May 2000 aaUPBEAT
Intellectual Property Rights
If you have a few minutes free one day, turn on your computer,
connect to the Internet and go to the following Internet address: www.versity.com. There you will
find a pedestrian-looking web site containing special offers of
interest to college and university students. One of these offers is for
the class notes to specific classes. Other offers include trial
examinations and summaries of great works of fiction. If a student
clicks with her/his mouse on the lecture notes option, he or she can
find class notes for higher-education courses taught at schools around
the country, including more than one hundred courses taught at the
University of Delaware. The notes, taken by students, are sold to
Versity.com for a fee. After getting the notes, Versity.com officially
assumes their ownership by copyrighting them. The notes are then made
electronically available to interested students.
Seeing one's work copyrighted by someone else can be a shock.
Alan David Fox of UD's Philosophy Department found this out firsthand
when he discovered that notes from one of his courses were posted on
Versity.com's web site and had been copyrighted by them. According to
Fox, the unauthorized use of notes on his lectures raises two problems.
The first is the fact that my entire course, which has been carefully
constructed over the years, is now published without my approval. The
conclusions I reached, the data I strung together to reach those
conclusions, and topics I covered are all published and copyrighted by
Versity.com. These conclusions have not been published in any book.
They are my own intellectual property, and I should be the one to
decide who benefits from them. I already get paid to teach, and I don't
need to make extra money off my notes. But I do think that I should be
the one to decide who can profit from them. Anyone reading these notes
can reconstruct my course completely.
Fox also argues that Versity.com has not only taken his
intellectual property, but has altered the very nature of his course.
The company has done this, he says, by reducing a complex dialogue
between professor and students into a process that encourages rote
memorization rather than logic or dialectical analysis. "My teaching
style is extremely dialectical," Fox says. "I ask a provocative
question, and I expect a certain range of answers. I work with these
answers to establish complexity and to get students to think for
themselves. I teach philosophy and the entire point of my course is to
get students to think for themselves."
Versity.com is not interested in the fact that this aspect of
Prof. Fox's course is the "entire point" of his performance in the
classroom. All they are interested in is their profits.
Fortunately for Fox, when he explained his concerns to his
class, the person who had supplied Versity.com with course information
admitted on his own that he was the culprit and promised to sever his
relationship with the company. He kept his word and the problem was
over - in that particular course.
Elsewhere, however, both at UD and around the nation,
Versity.com continues to grow.
The students who sell their class notes to Versity.com are
obviously a vital part of the company's business. Once hired by the
company, their official title is "Class Research Coordinator" or CRC.
According to Versity.com's job descriptions, which can be found on its
web site, CRCs are students enrolled in courses that Versity.com
provides notes for. They are responsible for taking high quality notes
of what was presented in the class and submitting them within 24 hours.
Additionally, they document class events and announcements as reminders
for other students. Benefits: Earn money by taking notes in class. You
choose the schedule, you set the hours. Responsibilities: Taking
quality notes during each lecture and posting them onto our site within
24 hours. Qualifications: Well organized, ability to work
independently, computer proficiency, a minimum GPA of 3.0, and the
ability to post notes within 24 hours. Compensation includes a base
salary and significant incentive-based bonuses.
A CRC's main role is that of middle person in the process of
extracting information from the privacy of the classroom, then placing
that information in the hands of those knowledgeable in the ways of
making that information their private property. For the most part,
students do this in the same spirit that has motivated students in the
past to share their written class notes with friends or members of the
same sorority/fraternity. However, there is a difference between
casual, localized notes-sharing and Versity.com's activities and it is
an important one.
When a company hires a student to covertly transmit a detailed
summary of a professor's vision of her/his subject, then claims
ownership of that detailed summary and the vision it implies, the
company has crossed the line between localized notes-sharing and the
establishment of a sophisticated mechanism for stealing other people's
intellectual property, then consolidating that property under the
banner of a specific company. Such acts violate the AAUP Statement of
Principles, which contends, "The utterances of an academic instructor
are privileged, and may not be published, in whole or in part, without
his authorization."
Unfortunately, existing copyright law contains loopholes that
allow a professor's intellectual property rights to be violated.
One of those loopholes is the "tangible medium" problem.
According to U.S. copyright law, a work can be copyrighted if
it is embodied "in a copy or phonorecord by or under the authority of
the author" and "is sufficiently permanent or stable to permit it to be
perceived, reproduced, or otherwise communicated for a period of more
than transitory duration." For a work to be so embodied means,
according to copyright law, that the work exists in a "tangible medium"
and therefore can be owned or copyrighted by its creator.
Although this wording covers a wide variety of human
expressions - e.g., written notes, audiovisual presentations, computer
software, scored music - it also leaves out some. For instance, a
choreographed dance that has not been formally diagramed cannot be
copyrighted because it doesn't exist in a tangible medium. Also, in
spite of the national AAUP's sensible insistence that a professor's
in-class verbal presentations should be protected by copyright law, the
law is at best vague on this issue. If the presentations are fully
written out, they can be copyrighted, but anything less than this means
the presentations do not exist in a "tangible medium" and therefore
can't be copyrighted.
