Davis Faculty Association

Early in the quarter, the DFA sent a press release regarding AB 1773, a new bill co-sponsored by the Council of UC Faculty Associations which makes it illegal to distribute or publish with a commercial intent any unauthorized, contemporaneous recording in any medium of a presentation in any California classroom. Subsequently, Dateline published an article on this issue that contained some factual or interpretive errors. We sent a letter to the Editor in an attempt to correct the misperceptions that the article created. To date, Dateline has not published our letter. Since the quarter is nearing an end, we feel compelled now to publish a somewhat amended version of the letter so that all Senate faculty will know the true story about AB 1773. We provide it for you below:

TO: The Editor of Dateline

Sir: Both fairness and accuracy require that the recent front page article headlined “UC Davis keeps lecture notes off the Internet” not go unremarked. The University of California had nothing to do with the introduction of the legislation in question (AB 1773, Romero). In fact, spokesmen from UC and CSU as well as the Chair of the Academic Council of the systemwide UC Academic Senate testified against the bill at its first legislative hearing. The bill was co-sponsored by two organizations: the Council of UC Faculty Associations (to which the Davis Faculty Association belongs) and CSU’s California Faculty Association. The bill was amended several times as it evolved, with the result that the Universities no longer opposed it. In brief, AB 1773 makes it illegal to distribute or publish with a commercial intent any unauthorized, contemporaneous recording in any medium of a presentation in any California classroom. It also empowers the Attorney General, District Attorneys or other similar public officials to pursue violators of the statute.

For more than 30 years it has been known that, under California law, academic institutions are almost powerless to intervene when a determined note-taking entrepreneur invades a campus. That is because according to the Legislative Counsel’s digest of AB 1773: “Existing case law provides that without evidence to the contrary, a teacher, rather than the institution for which he or she teaches, owns the common law copyright to his or her lectures.” The bill itself also states: “Nothing in this chapter is intended to change existing law as it pertains to the ownership of academic presentations.” What this means in practice is that before AB 1773 was enacted, individual professors had to initiate legal action to halt the misappropriation of their lecture materials on a case-by-case basis at personal expense. Now they can ask the State to do it for them.

It is entirely correct that administrative representatives from UCDavis talked with versity.com “regarding possible acceptable ways the latter might do business on campus.” As a result of those conversations the firm actually pulled all the UC Davis course notes down off of their Website in the last week of the winter quarter. What the Dateline article failed to mention, however, is that in the spring quarter they were back up again.

In mid-May, when the Davis Faculty Association got into the act, versity.com was posting notes for more than 200 courses on six UC campuses, including 43 from UC Davis. With the financial support of the Davis Faculty Association and the assistance of a private practice attorney who specializes in intellectual property matters, a Davis faculty member whose notes were mounted on the versity.com website threatened legal action in the Yolo County Superior Court if those notes were not removed immediately. The threat cited the “existing case law” mentioned above. The offending notes came down within 24 hours and as a fringe benefit no further notes were posted for any UCDavis courses for the rest of the quarter. During the spring quarter versity.com merged with the San Diego-based firm, “college club.com.” During the summer the latter evidently overreached itself, and declared bankruptcy.

All of this works to explain why, in the words of the Dateline article: “The company eventually pulled UC Davis notes from its site.” The DFA is planning a winter forum to promote campus discussion and to further explain faculty rights on copyright issues.

The draft of the revised APM-025, entitled “Conflict of Commitment and Outside Activities of Faculty Members” is not only a substantial revision of existing policy, but even re-titles the policy. See the full document at http://www.ucop.edu/acadadv/acadpers/apm/rev-025etc.html The existing APM-025, instituted 7/1/96, is simply entitled, “Outside Professional Activities of Faculty Members.” Events since 1996 have apparently motivated the University to decide that the policy was insufficient and in need of drastic change. According to the June 22, 2000, transmittal letter from Provost King, “The revision of APM-025 was undertaken in response to the findings of an administrative task force convened by the President….The proposed policy is intended to provide a framework through which University administrators and faculty can assure all of the University’s constituencies that potential conflicts of commitment are identified and appropriately managed, while at the same time assuring that faculty may engage in a wide array of outside activities without unnecessary limitations.”

