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  • Committee A on Academic Freedom and Tenure | AAUP
    Responding to Financial Crisis You are here Home Committee A on Academic Freedom and Tenure Academic Bill of Rights Report discussing the Academic Bill of Rights at its potential impact on academic freedom Read more about Academic Bill of Rights Financial Exigency Academic Governance and Related Matters Report discussing AAUP policies concerning the role of the faculty in budgeting in good times and when an institution must deal with a financial crisis Read more about Financial Exigency Academic Governance and Related Matters Academic Freedom and Tenure City University of New York Report discussing the decision made by the central administration of the City University of New York and deals with the issues of academic freedom due process collective bargaining and national security Read more about Academic Freedom and Tenure City University of New York Academic Freedom and Tenure Meharry Medical College Report dealing with issues of faculty with primarily clinical duties financial exigency due process academic freedom tenure and faculty government at Meharry Medical College one of four historically black medical schools in the United States Read more about Academic Freedom and Tenure Meharry Medical College Academic Freedom and Tenure Benedict College Report dealing with academic freedom tenure and administration directed grade changes at Benedict College Read more about Academic Freedom and Tenure Benedict College Academic Freedom and Tenure University of the Cumberlands Report dealing with resignation dismissal and academic freedom at Cumberland College a religiously affiliated institution Read more about Academic Freedom and Tenure University of the Cumberlands Recommended Institutional Regulations on Academic Freedom and Tenure Regulations outlining recommended institutional processes that enable institutions to protect academic freedom tenure and to ensure academic due process Read more about Recommended Institutional Regulations on Academic Freedom and Tenure On Collegiality as a Criterion for Faculty Evaluation Report addressing the increasing tendency

    Original URL path: http://www.aaup.org/import-tags/committee-academic-freedom-and-tenure (2016-02-13)
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  • Looking the Other Way? Accreditation Standards and Part-Time Faculty | AAUP
    ensures that only qualified and effective adjuncts are hired and retained and there is ample evidence that where parttime faculty are evaluated at all methods are divergent and unreliable 10 None of the accrediting groups acknowledges that the evaluation of a tenure track colleague is rather different from the professional assessment of a part time colleague who may be on campus only two or three hours a week The Middle States commission asks for evidence that criteria for the appointment supervision and review of teaching effectiveness for part time adjunct and other faculty are consistent with those for full time faculty Without mentioning faculty specifically the North Central commission supposes that the organization s mission vision values goals and priorities should help it choose the self study and evaluation processes that afford the greatest value 11 Dependence on Part Time Faculty With 68 percent of college faculty holding non tenuretrack positions an institutional dependence on contingent faculty might be expected to set off warning signals for accreditors 12 As noted accreditors generally do not distinguish between tenure track and non tenure track full time faculty With regard to part time faculty only one agency offers direct guidelines table 4 The New England commission requires that the institution avoids undue dependence on part time faculty adjuncts and graduate assistants to conduct classroom instruction While the inclusion of the guideline is distinctive exactly what constitutes undue dependence is left to the institution to determine The Southern commission instructs that the use of part time faculty should be judicious In a rare reference to part time faculty the North Central commission holds the organization responsible for program integrity regardless of faculty status General education must be valued and owned by the organization whether its courses are created purchased or shared whether faculty are full time parttime or employed by a partner organization 13 For other accreditors instructional priorities are valued and owned by the faculty whether their employment is full or part time The Western junior commission states this position with clarity the institution relies on faculty expertise for quality of programs The Southern commission allocates responsibility in a similar way saying that the institution places primary responsibility for the content quality and effectiveness of its curriculum with its faculty At least one accreditor holds institutions directly responsible if they choose to build programs largely on the backs of adjuncts The greater the dependence on part time employees writes the Middle States commission the greater is the institutional responsibility to provide orientation oversight evaluation professional development and opportunities for integration into the life of the institution The Northwest commission advises a candidate institution to demonstrate that it periodically assesses institutional policies concerning the use of part time and adjunct faculty in light of the mission and goals of the institution 14 While only the New England commission cautions specifically about a dependence on adjuncts most accreditors recommend that institutions employ sufficient numbers of full time faculty The Western senior commission statement is typical of these relatively weaker guidelines While avoiding a reference to adjuncts it acknowledges the possibility of limits on part time appointments The institution demonstrates that it employs a faculty with substantial and continuing commitment to the institution sufficient in number professional qualifications and diversity to achieve its educational objectives to establish and oversee academic policies and to ensure the integrity and continuity of its academic programs wherever and however delivered 15 A reference to out of class responsibilities in the New England commission handbook acknowledges that faculty do more than transfer knowledge in the classroom Institutions using adjuncts who are hired only to appear for class and disappear thereafter may not fulfill New England s requirement that there should be an adequate number of faculty whose time commitment to the institution is sufficient to assure the accomplishment of class and out of class responsibilities essential to the fulfillment of institutional mission and purposes The Western senior commission insists that institutions should employ at least one full time faculty member for each graduate degree program offered Both the Western junior and Middle States commissions want a core of full time faculty that is responsible to the institution For the Northwest commission the faculty must be adequate for the educational levels offered including full time faculty representing each field in which it offers major work Likewise the Southern commission requires an adequate number of full time faculty to support the mission of the institution and to ensure the quality and integrity of its academic programs 16 The North Central commission s handbook includes neither a discussion of faculty status nor a statement on institutional commitment There are no written guidelines in fact precluding a faculty that is 100 percent part time Indeed having accredited a for profit institution the University of Phoenix as early as 1978 the North Central commission seems more comfortable than other accrediting agencies with a redefinition of higher education itself Its commissioners for example see little need for old fashioned one on one faculty student interaction Mentoring and advising once thought to be primarily a faculty task may now be found throughout an organization particularly in the student services area Throughout its handbook the North Central commission presents itself as receptive to a corporate model of higher education In the introduction to one of four major accreditation criteria Acquisition Discovery and Application of Knowledge the commission employs a term popularized in the late 1950s by corporate management strategist Peter Drucker Computers may have introduced the Information Age but in a short time our definitional language for this new era began to include the term knowledge worker The shift is as important as it is misunderstood While admitting that knowledge worker is a jarring term for some in the professoriate the North Central commission feels confident that the juxtaposition of these two words says something important to the academy and to students Those of us in the academy may rightly be jarred by the substitution of the term knowledge

    Original URL path: http://www.aaup.org/AAUP/comm/rep/accredpt.htm (2016-02-13)
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  • The Status of Non-Tenure-Track Faculty | AAUP
