* SCFA response to the University re: Proposed Campus Online Education Contract

The SCFA Bargaining Committee prepared this letter in response to the University’s proposed Campus Online Education Contract.  The proposal can be found HERE.


Renee Mayne
Director of Labor Relations, UCSC

Thank you very much for the proposed ILTI agreement, which you sent on April 1, 2014. Our Bargaining Committee has some initial comments, which we hope you will take into account before   the next iteration of the proposed contract.

I am also confirming, again, that at the moment we are exchanging views informally in hopes that the contract can be refined to everyone’s satisfaction. When, having received commentary from us and from the Senate, you are ready to propose another contract, we will want to bargain the contract in order to confirm it or request modification of it.

We begin with your cover letter, in which you write “Many of the provisions stem from the ILTI requirement that the course should be offered six times in the next three years.” In the contract itself, however, it states that it is “expected” or that there is the “option” of offering a course six times over three years.

As for the contract itself, here are our suggestions and comments.

First, throughout the contract, change the “contributor,” the “faculty contributor,” the “contributing faculty member,” and so forth, to “Course Creator.”

Second, clarify ownership and other relevant issues when more than one Course Creator creates an ILTI course. Since that is not addressed in the contract, we cannot point to a particular place in it where correction is needed.

1.1.3. Strike the word “perpetual” (eliminate it).

1.1.3. Provide an example of a derivative work, or several examples.

1.1.4. We are puzzled by what this means. Please provide an example.

2.1.2. We presume the Course Sponsoring Agency is a department? Any other possibilities? Can the Sponsoring Agency change without the Course Creator’s approval?

2.1.4 Eliminate the words “but are not limited to” and substitute the words “for example.”

3.1. Payment. We do not object to a placeholder, but have grave doubts about the business and educational model this idea may be based on. See our comments below.

4.2. Please provide examples or case studies of what is being anticipated.

Although we are not bargaining the business or academic plan on which ILTI courses are or will be based, we have given a lot of thought to some of these issues.  As you know, we are the Bargaining Agent for the faculty members of the Academic Senate, which is our Bargaining Unit; and the Senate also has authority over some of these issues. We will be communicating our concerns to the Senate, and we will be publicizing our views on our website. We offer the following thoughts to you, now, because of our commitment to the success of public education at UC generally and at UCSC in particular. We hope that these matters will be clarified for the Senate’s consideration.

A.     The faculty member who creates the course should be referred to throughout the summary and the contract as the Course Creator rather than the “contributor,” the “faculty contributor,” the “contributing faculty member,” and so forth.

B.     We are somewhat confused by what actually counts as an online course. Many of us use “flipped courses” and increasingly use technology in various ways in the presentation of our courses. Will some courses offered to ILTI be only MOOCs, or will some be “flipped,” or partially online, or will they be online but with discussion groups that require TAs or other personal attention?

C.     Although in general the contract confirms the Course Creator’s ownership of the course, we are somewhat unclear about what happens when a Senate faculty member cooperates with a non-Senate faculty member (i.e. a lecturer or a graduate student—as you know, advanced graduate students may teach courses independently). Who owns the course? To whom must it be offered first to teach it in the absence of the other Course Creator?

D.    We are puzzled about issues of copyright if these ILTI courses are marketed beyond matriculated UC students. Here’s the issue. In the contract, you talk about “fair use.” According to http://www.copyright.gov/fls/fl102.html,

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

1.     The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

2.     The nature of the copyrighted work

3.     The amount and substantiality of the portion used in relation to the copyrighted work as a whole

4.     The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

We are familiar with fair use in everyday university life in two main ways.

– One is when a small amount of a work is quoted for a review or for criticism. No problem.

– The other is when we use even a large amount of a work for teaching. Fair use law to a certain extent covers teaching. If, however, the University contemplates monetizing these courses to non-matriculated persons, it is very unclear to us whether “fair use” would apply. It would seem that it would turn our courses away from “teaching” into an entrepreneurial enterprise, with legal implications for copyright and fair use, and perhaps for tax implications, which are beyond our knowledge.

