[The enclosed text is a transcript of a UCLA Academic Senate discussion
on the intellectual property issues arising from professors' classroom
materials in new electronic media. It is copyright (c) 2000 by the
UCLA Academic Senate and is forwarded by permission. I have heavily
reformatted the original Word file, which can be found on the Web at:
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Legislative Assembly Minutes of Meeting, April 11, 2000
Meeting: With a quorum present, Chair Vredevoe called the meeting to
order at 2:05 p.m.
Minutes: The minutes of November 16, 1999, were approved as written.
Announcements and Opening Statements
Senate Chair Donna Vredevoe
On behalf of the Academic Senate, I welcome you to the second meeting
of the Legislative Assembly for the 1999-2000 year. The agenda for
today's meeting departs somewhat from tradition. We begin with a
special panel discussion on issues that are of growing importance
to both the Statewide and local Academic Senates -- "Teaching,
Intellectual Property, and New technologies". Organized and
moderated by Vice Chair, Stephen Yeazell, this presentation features
two outstanding guest speakers -- Mr. Kenneth Ziffren, member of
the law firm of Ziffren, Brittenham, Branca and Fischer, and adjunct
professor in the UCLA School of Law -- and Executive Vice Chancellor
Wyatt R. Hume, who also serves as Chair of the University's standing
Committee on Copyright.
Following the presentations of our guest speakers, a panel of
respondents will offer questions from the faculty's perspective on the
issue.
Before we begin, I would also like to introduce a member of the
audience who is joining us for the first time -- Jim Davis, the new
Associate Vice Chancellor for Information Technology. We welcome
him. He comes to us from Ohio State University and will be joining us
full time in July.
Immediately after the panel, we will move into the regular agenda
for the Meeting of the Legislative Assembly. Executive Vice
Chancellor Hume will be offering us an overview of recent campus
issues, including enrollment planning, the Orion II situation, and
the financial outlook for the School of Medicine. After opening the
floor to questions, we will continue the meeting with approval of the
Consent Calendar and Standing Committee Reports.
Once again, before turning the meeting over to Professor Yeazell, I
want to thank you for attending today's Legislative Assembly session.
I trust you will find the special presentations you are about to hear
valuable and informative.
Senate Vice Chair, Stephen Yeazell
I want to welcome you to a preliminary, but I hope an important
discussion of an emerging and very important topic. Within the
traditions of Shared Governance, how should we think about teaching
that extends beyond the traditional class, seminar, and bedside
settings? This topic is important; it is also relatively new.
Let me set the stage for our speakers with a very short casual
his story of intellectual property in the University of California.
It won't surprise any of you to discover that we spend most of our
time in teaching and research. Until recently, only the latter of
those activities has generated any significant issues in intellectual
property. As to those issues, one could charitably characterize
the University's response as flexible -- less charitably, as
schizophrenic. For copyright, one of the two characteristic products
of faculty research, the University has taken the stance that faculty,
unless there has been some special arrangement to the contrary, solely
and completely control copyrightable materials. Towards patents, the
University has taken a varying position. In the late Pleistocene era,
when I joined the University faculty, the University stance was very
clear: The University owned any patent, which I stumbled across in
the course of my teaching in the law school. (I hasten to assert that
this hasn't happened yet.)
Sometime in the mid-1980s, the University concluded, with a great deal
of faculty input, that this stance of sole ownership was not producing
the kind of results that were needed. It was recognized that this
arrangement was unsatisfactory for both sides, and essentially the
University re-cut the deal. It re-cut the deal in a way that, with
continuing revisions, essentially creates a regime of shared ownership
for patents.
Through all these changes, there was no discussion whatsoever of
teaching. There was no discussion of teaching, because teaching
has traditionally been non-replicable; it is evanescent, it can't
extend itself -- it hasn't extended itself outside the classroom,
outside what, in Ken Ziffren's business, might be called the "single
performance". That, of course, is what is changing now, and that
change is what is driving this conversation.
At the present time, various forms of technology, chiefly digital,
make teaching replicable, both across time and in space. At the point
of replication, the question of ownership and exploitation of teaching
suddenly becomes of great interest. As we begin that conversation,
then, we have two models available to us -- at least two models that
we can use. One is the model that is characterized in the University's
stance towards copyright, which has been essentially one of sole
ownership. The other, obviously, is some kind shared ownership; that
is the present stance towards patents.
So, this ought to be the beginning of a conversation about which
-- or what combination -- of these models will best serve the
interests of the University and its faculty as we move forward.
To begin that conversation, we have two distinguished and important
conversationalists. The first, Rory Hume is known to all of you.