Because of this shortcoming in the law, Versity.com argues,
the company is free to copyright a student's notes on a professor's
lectures. Far from breaking the law, they say, the company is merely
copyrighting something that exists in an embodied form (i.e., the
student's notes about a professor's ideas) that previously existed only
in an unembodied form (i.e., the professor's lecture).
As electronic publishing, with its mass-distribution
potential, increases the possibility of such ventures, higher education
has begun to respond. In California, an effort is underway to pass
legislation that would add new intellectual property language to the
state's education code. If passed, the legislation will apply to
California Community Colleges, California State University and the
University of California. One of the bill's purposes is to overcome the
limitations of the tangible medium problem. It does this by giving
professors "exclusive ownership" of any presentation they make "in a
classroom, laboratory, library, studio, or any other place of
instruction, performance or exhibition." The bill also prohibits the
unauthorized sale of notes or any other record of such presentations.
Similar legislation is needed in Delaware, and in the rest of
the states.
We plan to lobby for such legislation. We will keep you
informed.
Because the academy is the center of a significant portion of
the nation's intellectual work, faculty are understandably concerned
about intellectual property rights. However, it is in our interest to
recognize that, as important as the need is to address the kinds of
problems represented by Versity.com's activities, these problems are
only part of a much larger issue: society's attempts to come to grips
with the meaning of "ownership" in a world of rapidly advancing
technologies, corporate globalism and increasingly atomized workforces.
Three ownership issues related to patent and copyright
questions:
The National Writers Union v. The New York Times.
Although in the early 1990s electronic publishing was still an unusual
form of publication, as the decade proceeded and electronic publishing
became more common, The New York Times' owners correctly
sensed that a new market was emerging and that it would be in their
interest to control as much product in that market as possible.
Consequently, The Times altered its standard contract with
freelance writers, demanding that upon selling an article to the paper
an author surrender all electronic resale rights to the article. The
newspaper's goal was to deepen its power over authors by taking
advantage of the uncertainties implicit in the emergence of new
publication technologies. By arguing that electronic publishing was not
the "same" as other types of publishing and therefore represented
unchartered territory, The Times hoped to muscle freelancers into
surrendering over their work as it was related to this potentially
lucrative new market.
The National Writers Union (NWU), however, fought back.
Although the union lost the initial case, an appeals court notified the
NWU on September 24, 1999 that the court had ruled unanimously in favor
of the union's appeal and had reversed the initial decision.
This was an important case because The Times' policy raised
serious questions about the future of copyright laws and intellectual
property rights policies. Although the National Writers Union won their
appeal, patent and copyright laws continue to be challenged in
boundary-testing ways.
Basmati Rice. RiceTec is a Texas company. In 1997, it
patented the procedures and seeds it used to produce a basmati rice
variation similar to the rice cultivated for centuries in India and
Pakistan. Since most of the agricultural knowledge concerning basmati
rice and its variations stems from generations of Indian and Pakistani
farmers' experience in cultivating the rice, Indian farmers and
intellectual property rights experts have argued that RiceTec has no
right to patent their rice. A 1999 Public Citizen report supports this
Indian view, emphasizing that the patent is particularly onerous
because, under the World Trade Organization's TRIPs (Trade Related
Aspects of International Property Rights) Agreement, India will now be
"required to enforce the American company's patent over Indian
farmers." Public Citizen also suggests that RiceTec's "variation" on
regular Basmati rice is so close to the original that its so-called
uniqueness wouldn't stand up under real scientific scrutiny. If true,
this alone would deny RiceTec the right to patent its rice, since a
genetically engineered agricultural product must be significantly
different from the original it is based on in order to qualify for a
patent.
Robin Andrews, president and CEO of RiceTec, disagrees with
the company's critics. "This whole flap is totally unnecessary," he
says, then stresses the ignorance of his Pakistani and Indian critics.
"RiceTec invented a way to produce basmati rice in the United States,"
he claims, "comparable to the best basmati grown in India and Pakistan
and we received a patent to protect our breeding methods and seeds.
Those countries do not have such laws and, thus, few people there
understand what they do and don't do."
Indians and Pakistanis claim they understand very well what
RiceTec has done. In 1998, a group of well-known Indians sent a letter
to the U.S. ambassador to India that stated in part, "The truth is that
the U.S. is pirating the intellectual property of the farmers, healers,
tribals, fisherfolk of India and other developing countries."