    per week for the academic institution but had a combined workload of forty four hours from all jobs compared to fifty three hours per week averaged by regular full time faculty Although part time faculty are employed at institutions of all types the greater the emphasis the institution places on research the smaller the percentage of part time faculty it is likely to employ These figures conceal within them however the reliance of research institutions on graduate student assistants to teach introductory courses About 17 percent of the total faculty in the prestigious research universities are part time faculty At doctoral and comprehensive universities combined the percentage of part time faculty goes up to 26 4 at comprehensive institutions alone part time teachers constitute 29 8 percent of the entire faculty 5 At liberal arts colleges the part time figure rises to 32 6 percent At the two year institutions the percentage of part time faculty reaches 52 1 percent of the total faculty Public research universities employ proportionately fewer part time faculty than private research universities though the actual numbers are greater in the public than in the private universities because the public universities are so much larger Of the 119 000 faculty members at public research universities only 14 4 percent are part time of the 53 000 faculty members at private research universities 21 7 percent are part time Although university faculties may have lighter teaching loads and a heavier research emphasis the data indicate that an institution s commitment to graduate programs and research is likely to reduce the institution s reliance on non tenure track faculty These universities utilize graduate students as teachers but the ratio of tenure track to non tenure track faculty suggests that public research universities are more likely to have a stable faculty of full time professors than are institutions in other categories The distribution of full time non tenure track appointments also varies significantly by type of institution Private research and comprehensive universities lead with about 13 percent and 12 percent respectively in full time positions classified as nontenure track or for which tenure is not available Public doctoral and comprehensive universities are close behind with 10 4 and 10 percent respectively Liberal arts colleges a category that includes most of the four year institutions that lack tenure systems have 11 4 percent of faculty in full time non tenure track appointments Almost 13 percent of liberal arts faculty are at institutions that do not have systems of tenure 25 percent of the public two year faculty and 71 percent of the relatively small number of private two year faculty are at colleges that do not offer tenure Almost 90 percent of all faculty members are at institutions that have tenure policies Almost all non tenure track faculty are in the lowest ranks About 90 percent of all full time lecturers and nearly 50 percent of all full time instructors are nontenure track Among part time faculty slightly more than half 52 7 percent are employed at the instructor rank while another quarter 27 6 percent are employed either as lecturers or with miscellaneous titles or none at all More than 27 000 part time faculty members are employed at the senior ranks of associate or full professor and almost 10 percent are full professors Part time faculty are disproportionately female Although men are the majority of part time faculty in all categories of institutions women constitute about 42 percent of the part time faculty compared to 27 percent of full time faculty Viewed from another perspective 43 2 percent of women faculty members work on a part time basis while just under 30 percent of male faculty do so 6 Between 1975 and 1985 the percentage of women on the tenure track went from 18 3 to 20 7 percent while the percentage of women in non tenure track positions rose from 33 6 to 40 3 percent 7 The gender disparity is greater fully two to one for non tenure track positions where 29 4 percent of female full time faculty members hold positions off the tenure track compared to only 14 7 percent of men The number of male part time faculty rose 10 3 percent between 1975 and 1985 the number of female part time faculty rose by 54 1 percent during that same period 8 The rapid growth in non tenure track appointments of women has had little if any effect on the number of full time women on the tenure track It is also disturbing to find that although similar proportions of white and African American faculty members are found at institutions without tenure systems 9 1 and 10 2 percent respectively the proportion of African Americans in non tenure track positions 15 2 percent is more than 50 percent greater than that of whites 9 6 percent Degree status is an important factor in part time employment Overall part time faculty are much less likely than full time faculty to hold doctoral degrees 29 percent vs 67 percent In four year institutions 55 percent of part time faculty hold a doctorate in comparison to 89 percent of the full time faculty Similarly fewer than 25 percent of those faculty off the tenure track hold Ph D s compared to 60 percent of tenure track faculty Doctoral or professional degrees are held by 28 6 percent of the part time faculty while 48 9 percent either have master s degrees or have taken other graduate study In public two year institutions fewer than 20 percent of either full or part time faculty have a doctorate or comparable professional degree Full time and tenure track faculty are also substantially more likely to have published in the two years preceding the survey Some 21 percent of part time faculty and 53 percent of full time faculty reported publishing at least one refereed article chapter or book over the preceding two years The difference in expectations regarding publication and publication rates is substantial between research and doctoral institutions where publication may be a professional expectation and two year colleges where it may not be Recent trends indicate that some tenure track faculty are being moved to non tenure track positions This shift is especially prevalent in medical colleges and other areas in which clinical and research faculty are employed 9 Numerous institutions have moved toward the use of five year renewable contracts to replace tenure track appointments for faculty members who are not primarily classroom teachers such as researchers clinicians laboratory managers and librarians The growth of outside grants to fund research has also produced an increasingly large number of faculty members whose appointments are tied to the duration of the grant and who are not eligible for tenure in their institutions Appointing nonteaching clinical and research faculty to non tenure track positions is often justified by an institution on the grounds that nonclassroom personnel do not need academic freedom The AAUP s Special Committee on Academic Personnel Ineligible for Tenure considered this matter and determined that all full and part time faculty who are employed by the institution in contrast to those doing contract work sponsored by an outside agency including those whose responsibilities include only research and not instruction have academic freedom and should receive the protection of the Association Only researchers housed in universities but funded by outside agencies may fall outside the protections of tenure The growing trend to place research and clinical faculty of the institution on temporary contracts weakens academic freedom The public suffers accordingly Job security benefits and opportunity to advance are the three working conditions that most divide non tenure track faculty from their tenure track colleagues Fully half of the full time non tenure track faculty expressed dissatisfaction with their job security compared to 34 percent of tenure track and 3 5 percent of tenured faculty Satisfaction with job security fell to 43 percent for part time faculty Almost 80 percent of part time faculty were satisfied with their assigned workload in comparison to 73 percent of full time faculty Only 24 percent of part time faculty were satisfied with their opportunities to advance as compared to 58 percent of full time faculty Women were less satisfied than men in all categories and markedly more dissatisfied in their sense of the opportunity to advance 38 percent and 51 percent respectively Lomperis s study found that among recent Ph D s those received between 1981 and 1986 in the 1987 labor market two thirds were seeking full time work Her study indicates that new Ph D s are much less satisfied to be part time than is the group as a whole which includes all age brackets and types of degrees Many institutions prorate benefits for faculty members who have at least half time twenty hours appointments Forty two percent of part time faculty who worked more than twenty hours a week reported that the benefits surveyed were available to them compared to only 11 percent of those who worked fewer than twenty hours a week 10 The figure fell from the overall average of 42 percent for faculty members working more than twenty hours a week in two year public institutions Only 16 percent of faculty members working more than twenty hours a week at two year public institutions have access to medical insurance and only 12 percent have access to life insurance Many non tenure track faculty members labor under conditions that hinder the professional quality of their work Lack of office space or basic equipment is a common problem that plagues their efforts to prepare course materials and meet with students Non tenure track faculty are typically ineligible for research or travel funds and those who are part time substantially more so Many institutions that require regular evaluation of tenure track faculty lack any process for reviewing the performance of part time and full time non tenure track faculty members This absence of incentives or rewards for performance speaks bluntly to the marginal status of non tenure track faculty within these institutions To be off the tenure track in an institution that has a tenure system