* SCFA letter to Labor Relations in response to the new Coursera contract 3-10-14

Renee Mayne Director of Labor Relations UCSC

March 10, 2014

Dear Renee,

Thank you for your letter of February 6, 2014, which included the new proposed Coursera agreement between the University and Coursera, and the contract between the course developer and the University. This letter continues the informal meetings and correspondence between Labor Relations and the Santa Cruz Faculty Association concerning Online Education. Although SCFA has the right to bargain various issues raised by online education, we very much hope that we will not have to do it formally. We very much hope that, through our conversations and negotiations in person and in correspondence, mutually satisfactory agreements can be reached in a timely way.

We were surprised by the language in this contract. We had hoped that the University’s new contract would address the issues that we have all raised.  We were under the impression that there was some consensus between us about fundamental issues.  The contract between UCSC and Coursera is not inappropriate. The issue is the contract that faculty are asked to sign with the University.

What surprises us is that this contract seems to be designed explicitly to turn faculty members into Work for Hire by making our lectures and other course materials the property of the University, by surrendering the copyright to the University and allowing the University to reuse these materials even if the faculty member author is not involved. That is precisely what the professoriate has fought against since its inception. To allow this to happen at this time would constitute a highly significant  negative precedent, particularly for a reputable research University, i.e., the University of California.

Below are some of the issues that we believe should be addressed in any contract between the faculty member who develops a course and the University.

Most importantly, in the proposed contract, the university demands that we should sign away our rights to our Intellectual Property. As you know, our IP belongs to us if there is no contract, by default, unless we sign it away—that is the law, AB 1773, established in 2000.

“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.”

This contract asks us to sign it away. That is not acceptable.  For instance, an early paragraph in the explanation of the contract you provided states

“For good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, and to the extent permitted by law, I hereby irrevocably grant University the absolute right and permission to use, store, host, publicly broadcast, publicly display, public perform, distribute, reproduce and digitize any Content that I upload, share or otherwise provide in connection with the Course or my use of the Platform, including the full and absolute right to use my name, voice, image or likeness (whether still, photograph or video) in connection therewith, and to edit, modify, translate or adapt any such Content (“Content Enhancements’) for the purposes of formatting or making accommodations to make Content accessible to persons who have disabilities.”

Asking the ASFM (Academic Senate Faculty Member) to irrevocably grant such an absolute right is not acceptable.

The issue of “course reusability” is also specifically addressed in this unacceptable contract. The exact language in the comprehensible-English summary is the following:

1.  Course reusability: Ensuring that the content can be easily reused in subsequent offerings of ?the course for which the instructor might not be involved. This includes:

And so forth. In short, the University anticipates that the course provided will effectively become the University’s property, and it can market it and reuse it without the participation of the course’s creator. That is not acceptable.

Incidentally, that is precisely why an early MOOC advocate from Princeton got out of his agreement with Coursera: see the story at “a MOOC star defects—at least for now” https://chronicle.com/article/A-MOOC-Star-Defects-at-Least/141331/. It sounds as if the faculty member had the right to negotiate directly with Coursera, or, alternatively, with his University, Princeton, to withdraw the course. In any case, he did not allow his course to be re-used without his participation.

These, among other stipulations, are not acceptable. Rather than go through this contract blow-by-blow, we will state a few principles. We have thought about these issues in greater detail than we had done when we all met last fall for our informal discussions, and I trust that the level of the detail will be of help to you in thinking through the terms of an acceptable contract. Please understand that we are not lawyers and this is not legal language, but it ought to be comprehensible as a set of principles that should be incorporated a contract.

First, we want to emphasize that we are well aware that Coursera (and other external companies) are different from UCOE or ILTI, and that the contracts with/for each will be different. That said, some of the IP (intellectual property) issues will be similar. We have the right to bargain IP for UCOE/ILTI courses, as you know, which is a local matter. When a contract for ILTI becomes available, we expect to be advised and may want to bargain it.

Second, we want to give you our framework for thinking about Coursera and what it means to offer a “course” through Coursera and involving our university. We regard courses provided by Coursera (and other such OLOs (online-learning organizations) as non-courses, in the sense that as they are not for university credit and do not usually or necessarily involve Senate committees in establishing policy regarding their quality, their place in the personnel process, and so forth. Publishing with Coursera is more analogous to publishing a textbook, or to being recorded for “the Great Courses” published on DVD by The Teaching Company (http://www.thegreatcourses.com/), or to the Ted Talks (http://www.ted.com/talks/browse), than it is like giving a course for credit through UCSC. Coursera, like a textbook publisher or TTC, have a legitimate place in non-degree education and popular culture. We can see virtue in having our faculty write and publish textbooks, record lectures for the Teaching Company, and create online “courses” for external OLOs. Doing any of those things may be good Public Relations for UCSC and for the individual faculty member; it may be remunerative for the individual or joint author (and neutral or better for the University, if some sharing of revenues is arranged); and it may bring more knowledge into the world. All of those virtues may be applauded.

The difference between publishing a textbook with a print publisher and doing an online course for Coursera with UCSC’s involvement is that in the former case, two parties are involved, the faculty member and the publisher, whereas in the latter, three are – the faculty member, the “publisher”/distributor (Coursera or another OLO), and the University. That fact complicates the IP issues.

With that analogy of publishing a textbook with a print publisher as the context, here are some thoughts on some issues and principles.

1.a. faculty IP.  Faculty own their material.

– The default owner of faculty material is the faculty member, in the absence of a contract between the faculty and another party explicitly signing it away or signing it over to another party. Any contract should reaffirm that fact. No contract should ask a ACFM (Academic Senate Faculty Member) to relinquish that right.

