Davis Faculty Association

As an Academic Senate member, you probably received a recent memo signed by Jeffery Gibeling (UCD Academic Senate Chair) and Janet Hamilton (Vice Chancellor – Administration). This memo, dated November 19 and labeled as Directive #99-134, suggests that as “an appropriate first step to prevent unauthorized distribution” of course notes on the Web, faculty can attach a statement to all course material that begins, “Copyright (author’s name) and the Regents of the University of California (year).” The memo also observes that this statement “differs materially from one recently recommended by the Davis Faculty Association.”

We appreciate the efforts of Professor Gibeling and Vice Chancellor Hamilton to help faculty members protect the intellectual property represented by course content. The protective statement they recommend, however, might give the Regents a legal share in the copyright to your own original course materials. Perhaps that would make the Regents (and the UC administration) more aggressive in defending such copyrights against trespass by Web entrepreneurs. But in the long run, you may lose more than you would gain by making the Regents a party to your copyright. As the Gibeling/Hamilton memo indicates, complex issues of federal and state law as well as University policy are involved here, and they will not be resolved quickly. Meanwhile, we continue to recommend that you distribute the following copyright notice at the beginning of your winter quarter classes:

Copyright (author’s name) (year)
All federal and state copyrights reserved for all original material presented in this course through any medium, including lecture or print. Individuals are prohibited from being paid for taking, selling, or otherwise transferring for value, personal class notes made during this course to any entity without the express written permission of (author). In addition to legal sanctions, students found in violation of these prohibitions may be subject to University disciplinary action.

The original DFA memo providing the rationale for this form of the copyright notice is available online at: http://www.ucdfa.org/news_articles/e_report3.htm

Further court decisions will undoubtedly redefine some of the issues. The Davis Faculty Association will continue to monitor developments in copyright law and University policy that are salient to faculty members’ rights. We invite your comments.

Most UCD faculty members go to a great effort to create their lecture materials and feel a strong sense of ownership in them. Student take notes at lectures and the internet has created a new market for the distribution of those notes. The instructor’s legal rights are long-established in terms of California law, but not clear in federal law. What can you do to protect those rights? Here is a summary based on an analysis by Jan Carmikle in the Business Contracts Office.

According to California common law, upheld by an older court case in which a UCLA instructor sued a commercial notetaking service, instructors hold copyrights to their lectures, and notes taken by students in their classes are therefore subject to restrictions as to copying and distribution, requiring prior consent of the instructor, such as the consent requested by Classical Notes on campus. So, as long as your lectures are given in California, this applies.

However, federal copyright protection of faculty lectures is not so clear. Federal law protects works “fixed in any tangible medium of expression.” But, since few instructors lecture verbatim from their written notes, these lectures may or may not meet the legal definition of “fixed,” and therefore may not be fully protected under federal law. National note-distribution firms have taken the position that federal law allows them to conduct their business without the need to respect California law (and that of a few other states) on this issue. This position is facing legal challenges, but final court judgements have not been made.

What Can You Do?

Since it is not clear that federal law protects your work, it is important to mention the protection of state law on notices. Here is one that is suggested you put on class syllabi, handouts and web pages:

While faculty do not necessarily want to keep students from sharing notes with other students in the class, this notice makes clear that any other type of distribution of personal class notes is not allowed.

If you find that notes are being distributed without your permission, you should collect any documentary evidence, such as printout of a web page offering the notes for sale which includes the URL and date (standard on most web browser printouts). The Business Contracts Office will take this information and send a “cease and desist” letter to the offending company, retaining documentation in the event you or the Regents eventually take legal action.

There are many other issues related to copyright ownership of interest to faculty members, in particular their ownership of recorded lectures. This is a matter of current discussion, although it is clear that the faculty own the products of their scholarly activities including lectures except when those rights are signed over. So, in the absence of any agreement, the faculty member owns the lecture no matter in what form it exists. DFA may present more details here in the future, and the following resources provide some current thinking from UC sources on the matter.

Additional Resources:

Business Contracts & Analysis website: http://vcadmin.ucdavis.edu/contracts
The UC Report on Copyright Ownership, http://www.ucop.edu/acadinit/copyright/reports.html

This bulletin contains three tables of data: I. Systemwide Salary Differential Over 20 Years; II. Davis Personnel Actions in Systemwide Perspective; III. Historical Davis Campus Personnel Practices. Notice particularly the low salary ranking in table one and the high CAP denial rate in table three.

Some definitions: The term CCO is long standing UC shorthand for “Chief Campus Officer.”  In principle that is the Chancellor; in practice it is almost invariably the Vice Provost by delegation from the “CCO.” Professional schools are excluded from the Academe survey and main campus faculty who are on 11 months’ appointments have their gross salaries scaled back to their nine-months’ equivalents–roughly a 15% reduction.

