by Charles Nash
The following is a brief update regarding the status of AB 1773,
legislation which the UC and CSU Faculty Associations are
co-sponsoring. The bill attempts to delineate the role played by
the faculty in controlling the subsequent use of original
material presented in their lectures, and in particular
preventing the posting of class notes on off-campus commercial
web sites. This issue strikes home because Versity.com lists some
40 UCD courses in their recent ad in the California Aggie. In at
least several cases that we know of, the faculty members whose
courses have been so posted on the Web did not know of it and,
furthermore, they object to such posting. The notes are
inaccurate and potentially damaging to the faculty members'
reputations.
The Faculty Associations and the Administrations of UC and CSU
have very different views about the content—and indeed the
very existence of such legislation. The FAs believe that case law
has established that Section 980 of the California Civil Code
gives faculty members an exclusive ownership of original material
presented in their lectures. The University Administrations have
adamantly opposed the inclusion of any language in the proposed
legislation that would give the faculty such ownership either
overtly or by implication. In testimony before the Assembly
Judiciary Committee the Chair of the UC Systemwide Academic
Council opposed the very existence of legislation dealing with
disposition of lecture materials, arguing that this subject would
better be dealt with via “shared governance.”
The members of the Council of UC Faculty Associations believe
otherwise. The 1969 California Appellate Court decision which
confirmed that a faculty member could (and did successfully) sue
a commercial note-taking firm for damages arising from the sale
of unauthorized course notes contains the caveat: “We
are...convinced that in the absence of (contrary) evidence the
teacher, rather than university, owns the common-law copyright to
his lectures.” We see a real possibility that “shared
governance,” which often implies that each side gives a
little, could result in “contrary evidence” which would
afford the university intellectual property rights which we
believe it does not currently have.
The faculty ownership of classroom utterances has been clearly
recognized in both English and American law since Abernethy v.
Hutchinson in 1825, and we have no wish to allow that situation
to change so early in the 21st century. The UC and CSU Faculty
Associations commissioned an independent intellectual property
practitioner to prepare a White Paper on the current status of
State and Federal Copyright laws as they pertain to classroom
lectures. The interested reader can find this document on the DFA
website on the Current Activities page. Copies of it have also
been sent to all the members of the new UC Standing Committee on
Copyright, which had its first meeting on May 3.
The fate of our proposed legislation (AB 1773) is by no means
certain. Indeed, the text has been changing virtually on a daily
basis in an attempt by ourselves and the bill’s author,
Assemblymember Gloria Romero (herself a CSU Professor of
Psychology), to find compromise language that would induce UC and
CSU to rescind their present formal opposition to the bill in
question. Whether it succeeds or fails, our hope is that the
introduction of AB 1773 may have raised the consciousness and
attracted the interest of enough faculty members across the
system to insure that any policies stemming from “shared
governance” will not jeopardize the existing rights of the
faculties in California’s public post-secondary
institutions.
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