of and incentive to potential investors through the sharing of the financial benefits resulting from the transfer and development of patentable inventions and other marketable forms of intellectual property encourages the creation of such intellectual property. At the same time, the University’s share in the financial benefits provides funds for further research at the University” (1993a). The university’s interest is conflated with the public interest.
However, a few policies make clear that there are significant public interest considerations at stake. NYU’s computer software policy lists several public interest considerations, from conflict of interest to the institution’s own commercial interests. “From time to time there arise cases where ownership by faculty members of copyright in computer software may not be consistent with certain of the University’s basic commitments, such as protecting academic freedom through promoting the publication and distribution of research and scholarship, protecting the respective interests of participants in large, long term projects, protecting against undue commercial influences on academic priorities, ensuring proper use of the University’s resources, and protecting the University’s legitimate commercial interests” (1988). Such phrasing points to the potential of commodification to compromise academic values. Similar concerns are evident in Rice’s policy, which includes as objectives of its patent and software policy: “To create an environment that encourages and expedites the dissemination of the discoveries, creations, and new knowledge generated by the faculty and other members of the campus community for the ‘greatest public benefit’. . . To encourage research and scholarship without regard to potential gains from royalties or other such income” (1999).
What we see in the recent commodification of educational materials is a shift in the stance of colleges and universities. In earlier times, the principal function of colleges and universities lay elsewhere. As Southeast Missouri State’s patent and copyright policy, alone among the eighteen universities we studied, indicates, “it should be recognized that the objectives of the University do not encompass the invention or development of a product or process for commercial use. Patentable inventions, processes, etc., will instead be a by-product of the usual intellectual endeavors of the faculty and staff of the University” (1983). Commercial activity is separate from and subordinate to the institution’s principal educational and research functions. Yet this is an exception that points to the rule. Generally, the public interest receives relatively cursory mention in copyright policies, and it coexists with an explicit narrative about ensuring adequate incentives for creators and reasonable returns for institutions (and, therefore, for the state in the case of public institutions) given their investment in the commodification of copyrightable educational materials.
Development of Managerial Capacity
Intellectual property policies point to organizational developments in universities that strengthen the academic capitalist knowledge/learning regime. In this section we explore the extent to which copyright policies provide evidence of an expanding managerial capacity within colleges and universities to pursue academic capitalism in the realm of copyrightable educational materials. Are such in-house facilities the same as those developed for patenting and technology transfer?
The copyright and computer software policies of universities refer to facilities that are explicitly geared to the production and marketing of copyrightable materials. These facilities are markers of institutional pursuit of academic capitalism in two regards. First, their existence justifies institutions’ extended claims to ownership and revenue from copyrightable materials. Second, their existence speaks to the investment institutions are making in the development and marketing of such materials. For instance, BYU’s copyright policy claims anything done “within the scope of employment” as a “work for hire” that is owned by the university. Although the university “relinquishes ownership rights to the developers of creative works when ‘nominal’ use of university resources is involved in the production of the intellectual property,” it retains ownership when “substantial” resources are used. Substantial use is defined as “use of university resources beyond those allocated to the faculty in support of their academic work within their respective department or college.” That includes use of labs, studios, equipment production, and specialized computing facilities. Any use of expertise in support units financed by the university (e.g., Center for Instructional Design) is substantial use. In fact, the policy states that high-tech course materials “will usually be developed by the Center for Instructional Design and will be owned and administered by the university even though a college or department may have originated the course concept and participated in its development” (2002). The use of institutional internal facilities justifies the university’s ownership claims, even when the academic creators initiate the concept and participate in its development. Moreover, the institution’s production units, which are independent of faculty control and which hire managerial professionals, may develop materials without faculty initiative or participation.
BYU’s case enables us to see how far some institutions have gone in developing internal managerial and organizational capacity to commodify educational materials. BYU’s policy appears to protect the public interest and discourage commodification: “The university does not generally engage in product manufacturing, company support functions, customer service, technology maintenance, or work for hire for the private sector. In general, it is not appropriate for academic units to produce, market, or sell products or to establish organizations or companies to do so”. However, the policy offers an alternative path of action that points to the university’s internal capacity to commodify education. “The Technology Transfer and Creative Works Offices have the responsibility to license or sell the technology or work; or they may sell university developed products to end users when sales and support do not interfere with the normal activities of campus personnel, and when the sale is consistent with the educational mission of the university”. If they “deem” the action “consistent with the educational mission and academic purposes of the university,” they can approve the creation of an “enterprise center” that will pursue such activity (2002).
