THE
The University Faculty Senate
AGENDA
Tuesday, February 3, 1998, at 1:30 PM in
112 Kern Graduate
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THE FACULTY AFFAIRS COMMITTEE AND
THE SENATE COMMITTEE ON RESEARCH
Report of the Ad Hoc Committee on
Computer Aided Instruction and Learning
(Advisory and Consultative Report)
Introduction
In July, 1996, Dean John A. Dutton, chair of the Ad Hoc
Committee on Computer Aided Instruction and Learning delivered the final report
of the Ad Hoc Committee, Computer-Aided Instruction and Learning at
The Senate committees appreciate the efforts of the Ad Hoc
Committee on Computer Aided Instruction and Learning. The Ad Hoc Committee’s
study and Final Report represent an important evaluation of the vision for the
future of instruction as many pedagogical elements migrate to computer-aided
platforms. Many of the issues impacting the development of CAI projects are
significantly different from general experience with traditional print products
and textbooks. Correspondingly, a variety of diverse viewpoints on contractual
and entrepreneurial matters relating directly to CAI are offered for
consideration in this Senate Advisory and Consultative Report. The Senate
committees provide additional advice and consultation to the
The Senate committees make the following recommendation.
Recommendation
The Faculty Affairs Committee and the Senate Committee on Research recommend the Faculty Senate accept and support the three major conclusions of the Ad Hoc Committee on Computer Aided Instruction and Learning.
Recommendations of the Ad Hoc Committee on Computer-Aided
Instruction and Learning (Dutton Report) July 15, 1996
Recommendation
1. In order to encourage preparation and use of computer-aided
instruction materials,
* facilitate faculty efforts by providing appropriate work assignments, equipment, facilities, and professional assistance
* recognize faculty success in the traditional mannerthrough an appropriate combination of tenure, promotion, and salary compensation.
Recommendation 2. The University should claim a partial ownership in computer-aided instruction materials developed by faculty or staff members with the aid of more University resources than those normally afforded a faculty member. If a faculty member or a group of faculty members requests or receives University resources in the form of workload adjustments, special computer equipment, or staff resources, to develop computer-aided instruction materials, then the rights and ownership shares to the material should be established at the beginning of the project and adjusted if additional resources are required.
Recommendation 3. The many issues that arise when computer-aided instruction materials are appropriate and attractive for commercial exploitation should be resolved through case-by-case negotiations involving the faculty members, support organizations, and academic administrators. The preparation of formal project development and project business plans will help to reveal and resolve the key issues. Once costs are recovered, the faculty developers should receive at least half of the revenues and the University units involved should share the remaining portion as specified in the project development plan, with part of this portion used to provide for negotiation and enforcement of contracts with external parties.
Characteristics of
Computer-Aided Instruction Projects which Impact Faculty
CAI development projects are generally very costly. Many are envisioned to include stunning graphics and cutting-edge programming. Such CAI projects require significant financial investments and the integration of expert development work from various fields: from inside the knowledge domain, from a pedagogical effectiveness perspective and from supporting areas such as CAI programming and visual arts. CAI design and development efforts are likely to be very time consuming, requiring significant investments of faculty author’s time and energies, sometimes at the expense of their other instructional, research and service activities. Update investments are also likely because successful CAI products in many fields must be kept competitive. It is expected that commercially successful CAI products will likely be sponsored by prestigious universities and developed by faculty with national reputations in their fields (domain experts).
CAI projects are also likely to be developed for distribution outside the sponsoring university. Some of these projects may take the form of "partnerships" among faculty authors, universities, independent publishers and third party CAI consultants. Publishers can be expected to provide financial investments, expert reviews by potential adopters, marketing expertise and distribution to adopters. CAI consultants may provide graphics arts and programming.
CAI projects are often considerably more complex than the development of traditional textbooks and the supporting ancillary materials. Marketable CAI products will probably require teams of software developers and graphic artists. CAI projects will likely utilize considerable computer and communications equipment (PCs, web servers, Internet lines). Many CAI designers envision that a single project would require the orchestration of hundreds, even thousands of "elements" of content from newly authored and existing material, print, audio and visual representations and entertainment. Some elements will be created by the CAI designer while the rights to use other elements must obtained under permission from their original owners, often third parties.