Present APM-025 obligates faculty “…to have a significant presence on campus, to be accessible to students and staff, and to be available to interact with University colleagues throughout every quarter or semester of active duty…A faculty member’s failure to meet classes, to keep office hours, or to hold examinations as scheduled is unacceptable conduct under the Faculty Code of Conduct.” Currently, each faculty member is supposed to provide a nonconfidential annual report on her/his outside professional activities to the department chair. These activities are considered in regular reviews for possible recommendation for advancement.

The revised policy elaborates expansively on these issues. The detailed and extensive definitions, categories, time limits, forms, and regulations in the draft policy are daunting. Upon reading through the elaborate procedures, one would expect that these draconian measures are meant to rein in rampant and indiscriminate shirking of duties and responsibilities by UC faculty across all the UC campuses. What motivated the changes and what indeed is the extent of faculty negligence or dereliction in meeting their responsibilities? A comment from a UCOP source who participated in the discussions suggested the following explanation.

“A few years ago there was major publicity about a few faculty who started a very successful company and made lots of money. This raised questions in the press, the Regents and the President about how faculty could be so successful with only one day a week of outside professional activity. There were other related issues that also surfaced, mainly concerning conflict of interest in licensing. The President asked us to look again at the policy on conflict of commitment.”

Because conflict of interest for research grants, patents, and licensing are dealt with in separate policies, and are not addressed in APM-025, these matters do not appear to be the real issue. Questions have also been raised as to whether the problem that apparently led to the new review — the incident of several UCB faculty who operated an extremely successful consulting business in their spare time– warrants any action. At the time of this incident, UCB administrators tried to have the federal government indict the faculty members for allegedly violating “rules” about over-commitment of time on “outside work.” The chair at that time of the UCB Committee on Privilege and Tenure has recently commented, “…the campus and the feds dropped the case after P&T issued its 95-page abundantly footnoted report that, among other things, proved that there were no rules on the matter and that therefore none could possibly have been violated, and in any case it was questionable whether the administration had the right to limit what a faculty member did with her/his own time. The UC Berkeley administration subsequently apologized to the accused, and has taken steps to compensate for the anguish, lost time, and financial costs to the individuals who had been victimized by its false accusations.” Whatever the merits of this particular incident and whether some new policy is needed or not, the question is whether the new APM 025 is a sensible and reasonable policy.

The administration has apparently seen fit to promulgate the necessary rules so that it can control what faculty members do with their own time. Thus, rather than rely on the straightforward principle that a faculty member must fulfill her/his teaching, research, and service obligations, the University is proposing a bureaucratic approach involving definitions, categories, time limits, forms, and regulations. But even here the draft policy trips over its own bureaucratic convolutions — it does not define a “day.” The draft allows that nine-month faculty may engage in outside professional activities “for up to 39 days from the start of the fall term through the end of the spring term (including inter-session).” The guidelines provide no definition of a “day,” but instead place the onus on the faculty member to provide an explanation for the definition of “day” when she/he fills out the forms. Furthermore, including inter-sessions as part of the formula restricts what faculty can do while on vacation. The policy generously does not restrict what nine-month faculty members do with their summer months.

There is no doubt UC is coming under scrutiny for its increasing ties and obligations to the private sector. But most of the controversial ties are solicited and negotiated at the administrative level. The UC administration, in its entrepreneurial zeal to raise research dollars through corporate partnerships, has a “conflict of commitment” of its own. Is it possible that UC hopes to deflect the scrutiny and criticisms of its own liabilities by imposing on and burdening the faculty with a new policy?