– We believe that faculty who want to provide material for online learning should license it and should stipulate the terms (e.g., amount of time to be licensed, any monetary or other compensation, and other relevant matters). The model should be licensing, not irrevocably granting absolute rights to anything.

– The course should be portable by the faculty –i.e., the faculty member may prefer not to renew the license, may license it to multiple OLOs simultaneously (if stipulated in the terms), and may take it with them to another job.

1.b. Technology platform and software—ownership issues.

– The platform on which it is done may be proprietarily owned by the OLO, or may be available for purchase or license, e.g. Canvas. (Canvas is apparently used by UCOE, whereas Coursera has its own platform.)  Ideally, the ASFM will be able to take it to sell, license, or show it elsewhere. But if the software is proprietary, hence the author cannot take the whole course+platform with them, nonetheless the ASFM is ideally free to use the same organization of the material, etc., on a different platform for a different OLO. Obviously the look and feel of the course transferred to a different platform may be different, but the structure and timing of lectures, tests, etc., may be replicated by the faculty on a different platform if he or she wishes to do so.

– Production and costs of production will be provided by the OLO or the University. That may have repercussions for the revenues or compensation, and should be built into the licensing agreement; but it should not change the ownership. For instance, if a course is monetized by Coursera but UCSC Extension puts in $25K to produce it, we can imagine that production costs might be paid back to the production unit by the monetization of the course; or a certain portion of the profits might go to the IT unit that provides help for all students and faculty in producing lectures and academic materials; it might count as a kind of “overhead” to support this kind of thing and keep self-maintaining. Many possibilities could be imagined.

– Please note that we do not support using MOOCs an auxiliary profit-making enterprise for the university. A policy of that sort could easily become a distortion of the University’s mission. But we believe that producing an OLO course also should not detract from the funds made available for Instruction and Research within the University itself, hence we would expect that reimbursement or something like it to the production unit at UCSC or at systemwide is not unreasonable. (Note that we are still discussing OLOs, not ILTI.)

– After the license to the “course” has expired, the ASFM also owns the videos and audio recordings the faculty lecturing that have been generated as part of the production, and may use them for other purposes.

– Images and videos – an issue that should be dealt with. If the images are fair use for password-protected teaching uses, faculty should not be held liable for using them in the OLO course; such issues should be investigated by the OLO and backed by their lawyers. If the course is money-making, the OLO will arrange for copyright and compensation to image-owners and will not hold faculty liable for using them. If faculty owns the media material (i.e., photos the ASFM took and owns, video the ASFM has made, etc.), compensation may be an issue that has to be worked out in the licensing agreement.

– Note that, while password-protected real courses (for credit) (such as the ILTI courses, presumably) can argue that fair use rules permit the use of images otherwise sold, the issues are more obscure when it comes to a commercial or free OLO’s marketing of faculty work. IP lawyers are need to work that out. An analogy might be textbooks, in which copyrighted images are indeed paid for, and the publisher pays for permission to use the images (generally) but is reimbursed for it by initial profits in selling the textbook. Again, lawyers are needed. The point is that these things should be worked out and be explicit in the contract between the ASFM and the OLO or the University rather than expecting the ASFM to assume the burden and the risk.

1.2.      Revenues and Compensation

– Revenue model to be organized by the OLO, but transparent in the contract to the faculty and to the University. (See comments above and below.)

– Compensation to faculty and/or the production unit and/or the University may be in various forms to be worked out explicitly beforehand. Various options should be standard and explicit in the licensing contract.

Like publishing textbook or recording for The Teaching Company, “publishing” on Coursera may increase the general prestige of the author, and may reflect well on the University, and may help to enrich the author. These can be good things. In no case, however, should the willingness of a faculty member to create an OLO course, nor its monetary or popular success or lack of it as an online “course” be used as criteria to prevent hiring, to deny advancement, etc., of an ASFM.

We have other concerns, and we would like to see them written into the contract between the University and any OLO –for instance, the marketing and use of data collected by the OLO. That is a different topic, but we raise it here because the University should be concerned about this issue if and when it contracts with an OLO to provide “courses” given by its faculty. A faculty member’s reputation is also at stake if he or she allows the data collected by people clicking on his or her “course” to be used for purposes he or she disapproves of. It may be that OLOs do not yet know why they are collecting data or what they will use it for, and for that reason the issue does not come up in their contracts with the University. But in fact, Coursera, for one, has had a lot of financial investment from Venture Capitalists, so it is not unreasonable to assume that they plan somehow to make some money. And let’s take to heart the lesson of Jaron Lanier’s Who Owns the Future, in which he argues that everyone is trying to collect and own data because they are certain it will be usable for profits in the future, even if they do not know yet the exact plan for monetizing it.

We also would like to ask for a point of information. It is our understanding that there is such a thing as a “signature” course for Coursera in which users pay a certain amount for a certification of completion. We would like to know more about it. We are not, on the face of it, against it, although we would of course want to review the terms of the contract.

We hope that these thoughts and concerns will be heard and that Labor Relations, our Administration, our Academic Senate through the Committee on Educational Policy, the Committee on Teaching, the Committee on Faculty Welfare, and the Committee on Planning and Budget, will take this opportunity to create a model for faculty participation in online courses with external companies that will preserve and even enhance the integrity of the academic enterprise. We do not believe that the present contract, the one you sent to us on Feb. 6, 2014, is that model.

 

Cordially,

Shelly Errington For the Executive Board of the SCFA

 

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