The contracts for such complex products will also be complex. Indeed, a series of parallel agreements have been envisioned for some of the projects initiated at Penn State and will include several separate publication agreements with each faculty author, lead contracts between a university unit and an independent publisher, sub-contracts with graphics artists and programmers, and numerous permissions for use of copyrighted video, audio or for the display of registered trademarks. CAI agreements will likely constitute a "bundle of contracts" which more closely resemble an assemblage of movie or other media contracts than they will resemble publication agreements for traditional print products.
Standardized contractual agreements with the major software companies, for development of multi-media projects, are quite complex. However, similar agreements for college-level CAI projects are still in their infancy. Administrators coordinating CAI development efforts will likely need flexibility in devising workable publication agreements. There will probably be some uncertainty in this regard until standard form contracts eventually emerge. Among the Penn State CAI projects surveyed for this advisory and consultative report, it would appear that standard form contracts have yet to develop.
Ownership of Authors’
Intellectual Property Rights
The Ad Hoc Committee’s Final Report makes a commendable recommendation that faculty authors participate in joint ownership with the University of the CAI development. In projects for development of traditional print educational materials, faculty authors seldom retain ownership of their work. Publication agreements commonly transfer ownership of copyright to the publisher before development begins. It can be expected that in CAI projects, the extent of participation by third party developers and publishers will also impact the sharing of ownership. It seems likely that in projects with substantial third party involvement the publisher will demand transfer of all ownership rights. Therefore, faculty authors can expect significant restrictions on their own use of the content developed specifically for the CAI product. Faculty may be restricted from further development of derivative works using either their form of expression in the CAI project or any innovative electronic pedagogical methods specially designed for the CAI project.
Attribution of
Content Authorship
Many commercially available CAI projects provide limited or obscure disclosure of individual domain content authorship. Indeed, a major advantage often touted for university sponsorship of CAI is to primarily feature the university’s name recognition, goodwill and prestige to enhance marketability of the project. Such "brand name" prominence necessarily subjugates the attribution of individual authors, programmers, pedagogical designers or graphics artists, particularly in the larger, team-developed CAI projects reviewed by the Senate committees.
CAI Product Revision
Rights
The rights of CAI product ownership may be intimately intertwined with rights to use and revise to keep current. Many CAI authors interviewed envision frequent, even real-time revision and enhancement to their products. Projects not clearly permitting these updates or subjecting updates or upgrades to delay from extensive approvals may actually compromise the marketability as well as the professional reputations of faculty authors and sponsoring universities. The contracts among faculty authors, universities, CAI software developers, graphics artists, publishers and distributors should address reasonable revision rights. Contract provisions should balance all the parties needs to revise, update and continue marketing if the CAI product is to remain successful. The revision rights discussed here are generally held by the copyright owner. Publication agreements for traditional print contracts occasionally give faculty domain authors certain rights to participate after the publisher’s decision to revise and authors usually have rights to accurate attribution and some moral rights.
Non-Competition
Restrictions in CAI Contributor Agreements
Multi-media and CAI development projects hold the potential to severely limit contributors freedom to participate in later print or CAI projects and may actually limit their traditional employment mobility. Later projects involving an author’s domain expertise (core competence) could be argued to compete with the first CAI project. This is potentially a much more comprehensive restriction on competition than is usually imposed in contributor agreements for traditional print media. It poses the threat of restricting faculty authors from developing CAI or traditional print projects within their "core competencies" in which they do their primary teaching and research.
At least two factors combine to create this new and perhaps unanticipated restriction in CAI publication agreements. First, it seems likely that the non-compete clauses which publishers may insist on including in CAI agreements may restrict the faculty author from participating in other CAI or print projects covering the faculty member’s core competence. Second, copyright ownership, standing alone, grants the exclusive right to commission derivative works from the original author’s expression. In those CAI projects where the copyrights are held by publishers or the university (or its CAI sub-units), faculty authors could be restrained from participating on later projects to develop instructional materials in nearly any other medium (e.g., print rights, audio rights, all electronic rights (digital and analog) including CAI, multi-media, video).