The DFA Board believes that it is ill-conceived to increase the number and complexity of rules governing the one day a week that current policy allots to outside professional activities. Regents’ Standing Orders dictate that faculty must fulfill teaching, research, and service obligations. This rule is sufficient. The UC academic merit and promotion system offers ample opportunity for UC to hold faculty accountable for failing to meet their obligations. The system also allows non-departmental faculty committees and administrators to comment on deficient faculty performance. As long as obligations are met, there should be no reason to inquire further into faculty members’ private lives. Performance is evaluated every year in biography-bibliography reports, in student evaluations, in professional publications and other academic achievements, and in department chairs’ appraisals. Enough already!

The DFA welcomes your opinions regarding this issue. Simply reply to this message; we will forward your pertinent comments to the appropriate Academic Senate committees.

As a new academic year is about to begin, the Board of the Davis Faculty Association once again urges its colleagues to take a few simple steps to safeguard the original material which they distribute to their classes in tangible form; in effect material that you produce and distribute that can be picked up and carried around. What you say in class does not fall into this category. The distinction is an important one because material in tangible form is covered by Federal Copyright law while what you present verbally in a classroom is the province of California Civil law.

With regard to tangible course materials such as your syllabus, original problem sets and their solutions, course web-site postings etc, we recommend that you put on the bottom of each page a statement such as the one proposed last year by the UC Davis Business Contracts Office:

“Copyright [your full professional name], [year]. All federal and state copyrights reserved for all original material presented in this course through any medium, including lecture or print.”

THIS WILL PROTECT BOTH THE TANGIBLE AND VERBAL CONTENT OF YOUR WORK.

We further recommend that faculty members whose distributed tangibles include substantial amounts of original material, such as lab manuals or drafts of papers/chapters formally register those copyrights. This is a relatively simple and inexpensive exercise ($30.00) which would make it much faster and simpler to pursue a copyright infringer if one should surface. The forms and instructions for registering a copyright are readily available on the Library of Congress website: www.loc.gov/copyright/.

We continue to discourage faculty members from including the Regents of the University of California as co-copyright holders because we believe that doing so would severely compromise ownership rights which faculty currently enjoy under California State Law. We say that because according to the California Legislative Counsel: “Existing case law provides that in the absence of evidence of agreement to the contrary, a teacher, rather than the institution for which he or she teaches, owns the common law copyright to his or her lectures.” An inclusion of the Regents in a copyright statement would clearly constitute “…evidence of agreement to the contrary.”

by Myrna Hays

A nominating committee consisting of Terrence Murphy (Plant Biology), Kathryn Radke (Animal Science), and Roslyn Isseroff (Med: Dermatology) has proposed candidates to fill DFA Board positions as listed below with the following code (C – continuing; E – elect):

Officers:
Chair: Ben McCoy (Chem. Engr.) C
Vice Chair: Alan Elms (Psych.) E

Board members:
Judy Stamps (Evol. & Ecology/DBS) E
Charles Nash (Chem. Emeritus) C
Floyd Feeney (Law) C
Don Abbott (English) C
Peter Richerson (Env. Sci.) C
Andrew Waterhouse (Vit. & Enol.) C
Lynn Roller (Spanish & Classics) C
Bill Lasley (VM: Pop. Hlt.) C
Hugo Bogren (Med. Sch: Radiology) E

All nominees have agreed to serve. Their two-year terms of office will begin Sept. 2000. Further nominations may be made upon petition of 5% of the membership (15 members) in good standing as of April 1, 2000. Such petitions must be delivered on or before June 10, 2000, to the Executive Director (address above). If no nominations are submitted, the slate shall be accepted as elected.

Members leaving the board are Sid Gospe (Med: Neurology), and Bob Powell (Chem. Engr.). We thank them for their service to the DFA.

Since 1995, when the DFA last raised dues, faculty have received annual COLAs. The board has determined that a dues increase is now needed to meet normal cost of living increases of the organization. So, effective July 1, 2000, dues for active faculty will be $19.50 per month thru payroll deduction; emeriti dues will be $30 per year, due in Nov. 2000.