also usually means being outside the structure of faculty governance and for most part time faculty outside the bargaining unit in those institutions where there are faculty unions Only 10 percent of part time faculty are protected by collective bargaining as opposed to 23 percent of full time faculty The majority of faculty union contracts cover only full time faculty 11 Not surprisingly the exclusion of non tenure track faculty members from the rewards system and the governance structure leaves non tenure track faculty powerless and isolated Since their attainments and abilities do not accrue toward promotion or tenure non tenure track faculty are often invisible within their departments There is little evidence to support those who hope that their accomplishments off the tenure track will result in consideration for a tenure eligible appointment Part time positions are not regularly converted to full time and non tenure track faculty seldom receive any priority consideration when their positions are upgraded Typically when a non tenure track position is converted to the tenure track the department advertises nationally The teaching experience of non tenure track faculty members in the pool of local applicants may be interpreted as evidence of failed promise when measured against new Ph D s who are just entering the market Indeed some part time faculty who continue to teach in an effort to sustain a professional life while seeking full time employment are bitterly disappointed to find that the fact of working part time may be taken as a sign that they are not serious about their careers It is essential that the extent and nature of non tenure track instruction be a central consideration in reviews by accrediting bodies Some accrediting agencies do recognize the connection between the professional conditions for faculty members and the quality of education offered by the institution The Middle States Association of Colleges and Schools now urges that criteria for the appointment of part time or adjunct faculty and their supervision should be comparable as far as possible to the full time faculty and that provisions for review of teaching and opportunities for professional development should be available 12 The Western Association of Schools and Colleges WASC requires a core of full time faculty to support each program 13 The influence of accrediting agencies professional associations and collective bargaining agreements can strengthen efforts to improve the stability and professional development of part time faculty The AAUP is concerned about institutions which persist in practices that undermine or destroy the stability of tenure and academic freedom including practices that exploit non tenure track faculty Institutions that rely heavily on non tenure track faculty members to teach undergraduate students undermine the institution s respect for teaching and the reputation of higher education in the larger society Institutions exploit faculty members when they appoint numerous part time faculty in a single department or renew temporary faculty members year after year without offering them raises in pay access to benefits opportunities for promotion or eligibility for tenure There are legitimate uses of part time appointments for example to meet unexpected increases in enrollment or faculty vacancies to provide service in a specialized field or to develop a new academic program However the extensive use of part time positions or extended temporary appointments has become habitual in too many institutions Basic instructional responsibilities should never depend on faculty who are denied professional consideration and who are exempted from the evaluations that are essential for maintaining academic standards Guidelines for Improvement Improving the professional status of the growing number of non tenure track faculty members is difficult in financially hard times and unpopular with most administrations and many faculty members Still the AAUP believes that the long range health of higher education requires that institutions greatly reduce their reliance upon non tenure track faculty members and that faculty members who are appointed to part time positions should be extended the benefits and privileges of the academic profession The AAUP s position about full time faculty is clear With the exception of special appointments clearly limited to a brief association with the institution and reappointments of retired faculty members on special conditions all full time faculty appointments are of two kinds 1 probationary appointments 2 appointments with continuous tenure 14 The possibility of tenure for part time faculty should also be an option when the need for less than full time work extends indefinitely Administrators often oppose tenure for part time faculty because it constrains the budgetary flexibility that makes non tenure track appointments attractive to them Some part time faculty members oppose tenure for part time faculty because they fear it would eventually result in the termination of their own services Non tenure track faculty members who usually lack research support often worry about standards of judgment that measure them against tenure track faculty members who engage in research The 1980 AAUP report on part time faculty recommended 1 that some part time faculty members should be eligible for tenure 2 that security of employment for part time faculty include regularized appointment practices reasonable notice and access to the institution s regular grievance procedure 3 that part time faculty should participate in academic governance and 4 that the compensation and fringe benefits of part time faculty should be equitable perhaps including prorated compensation and equal access to benefits The report s recommendation that those individuals who as their professional career share the teaching research and administrative duties customary for faculty at their institution but who for whatever reason do so less than full time should have the opportunity to achieve tenure and the rights it confers 15 echoes that of the 1973 report of the Commission on Academic Tenure in Higher Education a study jointly sponsored by the AAUP and the Association of American Colleges Although some institutions have moved in the direction of tenure for part time faculty and several are negotiating tenure eligibility as part of collective bargaining agreements others have developed long term contract arrangements Extended term appointments or seniority based security gives part time faculty members greater appointment stability Stability of appointment opens the way for the fuller integration of part time faculty into the academic profession Only 6 percent of institutions offer tenure to any part time faculty but 22 percent of research universities and 17 percent of doctoral universities report having some tenured part time faculty Institutions need continuity in their faculty and contract arrangements that provide security to part time faculty ameliorate the problems inherent in an unstable work force Institutions which habitually employ many part time and temporary full time faculty members should calculate how many full time faculty equivalents they routinely need and begin converting their non tenure track positions to full time tenure track lines Whenever possible the regular academic instruction of students should be the responsibility of faculty members who are responsible for the curriculum and participate in the governance of the institution and to whom the institution is willing to make the commitment of tenure In order to address the growing use of non tenure track faculty the AAUP calls on institutions to work toward achieving the following goals Institutions should limit reliance on non tenure track faculty We recommend as guidelines that institutions limit the use of special appointments and part time non tenure track faculty to no more than 15 percent of the total instruction within the institution and no more than 25 percent of the total instruction within any given department In circumstances in which an institution has legitimate needs for a specialized class of faculty in part time or fractional time positions the institution should have policies that provide for their long term contract stability and for tenure The consolidation of non tenure track faculty full and part time into full time

    Original URL path: http://www.aaup.org/AAUP/comm/rep/nontenuretrack.htm (2016-02-13)
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  • Compensation and Workloads (2003) | AAUP