BYU’s elaboration of managerial and organizational capacity is at one end of the continuum. It has a center for instructional design for producing copyrightable works, a creative works office to oversee “the business aspects of commercializing intellectual properties and [managing] copyright issues,” and the potential of enterprise centers that will further develop and market copyrightable educational materials. The policies of other institutions are not so elaborated but point to some development of managerial capacity for the pursuit of academic capitalism in the realm of educational materials. The infrastructure for copyright is not so well developed as for patenting; indeed, the administration of copyrightable works is often handled by the same office that oversees patenting, or by a research foundation (in the cases of CUNY, SUNY, and the University of South Florida). Similarly, in most copyright policies, there is no clear identification of production facilities for copyrightable works. Yet there are references from which one can infer that such production facilities and personnel exist. For instance, those policies, like Utah State’s, which refer to “specifically commissioned” works suggest that there is some university investment in such projects. In some cases, as in the University of Utah’s policy, there is simply a generic reference to “production facilities” as one factor determining whether “substantial use” of university resources was involved in creating the property, which suggests that such an infrastructure has been established. The University of Missouri’s policy indicates that the university owns the materials if they were “created by employees ... [as] a specific responsibility of the position for which the employee is hired” (2002). That suggests the institution is hiring such employees with such responsibilities. And San Diego State’s policy refers to auxiliary shops, including print shops, photographic services, and recording studios.
Overall, it is evident that universities are developing internal, managerial capacity to create and commodify copyrightable educational materials. Such capacity and investment has not only been used to justify more aggressive institutional ownership claims to such products, but also it enables organizational production of materials independent of faculty. In contrast to patenting and technology transfer, colleges and universities can develop and produce copyrightable educational materials without the direct involvement of full-time faculty. Staff who are hired to participate in these production and commercialization activities, whether they are full-time managerial professionals or part-time faculty, generally have no claims to the proceeds of their labors, for their directed labor is regarded as a work for hire, entirely within the scope of their employment.
Under many of the copyright policies we have considered, colleges and universities could hire managerial professionals to develop curricular materials and part-time faculty to deliver them, and the institution would own the courses. Community colleges—for example, Rio Salado—are already engaged in this pattern of production of educational materials. Conceivably, four-year colleges and universities could do the same with regard to high-volume courses, for example, general education courses.
Overall, our analysis of state system and institutional policies demonstrates that there has been a shift from a knowledge/learning regime that foregrounds the public good to one that foregrounds the commercial utility of knowledge, which we call the academic capitalist knowledge/learning regime. This shift is evidenced by the growing numbers of institutions that have copyright policies, by the expansion of the institutional population covered by the policies, and by the increased claims of the institutions to property, especially when production is covered by work for hire or within the scope of employment language, or involves substantial use of college or university resources. Institutional claims to copyright seem to be clearest when intellectual property is mediated by information technology owned by colleges and universities. The use of information technology often calls for increased numbers of managerial or support professionals to operate, repair, handle, and conceptualize educational materials and curricula. With faculty, managerial professionals coproduce commercial educational products for the classroom and the new economy. Because managerial professionals report to administrators rather than to the faculty as a collectivity, whether in departments or senates, there is a subtle shift toward expanded administrative authority. We think this shift may intensify when managerial professionals organize around their interests and successfully engage the market.
College and University Partnerships with Educational Corporations
The aggressiveness of colleges and universities in pursuing potential revenues from faculty’s copyrighted works is evident in more than institutional policies. It is also evident in a range of activities and initiatives that involve profit taking from the educational materials, courses, and programs developed by faculty, staff, and students. Unfortunately, there is no national database on the revenues generated from such activities; indeed, many of these activities are not categorized in ways that are captured in any data sets. Consequently, we draw on selected examples from the literature to explore emerging institutional practices.