What you may not know is two items of his biography, one somewhat
distant, the other more recent. The more distant one is that as a
member of UC's faculty before he assumed his present position, Rory
invented a patentable device. He's never disclosed to me what it
was, but he assures me it was patentable. I won't describe Rory's
experience with UC's patent mafia, but it was not a happy one, he
tells me. He has since then been looking for a better way for the
University to help faculty exploit intellectual property that has some
wider application. The other very recent piece of his biography, to
which Donna has referred, is that Rory has recently been appointed to
the University's standing Committee on Copyright, a position that has
great salience for our conversation. Rory Hume:
Executive Vice Chancellor W. Rory Hume
Good afternoon. I will not speak for too long at this stage. Like
you, I am eager to hear Ken Ziffren, who has true expertise in this
area. I am an enthusiastic member of the University community in
looking for ways that we can serve ourselves and our constituents --
our students -- both on this campus and elsewhere, more effectively
than we now do, particularly in the area of new technology. Donna and
Steve have both mentioned that I have recently become the Chair of the
systemwide standing Committee on Copyright. I am a member, also, of
the Council of Vice Chancellors, and at a recent meeting, the Provost
of the system pointed to me, saying, "All of our copyright problems
are now solved because Rory is chairing the systemwide Copyright Task
Force".
I do not share that sanguine view of the world. What I have done, is
inherited the work led by Michael Tanner. There was a group that was
generally called the Tanner Committee, which was an Administrative/
Senate group that came to a reasonably cautious if fairly ill defined
point of view about copyright, which has since become the University's
position on the issue. They finished their work about 18 months ago,
and dust is gathering already on that report. The technologies of
teaching, in particular, advance very rapidly, both the way we operate
internally and in the way we potentially operate externally -- for
profit for the individual, for the reputation of the institution, and
for the benefit of the world at large.
The systemwide Committee on Copyright has several areas of
responsibility, and we have gone so far as to define them before we
even met. They cover these five main areas:. Firstly, and in a way,
very important to many members of our community, are problems we are
having with scholarly communication. Not teaching-type communication,
but general scholarly communication. The fact that the journals
in which many of us choose to publish assume a type of ownership
of copyright as a condition of accepting our articles. They then
sell that material back to the world, including our libraries, at an
enormous premium. Our library system is suffering greatly from the
fact that we cannot afford to buy back the work that we give away to
the publishers. We are trying, both as a system and nationally, to
find ways to help ourselves as faculty to overcome this problem, so
that we can continue to distribute scholarly information.
The second and third areas are directly related to teaching and
today's topic. The exciting opportunities brought to us by web-based
technologies for the dissemination of education have really yet to be
well exploited by most of us. We are concerned about the potential
loss of our intellectual property, and we're not sure that we have
mechanisms to protect ourselves as faculty members, or for the
University to protect us as individual faculty members, or the
intellectual property rights of the group. We have been active on
this campus -- and successful -- in dealing with the problem of class
notes, where commercial enterprises are taking class notes from your
courses, posting them on the web, and selling access to them, without
your involvement or permission. UCLA has been a leader in aggressively
pursuing the rights of the individual faculty member in stopping
that practice. We like to have good class notes systems; we like to
have faculty involvement in vetting of those class notes; and so far,
we are achieving that well, without having to have legal cases or
legislation. Just by telling people what the policy of the University
of California is, and threatening legal action, we are succeeding.
We're still really, I believe, on very uncertain ground, in relation
to protecting the rights of faculty in the posting and dissemination
of class material -- not class notes that other people have taken
-- but class material that faculty have originated. I believe that
the University has an interest in encouraging and protecting faculty
members -- encouraging them to use this technology, and protecting
them from exploitation and theft. We are not good at that yet.
We haven't worked out really good ways to do that, and many faculty
are appropriately hesitant about placing their material in the public
domain via web-based mediums.
The fourth area that the University standing Committee on Copyright
has to look at is what is happening both legislatively, both at the
state and federal level. We have a wonderful immediate example in
the California State Legislature, where Gloria Romero, from East Los
Angeles, has introduced a very simple bill that says that intellectual
property related to the teaching of faculty members in the UC System
and the Cal State system is theirs and their alone. That sounds like
a terrifically simple and wonderful solution. For the first half of
a second when you hear that, you think "Oh, that's a good idea, that
does look after this".
The systemwide Senate, however, is opposing that bill because it
doesn't want the legislature deciding the internal business of
the University of California, and I think that is a very good thing.