The extent of this "preemption" to prevent the author’s future projects will probably depend on at least two major factors. First, the breadth of the non-competition provisions in the author’s initial CAI project will control the author’s future project participation. Publication agreements for instructional materials on traditional print projects historically had much narrower restrictions and were fairly well understood by faculty authors. Several of the CAI project agreements reviewed expand traditional restrictions and are therefore unfamiliar in the experience of most faculty print project authors. Second, the reasonableness of procuring consent from the copyright owner (publisher and/or university), to permit a faculty author an exemption from the non-competition provision, thereby allowing the author(s) to participate in future projects within related domain areas, is not predefined. Non-competition provisions and decisions by copyright co-owners of CAI products will impact the future activities of faculty in projects utilizing their core competencies more broadly than under traditional print project restrictions. When a faculty author enters a CAI publication agreement, that project could be the only outlet for the author’s publication of instructional materials in the core subject matter. Such a restriction could continue perhaps for that faculty’s CAI project participation at any university and persist for the duration of the copyright, effectively for the remainder of the faculty author’s career.
University sponsored CAI projects permit university administrators to specify many contract terms including these restrictive covenants. The new environment for negotiation of CAI contract terms creates surprise for many faculty authors. Eventually, faculty authors will become aware of this newly restrictive landscape and can be expected to resist participation on CAI projects, compromising the innovation expected.
If CAI agreements raise the potential to reduce faculty mobility it would be inappropriate for university sub-unit administrators overseeing CAI projects or for university administration generally to pressure faculty to sign CAI authoring and development contracts. Contracts containing restrictive covenants that could foreclose faculty from participation in later CAI development projects at other universities would reduce their professional publication and mobility. This would ultimately compromise forthright participation in CAI projects generally.
Implications of
Predicting Technological Changes on University Policy Making
The Ad Hoc Committee’s Final Report and this Advisory and Consultative Report necessarily view CAI prospectively. No one can accurately predict how the CAI revolution will impact either traditional intellectual property rights or incentives for instructional innovation. Nevertheless, to the extent either of these reports may influence CAI policies, these reports should provide the most reasonable guidance possible irrespective of the ultimate direction of the CAI evolution, at least over the near to medium term. Senate policymakers should strive to confine policy recommendations to the most reasonable of universal principles, those adaptable to a range of potential outcomes.
This predictive dilemma can be illustrated by examining the controversy over how CAI will impact the market for instructional materials in the traditional print media. Some CAI advocates predict that CAI will soon cause the "death of print" suggesting all textbooks and exercises go on-line, on CD-ROM or be delivered by other electronic devices. Critics of this viewpoint argue CAI will be restrained by various ergonomic difficulties and random access constraints on the electronic assimilation of information. In another example of divergent CAI predictions, some knowledgeable observers predict that web-based instructional materials will soon be costless and freely available world-wide. This "public domain" conception of CAI would obviate the need for traditional publishers, print wholesalers and even most bookstores. However, an equally compelling observation contends there is developing a useful infrastructure for electronic commerce. If successful, this machinery will permit delivery of instructional materials on a "pay-per-view" basis. This latter scenario would preserve and create for publishers, universities and third party developers of software and graphics the status of financial gatekeepers to the dissemination of knowledge.
Technology Disturbs
Traditional Balance of Intellectual Property Rights
Technological change may produce a realignment of intellectual property rights. Publishers of traditional print educational materials are experimenting with CAI to maintain their dominance over the delivery of instructional materials. Many existing publication agreements for print products have transferred only the rights to ownership of print copyright and have not transferred electronic rights to the publishers. Traditional print publishers appear to be scrambling to acquire electronic rights to both old an new content. When existing content is adapted to first generation electronic products in experimental CAI projects publishers are modifying the existing authoring agreements to include electronic rights. New authoring agreements for print and CAI projects can be expected to unequivocally include a transfer of all electronic rights from the author to the publisher.
Traditional
Print-Based Instructional Materials Absorbed into Ownership and Control
Policies Designed for Patented "Inventions"
Three major circumstances are coalescing to stimulate a
shift in the primary ownership of instructional materials. First, many
universities are revising copyright policies.
Abrupt changes in control, ownership and financial incentives suggest concomitant change in incentives and product quality. Greater incentives suggest more and higher quality work while diminished incentives suggest less innovation and lower quality. University policymaking should assess the impact of these incentive changes and use this policy making opportunity to enhance the incentives for creative endeavor and innovation. In the University’s predictable desire to enhance its financial returns, policy makers should not lose sight of optimizing the incentives for development of instructional materials because this can directly benefit student learning. The opportunity to modify ownership of instructional materials as they migrate to new platforms (e.g., software given patentable status) should be balanced against the need to enhance development of new materials and thereby enhance the overall learning environment.