Table I: Systemwide Salary Differential over 20 years

The Davis faculty have been at or near the bottom of the systemwide salary ladder for many years. The table recently distributed with data from 1998-99 continues rankings that have held more or less constant for over 20 years. The following information was published in “Academe”, a periodical of the AAUP, which publishes extensive information about faculty economic matters annually. Both salary and “compensation” data are presented. The latter includes employer-paid benefits that have cash equivalents. The last column in the tables is the difference between the Compensation and the Salary at the Full rank.

Table II: Davis Personnel Actions in Systemwide Perspective

The following is a summary of information taken from CAP annual reports of other Divisions along with similar information for UCD in 1997-98 and 1998-9.

Table III: Historical Davis Campus Personnel Practices

The following information was taken from the Annual Reports of the UCD Committee on Academic Personnel at five year intervals for the last 20 years. The committee reports vary in the amount of detail they present about the various actions so what appears below is just the “bare bones” yes/no figures from each of them. “Other” represents mainly actions pending or split votes. Total numbers of actions from CAP and CCO do not necessarily agree exactly because of carry-overs from prior years, etc.

Faculty salaries at UC campuses vary significantly, according to information being examined by systemwide UC Academic Senate Executive Councils. Concern was precipitated when the 23 April 1999 Chronicle of Higher Education reported average annual faculty salaries (Table) based on the AAUP annual report on the status of the profession. The UC Davis Full Professor average salary is at the bottom of the seven major campuses. Assistant and Associate Professor salaries fit into narrower ranges, but UC Davis ranked near the bottom in these categories also.

UC Office of the President prepared more statistics to learn what factors might be influencing the numbers. Average age and age distribution of faculty indicated only slight differences among the campuses. A major factor appears to be the distribution of faculty at Professor rank. The last two Table columns show the percent of Full Professors at or above Step V and above scale (above Step VIII). UC Davis is again at the bottom, and for above-scale professors, significantly lower than UC Riverside.

This information raises some questions: Do other campuses have conditions more conducive to academic success? Do campus Deans, Provosts, and CAPs have different standards for promotions and merit increases? Are UC Davis faculty more cautious in recommending promotions? Have standards slipped at some other campuses while UC Davis is holding the line? The answers have implications for our Campus culture and collegial relations. DFA members should also ponder these differences, and urge the UC Academic Senate Executive Councils to give this issue their full attention.

by Ben McCoy

The Universitywide Task Force on Copyright, headed by UCSC Executive Vice Chancellor R. Tanner, issued its Draft Report and Recommendations for review in September, 1998.  A quick reading of the Tanner report seemed to promise that US law and custom would be respected, and that the copyright for any independent scholarly work would be owned by the creator of that work.  Indeed, item 6 of the report stated, “The University should reaffirm the policy that a faculty member owns his or her works of scholarship.”  But upon closer reading it became clear that in item 6, “works of scholarship” referred to research but not instructional material. The report noted that recordings of class lectures, for example, may belong to the University.  DFA Executive Board member Charlie Nash outlined the problem:

“Suppose that UC mounted a video camera in the back of 198 Young and videotaped all of my Chem 2A lectures (this in fact happened—my lectures were piped to an overflow room in Olson Hall and were taped en route.)  Suppose also that the following quarter UC decided to save some money by running the tapes of my lectures rather than employ me or another faculty member to revise and redeliver them. What are my rights?  Suppose even further that UC now decides to market the tapes in question commercially because of my expository brilliance, or to include them in the catalog of the California Virtual University and give or sell degree credit to those who enroll in the course via that medium.  It would be easy for UC to hire a grad student to cook up some exam questions for the virtual course and to hold some e-mail office hours.  Again, what are my rights?”

Aside from ownership and possible financial gain that faculty would lose in such circumstances, perhaps just as important is pedagogical and academic quality.  According to UC policy, faculty have authority for what is taught in the classroom.  Many faculty are rightly concerned that courses taught via electronic media not escape careful Academic Senate review.

A key issue is whether faculty work in the classroom is or is not “work for hire.”  An incident at UCLA shows the difficulties that can arise.  Faculty were required to post administrative information about their courses on the web and invited to add other material derived from the course syllabi.  One professor wanted to change some things he had posted on the website.  He discovered that the site was protected in  a manner that precluded him from making the changes without the permission of a gatekeeper.  In effect, his scholarly instructional work had come under the control of an administrative unit of the University.

DFA and the Council of UC Faculty Associations provided detailed criticisms of the Tanner report, including its inconsistency with United States Code—The Copyright Act of 1976.  The law provides that faculty own their classroom lectures, whether typed and placed on the web, written out on paper, or recorded electronically.  Several Academic Senate committees also saw and analyzed the problems. The Council Chair of the Systemwide Assembly of the Academic Senate wrote to the Office of the President saying that too many concerns and objections had been raised to consider the Tanner report close to being finished, and that a new statement was needed with another full faculty review.  We trust that the criticisms will be heeded.

[For another view on copyright  issues, see the AAUP website <www.aaup.org> under Distance Education & Intellectual Property Issues.]