In the context of the new information, service-based economy, various partnerships between higher education institutions and businesses have emerged. Many of these surround on-line education. One form of joint venture consists of for-profit arms of colleges and universities. Two prominent examples are Columbia University’s Fathom, a for-profit distance education consortium, and the University of Maryland University College, a for-profit distance education spin-off of the University of Maryland system.
Fathom was essentially a packaging and distribution system for member institutions to distribute/sell web-based courses and seminars. The membership included the University of Chicago, the University of Michigan system, the London School of Economics and Political Science, Cambridge University Press, the American Film Institute, RAND, the New York Public Library, and the Woods Hole Oceanographic Institution. Member institutions represented an extraordinarily diverse, wide-ranging, and complex network of public and private sector organizations. Yet, after only two years of operation, Columbia University announced that it was shutting down Fathom (Carlson 2003). Columbia invested $14.9 million in the venture in 2001, and Fathom earned only $700,000 from membership fees and sales revenues. Its students numbered in the hundreds. Remarkably, in the face of this disastrous loss of revenue, the CEO of Fathom, Ann Kirschner, spoke positively of the enterprise: “I think we’re going out on a high; We’ve outlasted nearly everybody” (Carlson 2003, p. 30). Similar ventures at NYU and Temple University have also closed. Academic capitalism can fail, though the universities that initiated these ventures live on.
The University of Maryland’s University College (UMUC) offers a story with a different ending and an interesting twist in regard to the source of profits from academic capitalism. UMUC was created with private-sector investment, although in recent years it has received tens of millions of dollars in state appropriations—about $10 million per year in 1999 and 2000, $15 million in 2001, and $20 million in 2002 (Heeger 2001). Its greatest success has been in securing military funding to provide education to service men and women around the globe. Most recently, UMUC was awarded a Tri-Services Education contract from the U.S. Army, at a value of $350 million over ten years. By its own accounts, members of the military accounted for 47,000 enrollments in 2002, of a total of 87,000 for all of UMUC (UMUC 2003a, 2003b). UMUC, although designed as a for-profit venture based on private monies, has succeeded by tapping into state funds from Maryland and federal contracts with the military.
UMUC is not the only institution tapping into the military market. David Noble (2001) points out in a chapter titled “Calling the Cavalry: Defense Dollars and the Future of Higher Education” that the Army University Access On-line program, known as eArmyU (see http://earmyu.com), has various partners, including IBM, the Council on Academic Management (supported by the Sloan Foundation, and with representatives from the League for Innovation, a group of community colleges, the Western Interstate Commission of the States, and the American Distance Education Consortium), and nineteen institutions of higher education, five of which are community colleges. The program’s mission is to “increase retention by allowing soldiers to earn credits, degrees and certificates at low or no cost to them while they serve on active duty ... [and to] develop educated, technology-savvy soldiers who will succeed in the missions and on the battlefields of the 21st century” (http://earmyu.com). According to eArmyU, 250,000 students have taken more than 3,000 courses, but only 49 have graduated, mostly with associate degrees and certificates. As of March 2003, three had earned bachelor’s degrees.
The networks involved in academic capitalism in the new economy are extraordinarily complex. In exploring business/higher education connections, most scholars have focused on research activities and on universities (Bowie 1994; Etzkowitz, Webster, and Healey 1998). Yet the commodification of education involves a wider range of higher education institutions. These networks extend beyond colleges and universities to include various consortia and professional and institutional associations (e.g., Educause and the League for Innovation) that intermediate among private, nonprofit, and for-profit sectors.
One other example of aggressive pursuit of profit in the information economy is the rise and rapid demise of on-line class notes companies. We opened with a story about class notes. We conclude our discussion of educational products, academic capitalism, and the new economy by noting how students figure in for-profit ventures that involve higher education. Students started some online notes companies, such as Net Notes Media. Students are also employees of these on-line companies, or independent contractors, selling their services while they are enrolled in the same classes for which they are posting their notes. In the postindustrial (and postmodern) world, students have multiple identities: they are not just customers but also producers and owners of knowledge, collectively as well as individually. For example, the Associated Students of the University of Idaho considered forming a partnership with Versity.com, a private corporation, which later folded (Henke 2000). When Versity.com was no longer available to Idaho students, the ASUI voted to allocate monies to reopen its lecture-notes operation.