    that part time faculty appointments not be based as they commonly are solely on course or teaching hours Activities that extend well beyond classroom time including maintaining office hours participating in collegial curricular discussions preparing courses and grading examinations and essays should be recognized AAUP Faculty Workload Statement Relatedly AAUP recommends that the additional governance responsibilities assumed by tenured faculty because of the increased use of contingent faculty need to be recognized in institutional workload policies for full time faculty t he increased reliance on various types of non tenure track faculty has added to the workload of tenured and tenure track faculty who must assume additional administrative and governance responsibilities Id c Some Recent Developments Most part time professors or adjuncts generally are not compensated for their non classroom time Clawson v Grays Harbor College District No 2 The Washington State Supreme Court ruled that part time faculty at community colleges in the state were exempt employees under the state minimum wage law and therefore were not entitled to overtime wages The part time faculty argued that they were not salaried but hourly employees because in part the colleges compensation arrangement did not pay them for their non classroom work such as office hours but for credit in class hours only Under the collective bargaining agreement they are paid based on the number of credits or contact hours multiplied by the bargained for monetary rate The agreement further provided that compensation includes payment for work outside the classroom including office hours The court ruled that the compensation arrangement voluntarily entered into by each part time community college instructor qualified them as professional employees exempt from overtime pay under state law 61 P 3d 1130 Wash 2003 But see CUNY PSC Collective Bargaining Agreement Adjunct professors who teach two three credit courses or more will be paid for an additional professional hour The hour can be spent to engage in professional assignments related to their academic responsibilities such as office hours professional development participation in campus activities and training There are approximately 7 250 adjuncts in CUNY who earn between 53 and 63 a credit hour it is estimated that salaries will increase for some 24 percent of adjunct faculty The university system s chancellor stated that the pay raise will encourage adjuncts to spend more time with students outside the classroom Thomas Bartlett CUNY Adjuncts Win an Extra Hour s Pay for Work Outside the Classroom The Chronicle of Higher Education July 2 2002 www psc cuny org contract96 htm 3 Office Hours The issue of faculty office hours or the perceived lack thereof has recently captured public attention Boston University In the late 1990s the administration of Boston University established a faculty Tenure Discussion Group which recommended a number of policy changes including that faculty members spend at least four days a week on campus The recommendation reportedly engendered much rancor on campus Robin Wilson It s 10 00 a m Do You Know Where Your Professors Are The Chronicle of Higher Education Feb 2 2001 Such a one size fits all policy may be insensitive to differences among disciplines in the academy English professors often work at home or late at night because they need uninterrupted time to write History professors often work in research libraries Professors in the sciences are often in the lab not their campus offices working with graduate students Some examples of institutional policies on faculty office hours include Northwestern University Faculty members should hold regular office hours For students whose schedules conflict with the instructor s posted office hours opportunity for consultation by appointment should be provided www northwestern edu provost faculty handbook pdf James Madison University Each faculty member is responsible for maintaining office hours These hours should be staggered from day to day to accommodate students and other faculty members A schedule of office hours shall be posted and carefully followed to avoid confusing and discouraging students who may desire conferences Each full time faculty member shall post a minimum of five regular office hours per week and should be available during other hours by appointment New River Community College In order to promote the availability of faculty to work with individual students each full time faculty member is required to post on or near his her office door a minimum of 10 hours per week as office hours to be available to work with students on their individual academic and occupational problems Office hours should be posted for each day of the week www nr vccs edu nrccfamily handbook secfbook htm Some administrations have mandated faculty virtual office hours Stevens Institute of Technology Professors are required to respond to all online student e mail within 48 hours www stevens edu main home Cleary College All professors are asked to electronically acknowledge all student questions and assignments within 24 hours www cleary edu See Young Online Teaching Scholars who have studied asynchronous learning argue that such time requirements for faculty responses to student e mail can be counterproductive S ome of the best professors will avoid virtual teaching if they think it will chain them to their computers seven days a week Id II Faculty Compensation Faculty compensation subsumes a myriad of legal and policy issues including merit pay external grant support salary reductions and market forces salary compression and salary equity A Merit Pay M erit pay has played an increasingly important role in academic life since the 1980s Denise Marie Tanguay Inefficient Efficiency A Critique of Merit Pay in Steal This University 49 Benjamin Johnson et al eds 2003 hereafter Inefficient Efficiency A recent survey by the College and University Professional Association for Human Resources indicates that approximately 34 percent of administrations use merit pay systems CUPA HR 2000 2001 National Faculty Salary Survey Washington D C CUPA HR 2001 1 What is Merit Pay Merit pay refers to the practice of allocating annual salary increases to individual faculty members based on the quality of their performance The practice ideally encourages faculty members to devote their efforts to some combination of teaching research and service activities in accordance with the institution s mission thereby strengthening the institution and enhancing the benefits gained by students and society A fundamental difficulty arises from the unquantifiable nature of the quality of teaching research and service Lee Hansen Merit Pay in Structured and Unstructured Salary Systems Academe 10 Nov Dec 1988 see generally November December 1988 issue of Academe the theme of which is merit pay Designing merit pay systems in higher education is a challenge There are difficulties with the use of systems like merit pay in higher education First to be effective outcomes and established performance standards must be identified yet in knowledge based institutions like colleges it is often quite difficult to specify the desired product For instance what is an appropriate performance standard for teaching that can be established in advance to allow for the implementation of an effective merit system A percentage of students receiving a certain grade A specified rating based on student evaluations Should the measures vary depending on whether the course is required a new offering or a large introductory lecture Unlike a widget factory some educational results can resist the level of specificity required in a true merit pay system which can result in a greater reliance on more quantifiable products but ignores arguably equally important matters like quality of impact Kathryn M Moore Marilyn J Arney Making Sense Of The Dollars The Costs And Uses Of Faculty Compensation35 ASHE ERIC Higher Education Report 5 1993 Professor Tanguay raises a number of questions about the efficiency and perceived effectiveness of merit pay at colleges and universities including Does the merit pay system distort the mission of colleges and universities because m erit pay reward s a narrow set of goals particularly those that are measurable number of journal articles published external dollars brought into the institution in grants and perhaps student evaluations of the faculty member s courses Does the very nature of academic work make the design and implementation of a successful merit pay system difficult if not impossible Especially when facing draconian state budget cuts do the economics of merit pay work in higher education when merit pay systems are often imposed while cutting across the board cost of living increases or merit pools are often so small as to fail in really rewarding professors whose work is rated above satisfactory She concludes that there is very little evidence that the merit system can be implemented within most colleges or universities with fairness and positive outcomes for the institution Tanguay Inefficient Efficiency Some questions to be addressed in designing a merit pay system include What are the criteria and who sets them Who applies the criteria to individual cases What is the size of the merit pool and what is the range of individual merit increases What portion of compensation is merit as opposed to other components such as cost of living adjustments Are merit pay decisions appealable and if so to whom 2 Some Case Law on Merit Pay Merit pay is not only a contentious policy issue on campus but often fodder for litigation Claims challenging merit payments or lack thereof arise in a variety of legal contexts including First Amendment discrimination and breach of contract law a First Amendment Hollister v Tuttle Portland State University Michael Hollister a tenured professor of English successfully sued his university for violating his First Amendment rights when it denied him merit pay increases Hollister asserted that he was denied such increases because he spoke out publicly against feminist criticism of male writers in American literature and against feminist courses in the English Department The federal appellate court found that the professor s speaking out on educational policy was protected speech and that to deny him merit increases in retaliation for that speech was unconstitutional 210 F 3d 1033 9th Cir 2000 Power v Summers Vincennes University In 1997 another federal appellate court allowed a case to proceed to trial on whether Vincennes University a two year public university in Indiana violated the First Amendment rights of three professors by awarding them low merit increases The faculty members asserted that they were awarded