We don't particularly want Gloria Romero's next bill to be when we
will teach or what we will teach -- and that is the risk, we think,
in that sort of approach. I think that the Senate's view is an
appropriate one: it is agnostic relative to the content, but it is
negative relative to the method of that bill. The standing Committee
on Copyright is there to advise the President and those who work for
the President, on behalf of the Administration and the Senate, on
responses to things like that.
Finally, the standing Committee on Copyright has a strong
responsibility, and I think an accelerating responsibility, in the
area of education of faculty about issues related to intellectual
property. I believe that as a group of faculty, we need to know more
about what the policy is of the University and what it should become.
We need to assess what we are doing, and to do the thing I began with
which is to encourage entrepreneurship by individual faculty, not to
discourage it, so that we will, in the future, do our job as educators
as well as we possibly can. That is my very brief description of
my upcoming responsibilities as Chair of the standing Committee on
Copyright.
I will finish by saying gently my own personal bias in this matter.
As an administrator, apparently, I am meant to want to grab
intellectual property from faculty. I find that I do not have that
instinct. My instinct is to protect, support, help, and facilitate
faculty in their use of new technologies. And when I was asked to
Chair the committee, I said to the Systemwide Provost, "You must
realize, Jud, this is the way I look at it". And he said "That's
fine, that's the way we all must look at it". How can we work
together best to utilize these new technologies in a way that is
of benefit to our students, whether they are onsite or elsewhere?
And how best can we help our faculty to protect their intellectual
property, in the same way that we do -- if we look at it carefully
-- in the matter of patents?
The Regents have primary ownership of patents. The Regents negotiate
licenses with patents. But the faculty share with the Regents the
benefits of their intellectual endeavors in a partnership that works
fairly well. It works fairly well, in theory, at the end point; it
works abysmally, in administrative progression towards that point,
in my view, and we're trying to resolve that in whatever way we can.
I do not think this necessarily has to be the model that will
succeed with copyright. I think we may well find something that
is simpler and far more to the side of the balance of the faculty
member as primary owner. But we also do want to, I think, harness
the collective strength of the University system in protecting and
supporting faculty members in their work. It is my pleasure now, to
stop, and to yield to Ken Ziffren, who actually knows something about
the subject.
Senate Vice Chair Yeazell
Our second speaker is a distinguished alumnus of UCLA School of
Law, who has recently returned to the School as a faculty member.
Kenneth Ziffren has made a legendary career for himself in a field of
intellectual property that in Los Angeles is known as "the industry".
I would be tempted to introduce Ken as the "Dean" of the Intellectual
Property Lawyers in Los Angeles, were it not for the fact that
introducing anyone to the Academic Senate as the Dean of anything may
set the wrong tone for the conversation. Ken's most distinguishing
characteristic as a practitioner, all will tell you, is to help get
people out of the corners into which they have painted themselves,
by enabling them to see the outlines of the deal in which everyone
will do well. That sounds like the right formula for this task. --
Ken Ziffren.
Ken Ziffren, Esq.
Thank you very much, Steve. Intellectual Property -- I took a
course in law school in copyright, and it was one of my worst grades,
so it hasn't changed since then. One other thing I should mention,
not apropos of this engagement, but my firm is involved with the
University, and others, in trying to put something together called
the Global Film School. So, in a sense, I am self-interested in the
subject matter here, and I wanted to mention that.
What I would like to do is talk or at least start the conversation
from somewhere around 40,000 feet up in the air and see if I can
get down to earth by the time I am done. In that context, I wanted
to make some observations. What we are looking at in dealing,
at least in no small part, with commercial aspects of ownership,
rights, and revenues, is all a function of a slightly alarming trend
(or maybe it's more than slightly alarming) in the country about
the privatization of the University. That to me seems to stem from
the fact that the Governments--federal and/or state--are basically
covering less and less of the cost of University education. I
believe, statistically, that state support for the University of
California system has gone from roughly 75% to 20% in the last 40
years. It has been supplanted and/or aided by charging higher fees
to students and others who use University facilities, and lately,
also by big philanthropic efforts that are going on in the University.
Here at UCLA, as an example, the last drive that took place in the
late 80s and early 90s, ended up, I believe, pulling in approximately
100 million dollars a year on a fairly steady basis as part of that
fund raising. The drive that is going on now, the "UCLA Campaign",
has a goal in effect of 200 million dollars a year that is needed for
the support and maintenance of the University and its denizens as a
whole. And, indeed, the people involved with the UCLA Campaign have
recently lifted their sights from a 1.2 billion dollar fund raise, to
1.6 billion dollars over an approximate 8 year period.