The class-notes cases highlight the consumption emphasis of the new economy in higher education. In the context of a service-based economy, class notes are not simply educational supplements provided by institutions to enhance learning but Internet-based consumables valued for the convenience they afford students to asynchronously attend class. Simultaneously, they are a knowledge-based product that students themselves can sell in the academic marketplace. In an academic capitalist knowledge/learning regime, students too become academic capitalists, sometimes competing with for-profit arms of the very institutions they attend.
Conclusion
Consideration of copyright policies in colleges and universities illustrates the degree to which knowledge is now conceived of as raw material that can be legally protected and packaged as products, processes, and services to be sold on the open market. Although books, articles, and creative works are affected by the new policies, institutions are likely more interested in software, courseware, and other instructional materials because these have larger markets. The advent of digitized information technologies, which created new horizons for online education, greatly expanded these markets.
The copyright policies show colleges and universities involved in new circuits of knowledge. Rather than appealing to limited scholarly audiences for books, monographs, and journals, institutions—whether public or private, research universities or community colleges—are starting ventures like Fathom and UMUC, which involve the use of copyrighted instructional materials in broad markets for education. How such materials will be evaluated and judged, and who will make these judgments, is not yet clear.
At a few institutions—BYU, for example—interstitial organizations such as its Creative Works Office have emerged to handle copyright policies. The Creative Works Office is aligned with the Center for Instructional Design, underlining the close connection between copyright policies and broad markets for digitized courseware and instructional materials. However, at many institutions, technology transfer offices, sometimes expanded into intellectual property offices, have been responsible for copyrights. The degree to which managerial capacity to handle market negotiations involving copyrighted intellectual property has expanded is not clear. Copyright policies, as well as the products, processes, and services covered by them, are relatively new. If they follow the same trajectory as patent policies, we should expect the interstitial emergence of separate copyright offices. So too, we should expect increased managerial capacity, with a corresponding complement of intellectual property/copyright managerial professionals to handle articulation of these products, processes, and services with the new economy.
Although copyright offices are not yet widely established, other organizations that deal with copyright in educational products have emerged interstitially. These are university organizations or offices that head distance education projects or for-profit educational arms, such as Columbia’s Fathom and University of Maryland’s UMUC. These organizations bring business practices and procedures into universities, although they are often removed from collective faculty authority. They create precedents and models for other market-oriented ventures. Regardless of whether they succeed or fail, they very often align colleges and universities with corporations dealing with educational products in the new economy.
Frequently, the distance education projects or for-profit arms are part of networks that intermediate among the public, private, and for-profit sectors that connect the new circuits of knowledge. Many on-line, distance education ventures are run through such networks, as we described with Columbia’s Fathom. Another example is Knowledge Universe, an enterprise chaired by Michael Milken that is self-described as “the parent of a diverse group of operating companies with a common theme of building human capital by helping individuals and businesses to realize their full potential” (Knowledge Universe 2003). Among the companies in the Knowledge Universe group is UNext, which has affiliations with Carnegie-Mellon University, Columbia Business School, the London School of Economics and Political Science, Stanford University, and the University of Chicago Graduate School of Business through its on-line provider Cardean University (UNext 2003). Ironically, colleges and universities often see for-profits as competing with them, yet a number of the for-profits involved in distance education and on-line universities could not operate without college and university partners, which offer highly skilled, relatively low-cost content providers (Schiller 1998). Indeed, the line between public, private, and for-profit institutions is hard to draw in the case of for-profit arms of institutions of higher learning. Perhaps the common line that connects all of them is that they are able to ask (nontraditional) segments of the public to pay more for educational materials and curricula.
Although copyright policies parallel patent policies in some regards—for example, making the use of faculty time and institutional resources the basis of claims to institutional ownership—in other regards they differ—for example, faculty who copyright rather than patent are granted much more generous royalties. Because copyright policies potentially affect all faculty, they are likely to be more contested than patent policies.