The traditional policy of university ownership of patent rights was largely justified because the Universities provided unique investments, facilities and opportunities to conduct research duplicable only in "sponsored research settings." The Ad Hoc Committee’s Final Report provides for a parallel apportionment of ownership rights in CAI products. The Report recognizes the University’s partial claim of ownership arises when substantial additional university investments are made specifically for the development of CAI projects in equipment and infrastructure. The Senate committees have heard significant criticism on the imprecision of the terminology used to define this substantial additional investment: "with the aid of more university resources than those normally afforded a faculty member." Computer equipment, communications facilities and expert CAI consultation services offered to faculty varies considerably around the University. However, it can be expected that key CAI projects organized by University sub-units are likely to offer at least some additional resources. Such projects will likely use the publication agreement with faculty authors to claim partial ownership as triggered by the project’s furnishing of additional University resource investment. If the University fails to claim at least some ownership or at least a "shop right" to use the CAI product, grave injustice to students could result. Retention of a "shop right" to use instructional materials developed and tested at University locations is critical to responsible stewardship of University innovations. However, the implementation of "shop rights" could become problematic for subject matter or interactive process that require frequent updating if the faculty authors are unwilling, unable or unavailable to update.
Interactivity may be the key to differentiating instructional materials of the traditional "passive" print variety from materials developed for CAI projects. This parallels the distinction between unpatentable mere "ideas" found in a copyrightable form of expression from the patentable character of a process. CAI has a greater probability than traditional print to establish a set of process steps to achieve learning. Therefore, CAI products are more likely to convert mere copyright protectable forms of expression into the patentable realm because CAI projects will likely include unique steps to enhance the learning process.
CAI Policies Can
Enhance Authoring Incentives for Creativity and Innovation
The establishment of CAI policy may be very important for
the future of higher education. The tone of the Ad Hoc Committee’s Final Report
appears to presume that
Hurried Efforts to
Conceive and Implement CAI Projects
Most faculty authors, university administrators and
traditional publishers of instructional materials are inexperienced in
successful contracting for the development, testing and proprietary delivery of
"college-level" CAI projects. Participants might be expected to rely
on the considerable experience of authorship contracting for traditional print
media. However, there are reasons to doubt this experience provides realistic
guidance. First, CAI projects sponsored by units of universities represent a
"new paradigm" in the development, financial and resource
underwriting and marketing of CAI "products." This implies University
experience in such matters is only beginning to accumulate. Second, evidence
was presented to Senate committees from
Conclusion
In sum, CAI contracts are relatively newer to academia than authoring contracts for traditional print product. Until an equilibrium in standardized contract forms stabilizes, there will be much experimentation. It can be expected that some versions of these contracts will tip the balance of intellectual property rights in ownership, control and financial benefits away from the mix of rights as previously experienced by faculty authors in traditional print projects. University policies should seek a reasonable balance of these rights and duties among all participants in CAI projects to encourage optimum participation and innovation. Participants should become aware of the special new problems triggered by CAI projects and proceed in good faith and with some caution to respect the value of innovation by all parties supplying meaningful involvement.
SENATE COMMITTEE ON
FACULTY AFFAIRS
Albert A. Anderson
John C. Becker
Melvin Blumberg
Meredythe M. Burrows
James M. Donovan
Amy K. Glasmeier
Margaret B. Goldman
Elizabeth A. Hanley
Catherine M. Harmomonky
Andrea Mastro
Louis F. Milakofsky
Murry R. Nelson, Chair
Amy L. Paster
Robert D. Richards
Victor Romero
Robert Secor
Valerie N. Stratton
James B. Thomas
Tramble T. Turner, Vice-Chair
Robert Zelis
John W. Bagby and Derek Elsworth (members of the 1996-97 committees and co-authors of this report )
SENATE COMMITTEE ON
RESEARCH
James B. Anderso
Richard N. Arteca
Charles E. Bakis, Vice-Chair
John F. Cardella
C. Michael Comiskey
Rodney A. Erickson
Irja Haapala
Thomas N. Jackson
Ernest W. Johnson, Chair
Leslie A. Moller
Mark H. Munn
Jonathan Phillips
Michael D. Platz
Lawrence I Sinoway
Jane S. Sutton
Kristi L. Watterberg
Susan Welch
Frederick M. William
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