merit increases of only 400 compared to an average increase of 1 000 because they were outspoken on issues of faculty salaries The professors sought a judicial injunction commanding the university to raise their base salaries to reflect the merit increases they would otherwise have been awarded The university concede d that these so called merit raises were actually used to reward faculty who were combating dissension and divisiveness according to the court The court observed that the lower merit increase not only reduced the fringe benefits the professors would have received had they gotten a higher raise but will reduce their future salaries for by being added to the base salary the amount of the merit raise will be paid in all future years to those faculty who were granted it In allowing the case to proceed to trial the court concluded that the professors claims survived because in part it could not say that denying a raise of several hundred dollars as punishment for speaking out is unlikely to deter the exercise of free speech 226 F 3d 815 7th Cir 2000 Harrington v Harris Texas Southern University Another federal appellate court considered whether a merit pay plan in the law school of Texas Southern University a public historically black institution violated the legal rights of three tenured white professors The professors claimed in part that they received lower than expected merit increases in retaliation for exercising their free speech rights which included writing to various university officials seeking the dismissal of a law school dean participating in a no confidence vote to remove the dean and complaining to the American Bar Association about the university s refusal to dismiss the dean On the one hand the court rejected the professors First Amendment retaliation claim finding the case merely a dispute over the quantum of pay increases The court noted however that i f Plaintiffs had received no merit pay increase at all or if the amount of such increase were so small as to be simply a token increase which was out of proportion to the merit pay increases granted to others we might reach a different conclusion On the other hand the court accepted the law professors argument that their low merit increases constituted race discrimination because the faculty members presented evidence that the administration failed to give white professors equal credit and consideration for their work which caused black professors to receive higher merit pay increases than those received by their white counterparts 118 F 3d 359 5th Cir 1997 b Discrimination In addition to Harrington v Harris race discrimination discussed above other courts have also examined whether merit pay systems are discrimatory Kovacevich v Kent State University Special education professor Dorothy Kovacevich sued Kent State University claiming salary discrimination based on her gender A jury agreed and on appeal the federal appellate court ruled that sufficient evidence existed for a jury to have found that her lower salary was a result of gender discrimination The university argued that any differences in salary between Kovacevich and her male colleagues were due to the school s merit system and across the board percentage increases Kovacevich s evidence however persuaded the appellate court that gender discrimination was imbedded in KSU s merit pay system The court noted that rather than a neutral system of merit based on anonymous peer evaluations the merit award system was driven largely by an opaque decision making process at the administrative level that did not necessarily reflect peers assessment of applicants performances and rewarded men disproportionately to women In addition the court cited a faculty report which stated that it is extremely difficult to demonstrate the connection between peers professional judgments of meritorious performance and the size of the merit awards 224 F 3d 806 6th Cir 2000 California State University The California Faculty Association the statewide faculty union for the CSU system produced a study reporting that women professors are on average awarded 8 percent less in merit pay than their male colleagues A fact finding panel made up of faculty and administration representatives recommended in January 2001 that the CSU faculty merit increase program be suspended because it appears to be ill conceived and poorly administered See also Alison Schneider Faculty Union at California State U Charges That Merit Pay System Favors Men The Chronicle of Higher Education July 21 2000 c Breach of Contract Meyer v University of Akron A tenured professor of management made a number of legal claims including that denial of merit pay increases breached his contract set out in the university s business college faculty manual The manual provided that salary adjustment may be reduced to zero depending on the faculty member s performance When the professor received negative evaluations he was awarded no merit increase The court found no breach of contract 2002 WL 31989165 Oh Ct Cl 2002 Sack v North Carolina State University A tenured history professor Ronald Sack filed a grievance against his department chair for failing to award him academic enhancement funds which were given to 50 percent of the faculty members in the history department Sack claimed that the chair deliberately overlooked him for personal reasons Merit increases were to be awarded based on a number of criteria including number and quality of recent publications and the likelihood of the professor s being recruited from other schools A faculty grievance committee ruled that the professor s request for a merit increase had been handled properly although it suggested that if the department chair had better explained his evaluation methods the grievance might have been avoided The president and the board upheld the faculty committee s findings but the state trial court vacated the board s order It required the department chair to list all history faculty publications and assign points to each and if Sack was in the top half of the list then it should be determined that he had been treated unfairly The court also ordered that the grievance committee in its reconsideration not consider the age of any faculty member or any other factor besides publications and that the Chancellor shall accept the recommendations of the Grievance Committee The university appealed and the state appellate court reversed the trial court The appellate court found that the grievance committee properly weighed the evidence in reaching its conclusion that the denial of merit increases to Sack was not based on personal malice 574 S E 2d 120 N C Ct App 2002 See generally Donna R Euben Judicial Forays into Merit Pay Academe 70 July Aug 2003 3 Some Recommendations on Merit Pay Merit pay as a salary strategy can be of academic benefit only if it motivates faculty to improve their performance Harold Barnett et al Coping with Merit Pay Academe 19 22 Nov Dec 1988 In the end if merit pay plans are adopted we need to work to make them less opaque and more transparent Such transparency will be achieved in part by ensuring that salary enhancement programs have clear objectives incorporating faculty peer review committees into the process developing and implementing policies by peers applying criteria for such increases consistently and fairly and ensuring that merit pay criteria are not used to squelch the speech of faculty See generally Tanguay Inefficient Efficiency B Some Medical School Experiences with Faculty Compensation The financial pressures facing many higher education institutions have been especially acute in medical schools Billy Goodman Fiscal Constraints Threaten Tenure at Medical Schools The Scientist May 11 1998 www the scientist com yr1998 may goodman p1 980511 html Those financial pressures have triggered cost cutting efforts that have led to litigation by professors against administrations Thus the medical school experience provides a helpful

    Original URL path: http://www.aaup.org/issues/faculty-compensation/compensation-and-workloads-2003 (2016-02-13)
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  • Copyrights and Wrongs | AAUP
    articles cannot normally be treated as work for hire Statement on Copyright AAUP Policy Documents Reports 183 9th ed 2001 c To the extent that a classroom is controlled by the administration however the work for hire analysis would change Thus departmentally designed courses were there is a prescribed syllabus or course content may not belong to the teacher The extent that a course would be considered work for hire is tied directly to the amount of independence given the faculty member 1 In Hays v Sony Corp 847 F2d 412 7th Cir 1988 for example even when the federal appellate court concluded that t he universal assumption and practice was that in absence of an explicit agreement as to who had the right to copyright such writing belonged to the teacher rather than to the college or university it noted that we may set to one side cases where a school directs a teacher to prepare teaching materials and then directs its other teachers to use the materials too d Note too the conflict of commitment issues here Even if classroom lectures are generally considered the property of the faculty and faculty are presumed to have the right to take them when they leave the institution the advent of distance education has led to questions of exactly when concurrent teaching for example would violate understandings of faculty time commitment Arthur Miller a well know professor at Harvard Law School became involved in a controversy with Harvard University after he provided videotaped lectures for the Concord University