And where else does the money come from to support the goals and
aspirations of the University? I would submit to you that where we
are going now is basically part of a different trend, in which the
University is seen as an earner for its own benefit, so that there
is less reliance either on state funding, student fees, philanthropy,
or elsewhere. In certain respects, my own feeling is that we may
have gone too far in that direction. But let me move backwards twenty
years and bring you up to date.
There was a measure passed in Congress, sponsored by Senator Bayh
of Indiana and Senator Dole then of Kansas. The Bayh/Dole Bill,
around 1980, was a piece of so-called "breakthrough" legislation that
basically said that Universities may patent federally-funded research,
keep the proceeds, and later offered built-in tax incentives to
private industry to assist the Universities in doing that. According
to an article I just read in the Atlantic Monthly, called "The Kept
University", applications for patents have risen from 250 a year
since that time to 4800 a year today. The University became much
more commercial-minded as a result of the Bayh/Dole bill, and that has
brought with it some disturbing trends. One is that industries, in
dealing with Universities and in trying to produce products that were
patentable, started down a path where they became, because of their
funding capacities, the controllers of the research. They would
occasionally put restrictions on the report that a University would
commission or that professors would write, or do research on, for
their own commercial advantage. In many situations, the humanities
department was losing out to the tech world or to the engineering
world. And in other respects, there are concerns that we may be
becoming the wrong kind of "virtual University", -- one that offers
all kinds of digital diplomas -- and that we are losing sight of what
the University is all about. We had an experience here, I believe,
at the UCLA Extension a few years ago, involving a big fight about
who owned the copyright in a deal that was made between Extension
and a company now called Online Learning.com. There are other trends
where because of the needs of industry to try to focus the research
on immediate profit-making ventures, there may be some cost of
employment, meaning fewer teachers because of more mechanized ways of
doing things, or, indeed, fewer students -- fewer resident students,
that is -- because all they need to do is turn on the cable channel or
internet at home.
All of this, I just suggest to you is a dangerous framework to
walk into, but one that I think we all have to understand. In the
real world it is a pressing issue, and it isn't going to go away.
Corporate funding can be highly beneficial as well as potentially
pernicious, and I think what I'm looking for is to start again at
this 40,000 foot level, with the notion that the faculty has and the
University have an enormous interest in ensuring the integrity of the
work that is done, whether it is done for a corporate entity, or on
your own, or for the University itself.
That leads me to the second subject: the impact of the technologies
now available. Some of you are computer friendly, and some of you
may already be computer-literate. If you are, you may know that you
can now use the web to record virtually any song that has been written,
without being traced. This is good because we have more access
to more music. But it's bad if it doesn't reward the composer or
performer for his efforts. There is unprecedented opportunity now,
and there will be more in the future, for duplication, and in this
lies the core of copyright law, which prohibits duplication. (I am
using the word "duplication" -- not "copying" -- because I think it's
a 21st century word, while "copying" was a 20th century word.)
Another thing to consider in this context is that whoever owns
this material, or whoever is deemed to be the owner of this material,
may be entitled therefore to be a plaintiff in an action trying to
stop somebody from duplicating it, but that same person may also
be a defendant. The University, of course, is greatly and properly
concerned about the fact that as a distributor sending messages out
to the public, those messages themselves may offend or cause liability,
and the University then may become a defendant in an unwelcome
lawsuit. So, the holder of copyright, as both a potential plaintiff
and defendant, has an interest in trying to maximize income, and
at the same time, wants to try to minimize liability as much as
possible. And lest I forget, overriding all these issues, is another
extraordinarily important doctrine in copyright law, called "Fair
Use", which allows Universities, professors, and students to access
and use material for ostensibly non-commercial purposes without
liability.
The way I see it, this is a very delicate balance of interests. And
while there are analogies between the situation of the University and
the world of entertainment, I wonder if those analogies are proper in
a world with unmitigated potential for duplication. But let me try to
give you some analogies.
The four principal realms of the entertainment world are filmed
entertainment, the recording industry, the publishing industry,
and the stage. In the filmed world, by and large, with very few
exceptions, the financier of the product is the owner who controls
its disposition, may make changes in the product as seen fit, and
basically satisfies obligations to the creative persons involved
in that creation by payment. Occasionally, also, the financier
offers the creator publicity in the form of credits, but basically
the financial backer has control over that product. That is the
case for filmed entertainment. It is in a situation where there is
considerable risk money that has to be put up to make the product,
as well as a considerable amount of money lost on products that do
not succeed.
