What's Mine is Mine, and What's Yours Is Mine: Ownership in Online Universities
After years of dividing my time between freelance writing and teaching online courses, I shifted entirely to writing books and articles. But to the online education industry, I have not changed job titles at all: I am still just a content creator.
College instructors generally do not see themselves as creating content in the way that a freelance writer might. We write syllabi and lecture notes, which we retain and refine for future reuse. We also create that less tangible content of conversation and interaction that allows us to build successively better courses each semester. Students can jot down those notes and discussions, and even pass them along to notetaking services, but ownership of the thoughts themselves unquestionably remain with the instructor. And our content is portable: when we leave that campus or even just that course, those words go with us. At least, that's how it used to be.
In March 2000, after a few semesters of teaching a Cybercampus courses at Golden Gate University, I received this e-mail from one of their instructional designers:
Hello Paul, Someone pointed out to me that you have put copyright notices in your courses.... the content in CyberCampus courses is property of Golden Gate University. Golden Gate University pays a stipend for the content of each course, thus the content belong [sic] to GGU. Of course the instructor can use the subject matter content to publish elsewhere, but ggu also has rights to continue to use the material in its online courses. Please remove references to Copyright Paul S. Collins from any of your CyberCourses, or let me know where these phrases are so I can remove them.
Golden Gate University had electronic rights on my work? I didn't remember signing anything to that effect. The copyright notices, which I had blithely inserted into my online courses the year before by force of freelancer's habit, had never been challenged until now. I instinctively reached for the phone and called an attorney.
"Unless you signed a contract stating otherwise," she said, "all copyrights are presumed to reside with the author. Did you grant them any copyright?"
"I don't think so."
"Okay. Dig up your contract, if you can. My guess is that they didn't have any such clause, and they're bluffing. Anyway, the burden of proof is on them. Just tell them that until they show you in writing a signed contract that says otherwise, you own the copyright, and you can put all the copyright notices you want on your work."
We were not to know it during this episode, but our position has since been clarified and strengthened by the June 2001 New York Times Co. v. Tasini ruling by the Supreme Court. Justice Ginsburg, writing for the majority, made it clear that a publisher without electronic rights cannot republish works that have been altered or stripped from their original context; in the Tasini case, this meant that while a publisher can microfilm entire newspapers without authorial permission, they cannot parcel out articles into databases like Lexis-Nexis without permission. One could argue from this ruling that while a university can archivally maintain the contents of an old online course - syllabus, discussions, lectures, and all - they cannot update or cherry-pick content from these old courses for resale purposes, unless they have contracted for the express rights to do so.
As a content provider, I am not always opposed to selling such rights to my work. I've written CD-ROM user manuals, music reviews, and technology reporting, sometimes selling away all the rights. This is a calculation that freelancers have to make; if you're unlikely to need the material again, then why not sell some or all rights and thus maximize the fee that you can demand? I have sold courses in literature and music to the online instruction venture Hungryminds.com. But their contract clearly stated this from the outset, whereas Golden Gate's demand that I remove my copyright notices seemed to be a muddled and belated recognition that they might be sitting on something of value. Golden Gate University, which is a well-run operation that gives more thought than most to the needs of its part time and online instructors, seemed ready to stumble into a troubling precedent for its contractual relations.
My concern for instructor rights in this situation was not entirely selfless. The content of my online courses had been drawn heavily from a textbook, Community Writing, that I was drafting at the time. By March 2000, when the Golden Gate University Cybercampus e-mailed me, the ink was drying on my publishing contract. Although the school claimed that I was free to publish my material elsewhere, their hazy understanding of our contract did not fill me with great confidence in this promise. When I called a senior colleague at Golden Gate, he expressed surprise over the school's claim.
"I don't think they even have a policy on this, never mind anything in the contract," he said. "Maybe they're pushing you, seeing what they can get. Push back. Tell them they can't have it, and they'll probably back down."