We bring this up because there is a placeholder in the contract for Payment (3.1). It also brings up some questions about the indemnification of the Regents for copyright infringement (8.1). It appears from this passage that the Course Contributor is responsible for obtaining copyright permission and that s/he is supposed to indemnify the Regents against any violations. Is that the intention of section 8? Is that the case now, in our regular courses? If so, we are more or less protected by the fact that we teach matriculated students in restricted-access venues, or, for course packets, obtain copyright permissions, usually at low or no cost.

We imagine, however, that copyright holders would charge more if they knew that, say, ten thousand people would be paying to take the course and that the University would be making money from it. How would a Course Creator be protected if the University decided to market the courses to the wider public? To imagine, as this contract appears to do, that the Course Creator should be responsible for negotiating such copyright permissions and their payments, or that the Course Creator ought to indemnify the Regents should there be a lawsuit, is unconscionable. At a minimum, we would want language that guarantees that UC will provide resources to faculty to assist them in complying with copyright requirements, provisions in the ILTI business plan to spell out how the costs of copyright permissions would be covered, and to answer any questions or issues that come up. That probably is not necessary at the moment, pre-monetization, but we put it in as a placeholder, as you put in the Payment issue.

E. We are puzzled about issues of compensation to Course Creators if these ILTI courses are marketed beyond matriculated UC students. In fact we would like some clarification on what is being contemplated by the Regents, by ILTI, and by the Administration of UCSC. In fact the whole concept of “compensation” for teaching courses is troubling on various but different fronts.

E.1 Our compensation for teaching courses now consists of our salaries, which are also based on the assumption that we do research, publish, and do service for the University and for our professions. ILTI courses, we would assume, do not compensate the Course Creator any more than teaching a regular course would, as long as the terms abide by the standard ones that currently operate.

Note, however, that CAP and departments will have to figure out whether teaching an ILTI course twice in a year by the same Course Creator, if s/he is a Senate member and is expected to teach a certain number of courses per year as part of earning his/her salary, will count as one course or two, and so forth. We see issues here that are outside the purview of the SCFA but will have to be dealt with by standing Senate committees.

Note that the situation for lecturers who are Course Co-Creators will also require some thought about fair policies. Strictly speaking, that is outside our purview. In fact, the AFT has a “me too” clause for a number of its provisions, giving its members the same rights in those specific instances as Senate faculty. Therefore what the Senate and we negotiate and decide about these matters will have wider implications.

E.2. If ILTI implicates some sort of tuition transfer from matriculated UC students from other campuses, we are puzzled about how it will work in the long run. It is hard to speculate since it is not spelled out in the contract (nor should it be), but we do feel some trepidation about possible ways that UCSC could be disadvantaged.

E.3. We are also concerned about competition between departments or faculty members at UCSC for providing online-courses (again –MOOCs? Flipped? ) in ways that might undermine fairness between divisions and among departments within a division, and, with it, academic integrity. We can spell out our concerns when we have more to go on about what arrangements concerning tuition and compensation are being contemplated.

E.4   We are especially concerned about the University’s status as an educational non-profit public institution if the University plans to market our courses outside UC and monetize them. The University has several auxiliary, money-making enterprises, such as parking and hospitals, whose profits are often or largely used for non-educational purposes, that is, they are not used directly for Instruction and Research. We believe the university may be even more compromised in its integrity if it turns its courses into moneymaking enterprises. Taking the long view, the University’s mission is first and foremost an educational one, not a profit-making one. Introducing profit-making activities directly using faculty members’ teaching and research skills raises the specter of making faculty members into Work for Hire, and the University from a public university to a for-profit, with the possibility of sub-contracting or outsourcing teaching. And it raises numerous possible collateral effects, some of them undesirable. These issues and their solutions must be carefully thought through before proceeding along that path.

Shelly Errington
For the Executive Board of the Santa Cruz Faculty Association
Cc: Herbie Lee