The recording industry is, in a sense, a step down from the situation
of film -- or a step up -- depending on how you're looking at
it. In the recording industry, there isn't as much capital that's
required for production. Our relatives or friends can go in the
garage, set up the necessary equipment, record their music, and sell
it to the highest bidder. But once it's sold, that distributor of the
music, has plenary authority over where and it goes and for how much.
Generally speaking, and interestingly enough, in the world of music,
the right to alter the product is much less of an issue -- except for
hate songs -- than it is in the world of filmed entertainment. In a
weird way, there is less censorship threat or control over the content
in the music world than there is in the world of filmed entertainment.
In the publishing world, you are kind of in between. It depends on
who you are. The same is true in the stage world. If you're the
author of a stage play, and you're working because you have leverage
under the Dramatists' Guild Agreement, then you'll control the words
spoken on the stage. The trade-off for that is you won't get any
money for creating those words, you'll only get paid on a performance
basis if the play works.
All of these analogies from the entertainment world -- and they are
all overly simplistic -- have characteristics that may be tempting to
apply to the situation of the University. I wonder how relevant all
those analogies are, especially when we start looking, for example,
at the fact that Steven Spielberg does not put up the money for his
films, but no one in that studio is going to touch one of Steven's
films. The same is true on the stage, whether it's a Neil Simon or
it's Berthold Brecht, once those words go on the page they go on the
stage, and no one plays with them except possibly to translate them.
The control, therefore, I am suggesting to you, while it may legally
lie in the hands of the financier as the copyright holder, in many
practical ways, is a myth. Steven, for example, contractually has the
ability to veto a license of his pictures to a pay television station.
He controls the timing of the home video; he controls the marketing
of the picture. That is contractual: that isn't about who owns the
product, but it is about who controls it.
There are two cases, for example, in the music world going on
right now that either threaten the core of the industry or may work
themselves out in other ways. One of them is a company called MP3,
the other is called Napster. The combination of those companies and
their byproduct -- a company called Gnutella -- has made it possible
for you to go on the Internet and either trade or access all the
songs ever recorded, and nobody knows you're doing it. Today, it's
not traceable. My consumption of those songs, assuming someone
is entitled to get paid for it, whether it's the publisher, the
performer, the composer, the record company, or so on, is lost in the
shuffle.
How is all this going to play itself out? And indeed, how does it
apply to all we're talking about today? As I said, when it comes
to copyright in relation to teaching and the University, and who
participates and who owns what -- you can lay down the rules, and it
can be simple. But I suggest to you that there are all these other
issues about control and the integrity of intellectual property. If
you are delivering or writing a lecture, do you want that lecture, in
essence, fed back to you five years later when the world has changed?
And when the world has changed, who does get to do the editing? Who
does get to do the update? Who has the right to that? It is this
kind of question that I think we should be dealing with, rather than
the naked issue of who owns what. And with that, I hope we can open
up to questions. Thank you.
Senate Vice Chair Stephen Yeazell
Professor Jonathan Post
Executive Vice Chancellor Hume Responds
Professor Ann Karagozian
But now, of course, as technology evolves, we have the potential
-- and I've seen it done in many units here on campus -- for putting
streaming video of faculty lectures on the web. So now we're reaching
the point where perhaps we're evolving from publishing to stage --
that is, where you have an individual performance at a given time,
and you're paid to film it, and where someone can then replicate
performance on streaming video and disseminate it, and this person
has the right to it. So, you've described how different entities
have different rights based on the particular medium. I think we're
running the gamut now with respect to educational dissemination, and
I'm confused: What are my rights? Should I beware and not put myself
on the World Wide Web in streaming video, or even undertake extensive
documentation to protect myself?
Ken Ziffren, Esq. Responds
Professor Michael Wilkes
Executive Vice Chancellor Hume Responds
Ken Ziffren, Esq. Responds
Executive Vice Chancellor Hume Responds
Senate Vice Chair Stephen Yeazell
Donna has said that we can have about 12 minutes more for general
discussion, if people have questions from the floor. If I can make
just one point -- it would be very helpful if the questions are
questions, rather than position papers -- there will be lots of
time for position papers as this conversation continues. Are there
questions from the floor? People should come forward and identify
themselves, and if there is a particular person they want to address,
please feel free to.
Professor Howard Besser, GSEIS
Ken Ziffren, Esq. Responds
Last year, 96% of the box office was earned by the major studios on
less than 20% of the number of pictures produced. So, there were
400-500 pictures out there, going into theaters that earned only 4%
of what was paid for tickets. That could be what will happen with
the Internet. On the other hand, we could see a really healthy series
of businesses grow up, where, with either the faculty or other groups
of your own representatives guiding you, you could try to maintain
control over the dissemination of your products in all these media.