School of Law an on line law school without Harvard s permission The controversy clearly raised intellectual property concerns As Miller posed the query How much of Arthur Miller does Harvard own It also raised the issue of how conflicts of commitment policies apply to online education or electronic moonlighting As one commentator noted A pplication of these general conflicts of commitment policies in the Internet era is not straightforward Why for example would the videotaping of a series of lectures for an online institution interfere with one s teaching and research responsibilities if giving a series of off campus lectures would not Jonathan R Alger A Miller s Tale Free Agent Faculty Academe Bulletin of the American Association of University Professors May June 2000 6 Syllabi Ownership of syllabi depends on control of the outcome Generally faculty have control of the substance of their syllabi and are presumed to have ownership of that syllabi However some institutions argue that institutions exercise more control over the content of syllabi than they do over books or articles the courses to be taught topics that must be covered and the overall offerings of the department Institutions often require for example that certain provisions or disclaimers be included in syllabi that syllabi be posted on the web etc Thus some argue that faculty are hired to teach that teaching and the by products thereof are thus within the scope of employment and this additional control by the employer institution could transform syllabi into work for hire a Williams v Weisser 78 Cal Rptr 542 Cal App 1969 professor has ownership of lectures discussed above Such ownership would presumably have extended to the syllabus for that class under the Weisser reasoning b But see Vanderhurst v Colorado Mountain College District 16 F Supp 2d 1297 D Colo 1998 A professor and clinician in Veterinary Technology worked for Colorado Mountain College CMC on a series of annually renewable employment contracts for 22 years before being dismissed for misconduct As part of a lawsuit regarding the dismissal he claimed that CMC infringed his copyright to a Veterinary Technology Outline which was created in the course of teaching at CMC The court noting that CMC s policies state that a faculty member s duties include program and curriculum development and course preparations concluded that the outline belonged to CMC as a work for hire It reached this conclusion despite recognizing that it is undisputed that Vanderhurst prepared the Outline on his own time with his own materials However there is no genuine dispute that Vanderhurst s creation of the Outline was connected directly with the work for which he was employed to do Note however that Vanderhurst was not a tenured or tenure track professor Moreover he eventually won his lawsuit against the university regarding his dismissal The copyright issue was not raised or discussed in the appeal but the appellate court upheld Vanderhurst s victory on the dismissal claim Vanderhurst 208 F 3d 908 10th Cir 2000 Course descriptions Course descriptions are another grey area While they represent an area where a faculty scholarly approach to a subject they might also be subject to control and thus ownership by the university More than syllabi and lectures course descriptions prepared for the course catalog for example must follow certain strictures Often institutions control the length style and even content of such postings Moreover faculty are required to create descriptions of their courses in order for students to be able to enroll arguably supporting the argument that such descriptions belong to the institution as works for hire Again however even in such a situation while the institution may own the description of a course created for that particular catalog that does not mean it owns the course itself or the course content F Special issues Students Works by students as students are entitled to copyright protection and belong to the students a Faculty need to get permission from students to copy and distribute their works just as they would any other copyrighted work Some faculty address this issue by having students sign a waiver at the beginning of the class Works by students as employees are works for hire a To the extent students are being paid for work they do their work is work for hire This payment could take forms other than strict salary like tuition reimbursement etc Again however the only work covered would be that directed by the employer and related to the employment If a paid graduate assistant also does scholarly work during the time as a graduate student that scholarly work would still belong to the student G Practical considerations The copyright rules are vague so don t just assume ownership Be aware of your institutional polices Are they clear Are they realistic Are they drafted in ways that work practically with the goals of the institution and activities of scholars Contract around the rules if they don t work for your situation a In any project that seems unusual consider whether a separate contract might be useful Work up front at setting ownership and expectations especially on lucrative projects joint works grants special university driven projects etc before the project is completed It is much harder to do it after the fact V Using the Works of Others A General Issues to Consider Scholars are both creators and users of copyrightable material As you use your colleagues work so too are they using yours Would you be comfortable with your work being used in the way you are using the work of others Infringement of copyright is not to be taken lightly Legal responsibility for copyright violations can be both direct and indirect Thus not only are individuals responsible for the direct copying they do but they may be legally responsible even if only contributing to someone else s copying infringement if they act knowingly and make a material contribution to the infringement The copyright laws also contain significant penalties for copyright infringement even if there are no real damages suffered by the victim Attribution while an important part of use and citation of others work and important for avoiding plagiarism concerns is not a protection against copyright infringement claims Remember use of any copyrighted material is a violation of copyright UNLESS it falls into one of the enumerated exceptions discussed below B Fair Use Fair use is a statutory exception to the general rule of copyright ownership It affects or limits not who is considered the author and copyright holder but rather the rights of that copyright holder The doctrine provides that no matter who owns the copyright certain uses are not considered a violation of that copyright a The fair use exemption was initially judge created law it evolved from case law It was eventually codified in 17 U S C 107 during the 1976 revision of the Copyright Act and is now a statutory exception Notwithstanding its now codified status the fair use exemption is still vague and unclear depending on the specific facts and circumstances Because of this lack of precision fair use analysis can be extremely frustrating As one court put it the doctrine is so flexible as virtually to defy definition Time Inc v Bernard Geis Assoc 293 F Supp 130 144 S D N Y 1968 The fair use analysis is based on two basic concepts the purpose of the use and the fairness of how that the work is used a Purposes The fair use doctrine says that copying for certain purposes will not be considered a violation of copyright because there are certain purposes where copying betters society 1 The statute sets out a non exclusive list of purposes that are assumed to be of benefit to society and thus eligible for fair use protection While this list does not include all possible fair use purposes it can be viewed as setting out a premier set of uses that deserve preferred status in the application of fair use See Robert A Gorman Copyright Law Federal Judicial Center 1991 2 This preferred list includes uses crucial to faculty such as criticism comment teaching scholarship and research which form the basis for most of the classroom and research copying faculty do a This list however is clearly illustrative not exhaustive Note for example that the two Supreme Court cases addressing this issue Harper Row Publishers v Nation Enterprises and Sony Corp of America v Universal Studios Inc do not seem to follow this list Harper dealt with news reporting one of the enumerated factors but was found not to be fair use and Sony dealt with private videotaping of television programs a use clearly beyond the preferred list yet was found to be fair use see further discussion of cases in IV B 6 below It is this particular provision that makes fair use the legal basis for much of classroom use of copyrighted materials 3 The list of purposes includes use not only by citation or reference but also by reproduction in copies including multiple copies for classroom use It is this particular provision that makes fair use the legal basis for much of classroom use of copyrighted materials b Fairness Factors The fair use analysis does not stop at the list of enumerated purposes however Courts also look at the way the materials are used for that purpose The use must be fair The statute sets out four factors for courts to consider in determining whether a use is fair use 1 The purpose and character of the use which includes whether it is a commercial use or an educational and or non profit use a The general rule is that commercial use is presumed not to be fair use See e g Sony Corp of America v Universal City Studios 464 U S 417 1984 I f the intended use is for commercial