Whether this "push" was deliberate or not is an open question. But if an employer quietly annexes content that a contract does not entitle them to, and usually gets away with it, they reap a two-fold benefit: the content itself, plus the appearance of a deceptively unthreatening contract. Freelancer writers watch for this; publishers pull all sorts of nonsense if you don't call them on it. Golden Gate is not even unique among academic content purchasers in this regard, as Gary Rhoades notes in his study of teaching contracts in Managed Professionals: "It is often in managers' interest to keep matters out of the contract - that generally increases their discretion. Absence from a large number of contracts does not necessarily mean lack of managerial interest in the issue. Indeed, managerial interest is strong" (175).
After I'd made about a week of politely firm e-mails to various administrators, my colleague at Golden Gate called me again: "They're backing off, and they're also taking your old courses off the server." So I was lucky - this time. But what's to stop them from trying the same thing with new hires? With these hires, they might make sure that the contracts included a copyright provision. And who actually reads the fine print in teaching contracts? I also had more motivation than others to fight back. Most instructors do not write textbooks; if the school wants to claim that it owns their online work, what of it?
Let's imagine a future in which the insertion of such provisos in online instruction contracts becomes standard procedure - particularly the purchase of all rights, a phrase easily lost in the fine print, and one that some newly minted adjuncts and even professors will not realize the full import of.
Ownership does funny things to people. First, it can affect courses even as they are being taught. Instructors fret enough when they get an evaluation observer in the classroom every few years, but when lectures and classroom discussions are permanently preserved on a school server, administrators can visit and revisit as often as they like. They can dictate changes in course content while the course is in progress; after all, they own it. Most writing contracts contain a proviso stating that writer will try to make "reasonable efforts" to edit and improve the work at the suggestion of an editor. Failure to make "reasonable efforts" can result in a contract's termination. The insertion of such boilerplate into cybercontracts could radically undermine the autonomy currently enjoyed by instructors -- particularly for adjuncts who have little recourse to protest such decisions, and often lack the financial independence to turn down work, no matter how unfair the terms that it is offered on.
But let's assume you are an instructor who has managed to teach your online course, as most offline instructors now do, under a departmental reign of benign neglect. The school still owns your words, and they can prevent you from reusing your own work. Many instructors find that their courses can be transplanted from one campus to the next - or, at the very least, that they can rework some of the instructional materials they developed at a previous campus. For adjuncts, the judicious reuse of courses at two, three, even four campuses simultaneously is often the only way to stay afloat. But once a school asserts ownership over your content, you can be sued for using your own lectures. A simple search engine would easily turn up violations on instructor web pages.
Not only can the copyright holder prevent the reuse of old work, but an owner of all rights to a work can also reuse it in any way they see fit. An adjunct desperate for work may press ahead and ignore the small print that signs away their rights to the content they generate, but now their employer can stitch a combination of old courses into a new e-course, or rework the lecture notes into, say, a new book. The writer would be powerless to stop it.
There is an even more disturbing possibility. Experienced instructors could be hired to develop a course - create the syllabus and curriculum and modules, do a shakedown cruise or two with it - and then have the rug yanked out from under them. The course material could then be handed over to a lower paid and more pliant adjunct. Even the online discussions held on class conference boards would remain property of the school, who can then sell it, or rework extemporaneous comments into whatever form they like; the once private and personal nature of classroom discussion could evaporate overnight. A variant of this model already exists at Phoenix University, which uses canned courses created by course developers and then taught by low-paid online instructors.
There is also no shortage of adept English speakers outside the United States. This could mean for education what it has already meant to every other industry from computer programming to customer service lines: outsourcing. A campus can create a credible curriculum of online courses, if designed carefully, in such a way that the courses can be taught in a lockstep fashion remotely. Once this has been achieved, why pay American wages to grad students who keep bugging you and the NLRB with attempts to organize a union? Why not have classes taught by an instructor in, say, Ireland?
Would students even notice the difference? They already have not noticed. When I first joined Cybercampus, a colleague boasted to me, "You know, one of our professors is in Belgium right now, teaching his course from there." What he meant was that the courses offered tremendous flexibility to instructors. But in retrospect, my colleague may have meant more than he realized. Online teaching means that you can teach your ideas from anywhere, but it also means that someone else can teach your ideas from anywhere.