Caterpillar, Inc. Caterpillar produces some of the
world's most renowned heavy-duty equipment for agriculture, road
building, forest clearing and other activities. In the early and
mid-1990s, as part of a labor-management cooperation program, workers
at U.S. Caterpillar plants shared technical information with management
regarding the machinery in their particular plant. Theoretically, of
course, management already knew the tasks that each machine performed
and the correct operating procedure for each machine. However, in
reality, as most industrial managers understand, the difference between
what a worker knows about a machine and what a manager knows about a
machine is often the difference between practical knowledge and a more
generalized knowledge. It is the worker's practical knowledge that
allows him or her to mend technical problems on the fly, know a
machine's eccentricities and compensate for them, and extract the
greatest possible longevity and productivity out of the machine.
Without this worker knowledge, a plant can't operate efficiently.
Knowing this, Caterpillar fought for the creation of a
standardized work program in which workers would teach management the
subtleties of machine operations in different plants. The company was
successful and the program went into effect. The supposed objective in
this sharing of information was to improve efficiency throughout the
Caterpillar organization. However, when conflicts developed between
workers and company over apparently unrelated issues pertaining to job
cuts and safety issues, the company used its new knowledge against the
workers. When the workers went on strike, the company used the striking
workers' technical knowledge of the machines to train non-union people,
including managers and clerks, to operate the machinery. This was done
successfully and eventually the strike was lost.
Many industrial unionists now advise workers not to give their
practical knowledge of a particular machine or machines to management.
They view this knowledge as their property, not the company's. As
Cameron Austin, a production worker in Caterpillar's plant in Decatur,
Illinois, says, "Caterpillar owns the buildings, but we own the work."
Such an example is distant from the average faculty member's
experience. Yet each of the examples just given should be of interest
to faculty because they suggest the intellectual property rights
debate's widening scope. Familiarity with this issue in all its forms
will help us to develop alliances with others who also have
intellectual property rights concerns.
"It has come to my attention that my lecture notes for this
class are being published on the Internet without my permission." I
found myself making this announcement recently to the students enrolled
in, ironically, my course on Legal Issues of the Mass Media. One of the
things I like most about teaching media law is that there are
inevitably current events that bring course concepts to life. I didn't
expect an example quite this close to home.
The day before a colleague had informed me that my lecture
notes were being posted on a web site called Versity.com. I was vaguely
aware these sorts of note-taking enterprises existed, but hadn't done
much thinking about how I would respond if my notes were to appear
there. Now I know: I was furious.
I logged on to Versity.com later that evening... I decided to
check the accuracy of the notes from a sample of my lectures. In each
of three cases, the notes consisted primarily of a direct copy of my
overheads, outlining the main points of each lecture. Explanatory
remarks were added, but they were often inaccurate by omission. For
example, one lecture addressed the legalities of different
news-gathering techniques. Since some of the relevant laws differ
substantially between states, in my lecture I made this point clear and
then proceeded to describe the current laws in Delaware. In
the lecture notes on Versity.com, however, the note-taker left out the
crucial information that these laws were applicable in one state
only.
The potential for inaccuracy is only one small part of what
troubles me about the proliferation of such sites. The core of the
matter for me is that , by selling ad space on their web site, the
people behind Versity.com are seeking to profit financially from other
people's work without their permission. This is fundamentally a matter
of intellectual property . . .
Colleagues and friends have suggested that outfits like
Versity.com are inescapable in the Internet age, and to a certain
extent I agree. But that doesn't mean they should be permitted to
operate as they wish, without challenge. Existing law will be applied
to the Internet through the resolution of issues precisely like this
one. It is important to include our voices in that debate.
On March 20, 2000, Robert J. Taggart, chair of the AAUP's
Student Award Committee, announced that Mr. Thomas M. Pellathy is this
year's winner of the chapter's Undergraduate Student Award. Mr.
Pellathy is a double major (BA) in philosophy and mathematics, and will
also complete an MA in linguistics, all by Winter Term, 2001.
Mr. Pellathy has a 3.80 GPA in the three majors. He is a
Eugene Du Pont Scholar and an Alison Scholar, received a Phi Beta Kappa
award as a sophomore, and currently has one publication in press and
another submitted in cognitive science. Not only is his academic work
outstanding in its quality and integrated nature, he is also involved
in several off-campus activities of regional and international
significance. These include his current participation in a PBS-WHYY
documentary film project on Guatemalan immigrants in southern Delaware,
his application for a Delaware Humanities Forum photography show on the
same subject, and his work as co-author on a book about Guatemalan
immigrants. Additionally, Mr. Pellathy has interned at the
International Centre for Migration Policy Development in Vienna, has
tutored at Wilmington's Latin American Center, and performed volunteer
work for environmental organizations in Pennsylvania and Paraguay.
The faculty who recommended Mr. Pellathy stressed his
"originality and precision" as a student, as well as his ability to
discover the interconnections between disparate fields, making him "as
close to a Renaissance scholar as one is likely to find these days."
Another professor assessed our award winner as "destined to make a
major impact on the field of immigration studies and on public policies
regarding immigration."
Such evaluations indicate that Mr. Pellathy is on track to
impact many lives, both inside and outside of academia.
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