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[RRE]Copyright and the University

``` [I've abstracted this essay from a report that I wrote for the intellectual property committee of the UCLA Faculty Senate, rewriting all passages that pertained to UC-specific documents and issues. It may interest members of similar committees on other campuses, as well as librarians and others with a stake in current discussions of intellectual property in the university. The underlying issue here is serious. New information technologies risk becoming an occasion for faculty to lose their existing rights over the use of their own lectures and other instructional materials. This is not just an issue that affects a narrow interest group. The university is a well-designed machine for producing public goods, and everyone will suffer if that machine is broken.]

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Phil Agre http://dlis.gseis.ucla.edu/pagre/

Version of 27 November 1998. 2250 words.

This is a draft for discussion. You are welcome to circulate it, but please do not quote from it. Comments appreciated.

The opportunities presented by emerging information technologies are leading a wide range of social institutions to revisit long-standing policy arrangements. In many cases the new technologies, by their nature, carry a potential for serious conflict. In the university environment, no issue may carry a greater potential for conflict than copyright. Universities, of course, have always struggled with issues of intellectual property. But with the new roles of computer networking in the production and dissemination of scholarly and instructional materials of all types, these issues now cut to the heart of the university's mission. University administrations and faculties have awakened to the need for broad-based discussion and a substantive policy response to the issues that have been opened or reopened in the new environment. Profound dangers await, however, unless these deliberations are given an adequate conceptual foundation.

We must start by acknowledging some cross-purposes between the concept of copyright and the goals of the university. Copyright, as it has developed in American law, has been framed in terms of the economic incentives for the production and distribution of creative works. The concept of a "work" here is crucial. A work is a commodity, something produced and distributed in the market. The purpose of the university, however, is not primarily to produce works but to produce ideas. Works and ideas are different -- many perfectly useful works contain no new ideas, and many ideas are developed incrementally across several works -- and debate does not get off the ground until the distinction is clearly drawn.

The implications of the distinction between works and ideas are well understood in economic terms: works are commodities, but ideas are public goods. Public goods are goods that are not appropriable -- it is not feasible to make them into property -- and non-rivalrous -- many people can use them without using them up. This distinction has significant implications for the issues at hand. Markets are an efficient means for producing and allocating commodities, but they are not an efficient means for producing or allocating public goods. Because nobody can own an idea, classical economics predicts that markets, left to themselves, will not generate an adequate investment in them.

The institutions of the university, however, are highly adapted to the creation of public goods in general and ideas in particular. Universities produce other things besides ideas, of course, and some ideas can be appropriated to a certain degree through mechanisms other than copyright, such as patent. But if the topic is copyright, then universities must ensure that their efforts to obey the law and defend their interests do not interfere with the institutional mechanisms that so efficiently produce public goods. These mechanisms include academic freedom, norms for assigning and recognizing credit, peer review, the tenure and promotion process, and genres of writing such as the survey article.

More generally, the university community should reaffirm that its purpose is not in fact to promote the creation and dissemination of works, but to promote the creation and dissemination of ideas -- a different notion with different implications for the strategies that the university should adopt. Some of these strategies are defensive; they serve to ensure that existing protections are reinvented in the new environment. And other strategies are proactive; they require universities, working in concert, actively to reproduce and extend the conditions that make the production of public goods possible. Only when we recognize these societal interests and their institutional implementation do we begin to appreciate the stakes in an analysis of copyright.

The mismatch between the concept of copyright and the mission of the university can make it difficult to parse the issues. For copyright, the starting-point is a work, and the focus of analysis is the stream of royalties that might result from the marketing of a work. The integrity of the academic system, however, depends upon the ability of a faculty member to continue working with the ideas that he or she has embodied in a work. If copyright in a faculty member's instructional materials or real-time interactions with students routinely passes to a third party, then that faculty member must forever worry over the potential of suits for copyright infringement. Such a result would obviously be devastating. The underlying tension here is that between works and ideas. Even if it were granted that faculty, with their scholarly orientation, are indifferent to the revenue streams that might flow from their classroom wisdom, vast consequences derive from the faculty member's legitimate need to reuse and rework the complex network of ideas that flow and evolve in the classroom setting. The fundamental societal interest in classroom interactions, therefore, argues that intellectual property rules -- whatever they are -- should be designed not to inhibit the affected faculty member's teaching and scholarship in the future.

Similar considerations apply to scholarly publishing. The well-known serials crisis is now provoking an intensive reevaluation of the expanded role in recent years of for-profit academic publishers. A copyright analysis of this problem would take as given the value of maximizing the incentive to produce scholarly works that institutions and individuals want to buy. While this analysis is not without value, it nonetheless fails to speak to the fundamental societal interest in scholarly publishing, namely the benefits that society derives from the public goods that scholarly publications help to disseminate. Observe that, inasmuch as scholars do not profit from the sales of the academic journals that contain their work, the copyright model only provides incentives for the editing and distribution of journals, not for the creation of the ideas that the journals contain. And if the truth be told, the economic model for academic publishing into which we have drifted in the last twenty years is a catastrophe that threatens to undermine the integrity of research institutions.

It follows from these considerations that the university community should work assertively to place scholarly publishing on a more sustainable economic basis, starting with technological and economic innovation. Some experiments are under way, but the situation is sufficiently dire that more is needed. A for-profit business model does obviously make sense in many areas of life, and universities should certainly interact with for-profit entities on prudent terms whenever such interactions make sense. Scholarly publishing, however, is an area where these relationships demonstrably do not make sense.