At the same time, if you maintain control, you are also the defendant
when something bad happens, and I don't think you can avoid that fact.
Executive Vice Chancellor Hume Responds
I think that as a community of scholars, we must take such a stand
collectively; otherwise, we are cooked. And you've been facing that,
I'm sure, in the work that you've been doing. The AAU have a group
working on this issue, and the University of California will be one
of its first test sites over the summer and fall to see whether we can
agree collectively to say that to the publishers, and therefore change
the pattern. We don't see another solution.
Professor David Kaplan, Philosophy
Ken Ziffren, Esq. Responds
Professor Arvan Fluharty, Psychiatry & Biobehavioral Science
Ken Ziffren, Esq. Responds
Professor Ed Condren, English
I am directing my question to Rory. Rory, why is the University
not pursuing the following very reasonable strategy: saying, "Dear
faculty members, dear instructors, we're in this thing together. We
know you're not here to become millionaires. You wouldn't be faculty
members if you were. You are here because you are committed to your
field. We're in this thing together. What do you say we create
contracts, just for this specific thing, so that even if we're putting
your lecture on a repeater to the next classroom, you'll sign a form
giving us the right to do that?" Instead, we have all of these other
subterfuge "plans", and I don't understand why.
Executive Vice Chancellor Hume Responds
Professor Ed Condren, English
Ken Ziffren, Esq. Responds
Senate Vice Chair Stephen Yeazell
[End of Panel Presentation]
I would like to thank the panelists and the speakers, in particular,
for sharing their expertise. I would also like to thank Professor
Yeazell for organizing this presentation for us this afternoon.
end
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(Address appears in its entirety)
(Address appears in its entirety)
(Address appears in its entirety)
(Address appears in its entirety)
Thank you very much, Ken and Rory. We now have a few minutes, and
I've asked three members of the Senate's Executive Board and Council
of Faculty Chairs to open our discussion by posing a question
to either of the speakers: Anne Karagozian, from Mechanical and
Aeronautical Engineering, Jonathan Post from English, and Michael
Wilkes from Medicine.
This is really directed towards Rory. It goes back to the
Romero Bill. The question I have is that, while I understand the
University's diplomatic decision not to support the bill, there
still seems to be a significant difference between the Tanner report
statement in all its murkiness, versus the kind of clarity of the
Romero statement. And I wonder whether there is a place where the
systemwide Senate committee is going to come out and say, while it's
not officially supporting the Romero Bill, it certainly agrees with
and believes in the notion of the faculty owning the copyright of its
course material.
I can't predict what the systemwide committee is going to do when it
addresses this. It obviously hasn't met since Tanner concluded, and
Romero has come in the middle. I think there is not only going to be
the problem of legislation intruding very firmly into the way that we
conduct our business, there are other problems as well: the bill, as
I read it, didn't address such issues as who would be liable were the
faculty member to break some law in the preparation of material. Is
it the employer or the faculty member?
I have been using World Wide Web home pages for the classes that I
teach at UCLA for the past five years, and I began by putting course
assignments as well as solution sets on the web in Postscript and
PDF formats for students to innocently download. I have realized
recently, of course, if I should dare to assign a problem out of a
text where there is a published solution and I do not put certain
password protections on my web page, any student from any university
can download that, and I can make myself liable to all kinds of
horrible consequences. So as a result, I put password protections on
my web pages.
I believe that the world in which the University resides with its
faculty -- while there are analogies to the entertainment world and
what happens in its various contract negotiations and structures
-- I think this is a world unto itself. It is different because of
the bbbpublic interest in the dissemination of material and the need
for critical analysis in the world of the University, which normally
doesn't take place in the world of entertainment. People don't
criticize each other's works in the world of film or music, at least
not in public (there are a few film reviewers, but put that aside).
The Fair Use doctrine is really not present when you copy a film
and put it out as your own, and change the title, or something like
that. The burden of my speech, is to present the perspective that
the situation of the University is a different situation than anything
else, and it should be handled in a different way. We can follow
the broader principles that are usually involved in other areas, but
I don't see the situation of the University as "being on all fours"
with that of any other field. The different issues involved here,
not present in the purely commercial world, call out for different
solutions. I'm not here to suggest what those should be.
My question, perhaps, is best directed to Dr. Hume. It involves
taking the analogy of thinking from "several miles up" and bringing it
right down into the trenches. My question is this: As our faculty are
involved in all kinds of creative endeavors -- from CDs to streaming
video, etc. -- where are we right now? What should the faculty be
doing? Where can they turn for advice while these committees and
think tanks are considering this issue? And what should we be telling
our faculty?