These scenarios are not new ones, and by some lights they might not even be as frightening as they used to be. In his series of "Digital Diploma Mills" essays, David Noble pointed out precisely these same dangers of deskilling, outsourcing, and institutional fudging on intellectual property rights; he berates the University of California for some particularly egregious misconduct in the latter category. He ends with an exultant revelation in the essay "Fools Gold" of the tide of financial losses by would-be online education moguls, and with a provocative comparison in his essay "Rehearsal for the Revolution" of online education with the discredited rush by universities into correspondence school schemes in the early twentieth century. The fiscal losses are real enough, and the parallels to the marketing of correspondence schools are striking. But it is a mistake to underestimate the potential of online learning. That few schools have figured out how to make money yet is not surprising, given that most speculative new industries have an early period of explosive and poorly planned growth, often resulting in far more losers than winners. As the industry matures, so will its business models. Moreover, Noble appears convinced that online education is a snake-oil enterprise, distinctly inferior to "real" teaching. This is not the place to go into a discussion of the merits of online learning, but Noble's avowed cyber-illiteracy - he refuses to even use e-mail - serves him poorly as a critic of online teaching (Young, "David Noble's Battle..."). His blanket pedagogical criticism will ring false to those who have actually taught such courses, myself included. Online education can be a hollowed-out fraud of real learning, but in the hands of intelligent instructors it can be a powerful form of education.
So Noble's warnings need to be taken even more seriously than they are by their own author. His fears over intellectual property should be heeded precisely because his pedagogical invective has so little credibility. If online learning was mere moonshine and snake oil, then the institutional seizure of online content would prove largely irrelevant; the fad would eventually pass and the danger would be gone. But online learning will prove much hardier than Noble thinks, and once the profits do come in, the contracts that he has been excoriating will prove a serious problem indeed.
The first step is that online instructors need to think of themselves as teachers and freelance writers. This means reading the fine print in contracts, and understanding precisely what the terminology means - and if it's vague, demanding clarification. Legal guides currently published for freelance writers will provide instructors with a sense of what they are signing away when a contract demands all rights, or electronic rights, or just one-time rights. Because writers and their unions already have much hard-won experience with these issues, academic unions and professional groups would be wise to cultivate relations with writer's groups, and even retain copyright lawyers.
There should be a model contract for online instruction. Campuses might not use it, but it would provide a starting point and a standard of comparison. Or online instructors could have a standard written rider agreement, asserting full or at least limited rights to their work; employers could be asked to sign this rider, thus superceding any competing provisos in the university contract. At the very minimum, online instructors should have a checklist of contractual questions for their employer to answer.
In saturated academic labor markets, though, job seekers are often in no position to make demands. This brings me to my broadest suggestion, the only one likely to have a long term effect or provide some protection to those lowest on the totem pole. Accreditation is the biggest cudgel that academia carries, for its loss can be a staggering and even fatal blow to a school. To guarantee instructor autonomy, their authority over course content and electronic rights should be a condition of accreditation. It will be an uphill battle to get this provision inserted into accreditation standards, for a great deal of money may be at stake. And after all, instructors do not enter teaching to spend their spare time debating contractual law. But if instructors and academic unions do not tangle with some online legal language now, they will find themselves facing more of it in the future - and on far less favorable terms.
Ginsburg, Ruth Bader. "New York Times Co. v. Tasini. Supreme Court of the United States, No. 00-201." 25 June 2001. Supreme Court Collection. 20 Jul. 2001.
Noble, David. "Digital Diploma Mills, Part IV: Rehearsal for the Revolution." Nov. 1999. University of California Communications Department. 17 Jul. 2001.
---. "Digital Diploma Mills, Part V: Fool's Gold." Mar. 2001. University of California Communications Department. 17 Jul. 2001.
Rhoades, Gary. Managed Professionals: Unionized Faculty and Restructuring Academic Labor. Albany: SUNY Press, 1998.
Young, Jeffrey R. "David Noble's Battle to Defend the 'Sacred Space' of the Classroom." 31 Mar. 2000. The Chronicle of Higher Education. 17 Jul. 2001