gain the likelihood of future harm may be presumed 1 The idea is that if someone is profiting from use of a copyrighted material the copyright holder should be benefiting from that use 2 The Nature of the Work a This second factor is designed around the idea that there should be greater access to works of fact or information The point of the copyright law is to increase public knowledge by encouraging creation of information and thus factual informative materials are more likely to be subject to fair use than purely entertainment based materials b This factor also can implicate the availability of the work If the work is somehow unavailable out of print never reproduced etc then this aspect of its nature would make it more likely to fall under fair use c Unpublished works would also receive special consideration under this factor The rights of the author to control the distribution of the work and its presentation would weigh more heavily against a claim of fair use if the work had never been published than if it had already been made available See Harper Row 471 U S 539 1985 1 Note however that the drafters of the copyright law added the last sentence of the statute t he fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors The sentence makes clear that while the unpublished nature of a work is a consideration it is not the only consideration nor a complete bar to a finding of fair use 3 How Much is Too Much The amount and substantiality of the portion used in relation to the copyrighted work as a whole a The third factor is directed at whether the amount of work used is more than necessary to achieve the protected purpose There is no magic amount of pages or particular number of words that makes copying fair use b Courts will look to whether the user took only what was necessary to effectuate the purpose of his or her use or whether the copying exceeded that which was necessary to make the point 1 Example In a case involving parody a certain amount of use is necessary to evoke the work being parodied But replaying a whole movie as part of creating a parody of that movie would be excessive copying See e g Metro Goldwyn Mayer Inc v Showcase Atlanta Cooperative Productions Inc 479 F Supp 351 N D Ga 1979 court found that Scarlet Fever a musical based on Gone with the Wind had so many similarities of character theme dialogue etc that it was neither a parody nor a satire but instead an unauthorized adaptation of the novel c Note too that work that was initially fair use under this factor may move outside of fair use protection with repeated use Material distributed to one class with a limited number of students might be analyzed differently if that same material continues to be used class after class or is distributed more widely through distance education or other means d This third factor also has a qualitative element as well as quantitative For example in Harper Row the copied amount was a small portion of the total book but because it was the heart of the work and the most commercially important part see 4 below the court considered its copying not to be fair use 4 The Market Effect the effect of the use upon the potential market for or value of the copyrighted work a Courts use this fourth factor to look at who is profiting from the work both now and in the future b Courts consider not just actual harm but potential harm See e g Harper Row 471 U S at 568 To negate a fair use claim a copyright holder must only show that if the challenged use should become widespread it would adversely affect the potential markets for the copyrighted work c This factor has been key in some of the coursepack cases where the courts have found copy shop production of coursepacks not to be fair use See e g Princeton University Press v Michigan Document Services 99 F 3d 1381 6th Cir 1996 court concluded that the market effect was the most important factor and ruled that the publishers established a diminution in potential market value Some Fair Use Cases a Sony Corp v Universal City Studios Inc 464 U S 417 1984 Owners of the copyrights of publicly broadcasted television programs brought suit against Sony for manufacturing what were then known as VTRs video tape recorders now VCRs The copyright holders alleged that consumers had been using the VTRs to record copyrighted works and that Sony was liable for such copyright infringement because of its marketing of the VTRs The Supreme Court concluded that the primary use of the machine for most owners was time shifting the practice of recording a program to view it at a later time and later erasing it It then went on to conclude that the evidence showed a significant likelihood that a large number of copyright holders who license their works for broadcast on free television would not object to having their broadcast time shifted and that no likelihood existed that time shifting would cause significant harm to the potential market for or the value of the TV programmers copyrighted works Accordingly the Supreme Court determined that the sale of copying equipment like the sale of other articles of commerce does not constitute contributory infringement if the product is widely used for legitimate unobjectionable purposes Indeed it need merely be capable of substantial noninfringing uses b Harper Row Publishers Inc v Nation Enterprises 471 U S 539 1985 In this case involving the memoirs of former President Gerald Ford Harper Row publishers had a contract to publish the memoirs and an agreement with Time Magazine to allow Time to publish certain portions of the manuscript ahead of time Before Time s article came out however the Nation magazine obtained a copy of the manuscript and published an article on it The Nation s article used excerpts from Ford s manuscript including portions discussing Ford s pardon of former president Nixon Harper Row sued the Nation arguing copyright infringement court agreed The appellate court however found the Nation s use of the material to be fair use The court determined that the portion of the material that was historical facts

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  • Intellectual Property Issues for Faculty | AAUP
    They would thus have to closely monitor and control posting to every website an impossible task Thus most institutions walk the fine line between having some rules as to appropriate material for websites on the university server but don t police the postings and don t claim ownership of faculty websites 4 Little law exists in this area and few court decisions deal directly with work for hire in higher education However there are a few prominent decisions in the federal courts finding that faculty authors own the copyright to their scholarly works a Weinstein v University of Illinois 811 F 2d 1091 1094 7th Cir 1987 This case involved multiple authors competing over control of an article An assistant professor sued his college and the university regarding an article he co wrote on Teaching Problem Solving in a Post Graduate Clinical Pharmacy Clerkship His co authors had made changes he didn t agree with The district court concluded that the article was the university s property because the university funded the clinical program which was the focus of the article The court reasoned that because Weinstein was a clinical professor he was required to conduct clinical programs and write about them as part of his appointment and thus the article was a work for hire The federal appellate court in an opinion written by Judge Easterbrook who is also a professor at the University of Chicago Law School reversed the decision finding that faculty scholarly work was not work for hire The court recognized and affirmed the longstanding tradition that higher education faculty own the copyrights to their academic work The court noted When the Dean told the professor to publish or perish he was not simultaneously claiming for the University a copyright on the ground that the work had become a requirement or duty When Saul Bellow a professor at the University of Chicago writes a novel he may keep the royalties b Hays v Sony Corp 847 F2d 412 7th Cir 1988 This opinion written by Chief Judge Posner also a prolific professor at the University of Chicago law school found that an exception for academic work from the work for hire doctrine could arguably still be read into the copyright act T he universal assumption and practice was that in absence of an explicit agreement as to who had the right to copyright such writing belonged to the teacher rather than to the college or university The court also noted that although college faculty write as part of their employment responsibilities and use employer facilities and resources to do so a college or university does not supervise its faculty in the preparation of academic books or articles and is poorly equipped to exploit their writings whether through publication or otherwise 5 Are Faculty Employees and is Their Work Within the Scope of Employment a Employees While the tradition in the academy is to view faculty as scholars affiliated with an academic institution under the law there is little debate that professors employed on a salaried basis with benefits tax withholding and other symbols of employment are employees Those faculty working on a contingent basis however or on an adjunct or per course basis might present a different picture b The Scope of Employment 1 The distinction between work and personal development is a harder line to draw for faculty than other employees a Professors have the unusual responsibility as part of their employment to be creative and independent outside of class in their intellectual scholarly life Thus the position of a professor