To put it bluntly, we have moderate expertise on campus in these
areas. Our campus attorneys are generalists; we don't have any
specialists on intellectual property. As we rebuild the Tech Transfer
operation -- as we rebuild our intellectual property services --
we will obviously embrace this. At the moment, we don't have that
special expertise. What we have to offer is our general campus
counsel who then punts stuff up to the Office of the President's
counsel, who sometimes will outsource for advice, but sometimes will
try and answer. It's something, but as a system we really are not
very good with intellectual property issues. Every case is different;
every faculty's interest is different. We simply have to do the best
we can today. We have to devote additional resources to the effort --
regrettably, because this means we can't use them for other things.
We really must put additional resources towards building intellectual
property expertise on this campus.
Let me add to that, even though the question wasn't addressed to me.
There is absolutely no doubt in my mind that whatever counsel you are
getting is a guess. It is only an educated guess, because there are
no rules. I can't state that loudly enough -- there aren't any rules.
We're dealing with old Common Law principles and trying to apply them
now in a multimedia world, and it's left everybody kind of behind.
We're all trying to catch up, using the Common Law and the common
sense that we have. There has been a great deal of legislation passed
by Congress and the state legislatures in the last few years, trying
to deal with these issues. They didn't know what they were doing.
They were talked to by various lobbyists who had certain provisions
that they wanted for their clients. When you look back at legislative
history on any of this, you will find it a blur, and that's what the
judge has to decide when he or she is facing one of these intellectual
property cases. It's basically an educated guess, no matter how good
it is.
I think one of the best assets that we do have, which I should have
mentioned earlier, is the creativity of our own faculty. Several
groups within disciplines here at UCLA have addressed issues related
to web-based dissemination of materials and have come up with
excellent solutions. There are various e-publishing activities going
on, and some of them are based in the University of California system.
There is a systemwide group of ISOP-like scholars who collectively put
some material together and went to the Regents, in effect, and said,
"Please, we give you the copyright so that you can protect what we've
done, collectively". That was the decision of that group of faculty.
The committee that I'm taking over will consult vigorously with these
people to find out what they are doing and what they are going to
be doing, so that we can disseminate that information for everyone's
benefit.
Let me exert the moderator's prerogative for half a second to say
that, in the murky swamp of intellectual property law that Ken
describes, the copyright owner has to be either us, or the University,
or some combination. That's very important because it means that if
we can figure out what we want to do collectively, we can make the
rules for the University, and those rules will be enforced as a matter
of contract. So, we're in a position where we can figure out how it
ought to work, no matter how it might be interpreted as a matter of
Common law.
I'm with the School of Education and Information Studies. I've
spent much of the last two years on a National Academy of Sciences
panel dealing with intellectual property, and we've just released a
report, called "The Digital Dilemma". One of the themes that comes
up repeatedly in any discussion of intellectual property is that
straight-forward solutions to copyright issues have, in fact, some
pretty onerous implications, if you do more than scratch the surface.
Given the fact that faculty ownership of intellectual property seems
almost like "mom and apple pie", and everyone agrees that it's very
important, how do we avoid some of these more onerous implications
down the road? Particularly, how do we keep our intellectual property
from becoming a commodity and a whole economy from growing up around
it, so that we have the kind of situation that we're in today with
journal articles, where we have to sell our own rights. We own
the rights to our articles, but we have to sell them in order to be
published, and then we can't even get some of our articles back to
hand out to students in our classes. Our libraries are suffering from
this. How do we avoid this kind of situation?
I don't think it's going to be easy, but I do think there is an
enormous opportunity. Each of us with any kind of knowledge of
the web can be a distributor of our own products, and we can hire
companies to distribute our creations and still retain control of them
at the same time. What's happened, unfortunately, and I don't know
what's going to happen in the digital world of the future, but what's
happened now in the filmed entertainment world, is that eventually the
cost of development and production grow to be so staggeringly large
that only a few companies can afford to carry out these activities.
As a result, there's vertical integration in the entertainment
industry. And, to some extent, that deprives the struggling
independent of some autonomy or ability to reach the public.
It was interesting listening to Ken's answer about the entertainment
industry. It sounds very much like the case of the publishing
industry, where a few publishers have control, take your copyright,
won't let you have it back so you can disseminate your materials
to your class, and we can't afford to buy them for the library.