If the issues surrounding the serials crisis have been reasonably well publicized over several years, issues pertaining to high-technology creation and distribution of instructional materials are much more uncertain. Although the university has come a long way since its medieval origins, intellectual property issues in instructional contexts have never required systematic attention because of the relative stability of the classic model of face-to-face interaction between professors and students. Now, however, in the context of "distance education" experiments at several leading universities, not to mention would-be commercial competitors to the university, fundamental issues are suddenly coming up for analysis. The most basic effect, we should observe, is that the potentials of new technology require the university to articulate policies in areas that had previously been governed by custom. Even the most faculty- friendly policy is still a policy, as opposed to the previous regime of laissez-faire, and the very process of choosing a policy throws open a world of possibilities. Some have even argued that faculty risk losing their livelihoods through the capture and replay of their lectures and other course materials. And others have endorsed this scenario, arguing that professors should not be treated any more specially than generations of industrial workers before them.

The suddenly necessary work of designing policy is made doubly difficult by uncertainty. Technology may develop in many directions, and we do not know which new types of technology-mediated instruction are practicable and effective, and in which fields, and for which sorts of students. Profound dangers lurk if we preemptively reify a particular conception of the technology and its relationship to the institution -- for example, the industrial distribution model of higher education that informs many futurists' scenarios of dynamic real-time markets in educational services.

Although a definitive solution is probably out of reach at this point, we can take specific steps to forestall unnecessary upset. Among the crucial cases from a copyright perspective are those in which the university makes a significant investment in the production of class materials. Surely, some will argue, such an investment should be recognized when it comes time to allocate rights to control future use of the materials that result. A profound danger, however, is that any such policy can creep downward into the routine control of instructional materials, simply on the grounds that a faculty member has employed university libraries or word processors in creating them. Universities, therefore, can get deliberations off on the right foot by articulating a principle that such-and-such use of university resources should be considered de minimus from the point of view of any such policy.

Courses taught through computer mediation necessarily capture most or all of the communications between students and faculty, and any policy in this area should recognize students' interests in their own contributions. It is not remotely adequate to say that faculty and student performances in electronically mediated class interactions will not be used by third parties without their permission. This may sound good on paper, but in fact it is meaningless, since the giving of permission can easily be made a condition of employment or enrollment. Because technology can change, we cannot now articulate principles that depend on the architecture or ontology of particular technical frameworks. We can, however, initiate the discussion by articulating principles that are not controversial. A university might declare that third-party use of real-time faculty or student contributions to class interactions should never be made a condition of employment or enrollment, that permission for such third-party use should be individualized and not written into larger contracts, and that no faculty member or student should suffer any loss of benefit or otherwise from failing to provide such permission.

A university can take strategic steps to prevent new instructional technologies from provoking unnecessary conflicts over copyright. One such step would be to encourage the adoption of open technology standards in both the production and distribution of instructional materials. We defeat our purpose if preparing a university course becomes an exorbitant Hollywood enterprise. We should draw a clear conceptual distinction between early experiments in this area -- ones for which the technology is immature and requires high levels of staffing -- and routinized practice -- once we have gone up the institutional learning curve, the cost of the technology has come down, and the skills of using and supporting the technology have diffused both in our own community and globally. If early experiments are mistaken for routinized practice, then the issues can be grossly misconstrued. Universities should not design copyright policies by extrapolating from the cost structures of early experiments with high-technology preparation and distribution of instructional materials, and should adopt an affirmative policy of not routinizing the employment of technologies whose cost structures are incompatible with traditional commonsense protections of academic freedom.

Precisely because the issues at stake are so profound and uncertain, many university communities have recognized that copyright should be addressed at a constitutional level. The most immediate choices, in other words, are not "what is to be done?" but rather "what are the ongoing governance arrangements by which intellectual property policies should be established?". It may not seem controversial, for example, to state that the university should educate its members on the copyright issues that can arise in various contexts. But the such education can easily, even inadvertently, become an occasion for propaganda. The leading principle here, of course, is shared governance between faculty and administration. Most faculty members have committed their careers to a professional habitus and incentive system that rewards the production of public goods, and faculty governing bodies can be counted on to reassert those societally positive values at each step. Administrators, for their part, are attuned to the external threats and opportunities that the university faces on many fronts, and this external perspective must be maintained in continual dialogue, and even some inevitable tension, with the public goods perspective. Absent such arrangements, and absent the traditional constraints of custom, the endless need for "flexibility" and "special cases" in the evolving intellectual property terrain will too easily evolve into open-ended loopholes and trench warfare.

The institutional issues that face the contemporary university cannot be comprehended in economic terms alone, or technological terms alone, or ethical and moral terms alone. Those kinds of simplicity are not in the nature of institutions. Rather, the various aspects of the university will evolve together through the interaction of various elements. The university community is not in perfect control of its destiny. In a democratic society, however, public argument about values and goals is a crucial means by which the future shape of our institutions can be consciously chosen. We must not fall prey to the millennialist assumption that technology will inevitably and totally inscribe its own logic upon the world. The truth is more complex. Some things will change, and some things will not. Some values will erode, others will be upheld, and still others will emerge. The technology itself will be shaped for better or worse. In order to participate constructively in these changes, we need to apply our learning and our common sense as we reflect upon them, as we analyze them, and as we deliberate together upon them.

[RRE]Copyright and the Universitywriting

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[RRE]Copyright and the University