I'm serving on a national panel trying to come up with a solution
for that problem, and I think that the only solution is for all of
us, as a community of scholars, to say, we won't do that. "I'm sorry,
I will not sign away my copyright. I require that, firstly, I have
rights to distribute my materials to my students. Secondly, that they
are distributed to my fellow scholars in this format for X period of
time". Or we can say that "You can have it exclusively for two years,
but thereafter it moves into the common domain".
This is a small point on the point that you made. Many, many years
ago, I was advised by a colleague in the Law School that my copyright
was my birthright and I should never give it away. And, since that
time, whenever I've submitted anything for publication, I've said
"Look, you don't need the copyright. You only need the right to
publish it in this form, and to do this and that". And I've said
"This is all you're going to have, and I'm going to retain the
copyright", and I don't have the slightest trouble with any journalist
or publisher anywhere. I don't know whether this is simply a question
of scholars not testing this, because people just say, "Oh you have to
give them your copyright, because they've sent you a letter that says
please sign this piece of paper". I don't know whether publishers
actually do say, when you ask them, "No, I'm sorry, in that case,
we're not going to publish your piece", but maybe somebody knows that.
I'm trying to get you to ignore that issue. What I'm trying to
suggest to you is that it doesn't matter who owns it, it matters
who distributes it, and who shares in the proceeds. Look at the
substantive questions; don't look at who holds the naked copyright.
Right now in all of Hollywood, none of those companies holds the
copyrights to the movies that they've financed. They're all in what
I'll call "trusts", because the banks are putting up the money to
finance most of the films, and the banks need that copyright as
collateral for those loans. Now, that has nothing to do with the fact
that Paramount owns that picture, and unless it bankrupts itself, it's
going to distribute that picture for 150 years, (95 years exclusively
and then it will fall into PD, unless the law changes again). So,
the issue of the copyright itself is not as important, I'm suggesting,
as what the deal is, and who controls what, and who shares in what
rights.
Where do student works fit into this overall program? I'm in the
habit of having my students prepare web sites as part of their
academic material. Should I make this available? Or should I protect
it? Should I not make it available generally to the public, or should
I allow it to go out?
I think that password protection is probably the way to go. The other
thing that's happening that is also kind of wild is that we're moving
towards technologies that actually will be able to trace uses, clicks,
and mentions on line. There are several companies that are developing
technology involving audio "watermarks", so that if any "watermarked"
song is played anywhere in the world on any website, it will send back
a buzz saying it was just played by this guy and here's his URL address.
So, Big Brother cuts in both directions.
I appreciate Stephen suggesting just a few minutes ago, that
copyright, when it's resolved, is either going to be owned by the
faculty, owned by the University, or a combination of a two. And this
reminds me of the four analogies that you were giving, Mr. Ziffren.
But the difference, and it's enormous, between those four worlds and
what we're facing here, is the fact that those four are all under
contract. Now, there is significant apprehension among the faculty
that the University is trying to do, whatever will be done, without
contracts. First, we have the "Tanner Report", which created the
absolutely absurd suggestion that all that faculty really do is
"perform" their material, and that's all they're entitled to -- the
single performance. The "stuff" they perform is, in fact, owned by
the University. Then, there was a second attempt by the University
to explain some things that were consequent upon the contract of
the off-campus group that you talked about, that said, "No, no, no,
here's what it is: The faculty member certainly owns the copyright to
his materials, lectures, and so forth. The only thing the University
retains is the right to market and distribute them". That's absurd!
It's like my saying, "Yes, you certainly own your house. I'm
simply retaining the right to rent it to these other people". It's
impossible.
It sounds eminently sensible and reasonable, and I hope that such
an approach will work. If you want the University collective to
work with you on a million-dollar production that you are going to
disseminate around the world, let's cut one sort of deal; I think
that's fair. If you're going to send it on a repeater to the next
classroom, let's do another.
Fine, but the culture has always been to create a policy, which in
the opinion of the University, can, of course, supersede federal law.
I think all of the state laws that Mr. Ziffren refers to derive from
an understanding of the federal law. The federal law says that the
originator owns the copyright to his works -- to what he's created --
and everything else is a contract derived from that.
I would just suggest that you look at this: the federal law says
whoever negotiates for the copyright gets it, so the copyright is no
more than a contract, a deal point, along with everything else. You
can define the copyright as anything you want. You give me worldwide
perpetual distribution rights, and I'm happy. The issues are what you
negotiate and how those come out, not who holds title.
It seems to me that the last set of exchanges has demonstrated the
point that all of the questions have, which is that this is not the
end, but the beginning of a very important conversation. Let me close
by thanking all of our panelists who were very thoughtful and very
helpful.
Senate Chair Donna Vredevoe