requires an employee who researches and writes not to promote a particular viewpoint of the employer but one who engages in an independent search for truth and knowledge This model does not fit into the work for hire framework 2 As one commentator has noted insofar as custom plays a role in determining the intent of the parties to an employment contract it defines at least in part what professors are hired to do Thus the longstanding assumption that professors own the copyrights to their works is evidence that the parties do not consider the creation of copyrightable works of authorship to be within the scope of employment Laura Lape Ownership of Copyrightable Works of University Professors The Interplay Between the Copyright Act and University Copyright Policies 37 VILL L Rev 223 1992 3 Another legal scholar has opined Because of the tradition of independence and judgment that are commonly associated with professional activities the fact that the individual who prepared the work is a professional such as an architect or university professor will weigh heavily toward a finding that he rather than his employer is the author of ay works that he creates while in the other s employ Paul Goldstein Esq Copyright 2nd ed 4 3 2 Aspen Publishers 2005 6 Specific Areas Within Scholarly Work a Classrooms Classrooms are also an area controlled primarily by faculty Professors are entitled to freedom in the classroom in discussing their subject 1940 Statement and materials prepared to facilitate classroom teaching should not generally be works for hire but rather owned by the faculty member 1 Academic freedom applies to both teaching and research Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning 1940 Statement of Principles on Academic Freedom and Tenure AAUP Policy Documents Reports 3 9th ed 2001 2 AAUP policy provides that faculty must hold the copyright to traditional academic works where the faculty member determines the subject matter the intellectual approach and direction and the conclusions T traditional academic work that is copyrightable such as lecture notes courseware books and articles cannot normally be treated as work for hire Statement on Copyright AAUP Policy Documents Reports 183 9th ed 2001 3 Williams v Weisser 78 Cal Rptr 542 Cal App 1969 In a professor s suit to enjoin a publishing organization known as Class Notes from selling notes of his lectures Class Notes claimed in its defense that the professor did not own the copyright to his lectures and thus could not bring the suit The court concluded that it was convinced that the teacher rather than the university owns the common law copyright to his lectures The court noted that no custom known to us suggests that the university can prescribe the professor s way of expressing the ideas he puts before his students and university ownership of faculty lectures would create such undesirable consequences as to compel a holding that it does not 4 To the extent that a classroom is controlled by the administration however the work for hire analysis would change Thus departmentally designed courses were there is a prescribed syllabus or course content may not belong to the teacher The extent that a course would be considered work for hire is tied directly to the amount of independence given the faculty member a In Hays v Sony Corp 847 F2d 412 7th Cir 1988 for example even when the federal appellate court concluded that t he universal assumption and practice was that in absence of an explicit agreement as to who had the right to copyright such writing belonged to the teacher rather than to the college or university it noted that we may set to one side cases where a school directs a teacher to prepare teaching materials and then directs its other teachers to use the materials too 5 Note too the conflict of commitment issues here While classroom lectures are generally considered the property of the faculty and faculty are presumed to have the right to take them when they leave the institution the advent of distance education has led to questions of exactly when concurrent teaching for example would violate understandings of faculty time commitment a Arthur Miller a well know professor at Harvard Law School became involved in a controversy with Harvard University after he provided videotaped lectures for the Concord University School of Law an on line law school without Harvard s permission The controversy clearly raised intellectual property concerns As Miller posed the query How much of Arthur Miller does Harvard own It also raised the issue of how conflicts of commitment policies apply to online education or electronic moonlighting As one commentator noted A pplication of these general conflicts of commitment policies in the Internet era is not straightforward Why for example would the videotaping of a series of lectures for an online institution interfere with one s teaching and research responsibilities if giving a series of off campus lectures would not Jonathan R Alger A Miller s Tale Free Agent Faculty Academe Bulletin of the American Association of University Professors May June 2000 See AAUP Legal Information Outline Faculty Employment Outside Of The University Conflicts Of Commitment Donna Euben March 2004 b Syllabi Some institutions argue that institutions exercise more control over the content of syllabi than they do over books or articles the courses to be taught topics that must be covered and the overall offerings of the department Institutions often require for example that certain provisions or disclaimers be included in syllabi that syllabi be posted on the web etc Thus some argue that faculty are hired to teach that teaching and the by products thereof are thus within the scope of employment and this additional control by the employer institution transform syllabi into work for hire 1 Once again true ownership of syllabi will depend on control of the outcome Generally faculty have control of most of the substance of their syllabi and are presumed to have ownership of that syllabi a Williams v Weisser 78 Cal Rptr 542 Cal App 1969 professor has ownership of lectures discussed above Such ownership would presumably have extended to the syllabus for that class under the Weisser reasoning b But see Vanderhurst v Colorado Mountain College District 16 F Supp 2d 1297 D Colo 1998 A professor and clinician in Veterinary Technology worked for Colorado Mountain College CMC on a series of annually renewable employment contracts for 22 years before being dismissed for misconduct As part of a lawsuit regarding the dismissal he claimed that CMC infringed his copyright to a Veterinary Technology Outline which was created in the course of teaching at CMC The court noting that CMC s policies state that a faculty member s duties include program and curriculum development and course preparations concluded that the outline belonged to CMC as a work for hire It reached this conclusion despite recognizing that it is undisputed that Vanderhurst prepared the Outline on his own time with his own materials However there is no genuine dispute that Vanderhurst s creation of the Outline was connected directly with the work for which he was employed to do Note however that Vanderhurst was not a tenured or tenure track professor Moreover he eventually won his lawsuit against the university regarding his dismissal The copyright issue was not raised or discussed in the appeal but the appellate court upheld Vanderhurst s victory on the dismissal claim Vanderhurst 208 F 3d 908 10th Cir 2000 c Course descriptions Course descriptions are another area where a faculty member s presentation of his or her scholarly approach to a subject might be subject to control and thus ownership by the university More than syllabi and lectures course descriptions prepared for the course catalog for example must follow certain strictures Often institutions control the length style and even content of such postings Moreover faculty are required to create descriptions of their courses in order for students to be able to enroll arguably supporting the argument that such descriptions belong to the institution as works for hire Again however even in such a situation while the institution may own the description of a course created for that particular catalog that does not mean it owns the course itself or the course content 7 Special issues Students a Works by students as students are entitled to copyright protection and belong to the students 1 Faculty need to get permission from students to copy and distribute their works just as they would any other copyrighted work Some faculty address this issue by having students sign a waiver at the beginning of the class b Works by students as employees are works for hire 1 To the extent students are being paid for work they do their work is work for hire This payment could take forms other than strict salary like tuition reimbursement etc Again however the only work covered would be that directed by the employer and related to the employment If a paid graduate assistant also does scholarly work during the time as a graduate student that scholarly work would still belong to the student 8 Practical considerations a The copyright rules are vague so don t just assume ownership for yourself b Be aware of institutional polices and be sure there is faculty participation in developing and revising such institutional policies c Contract around the rules if they don t work for you 1 In any project that seems unusual consider whether a separate contract might be useful Work up front at setting ownership and expectations especially on lucrative projects joint works grants special university driven projects etc before you have used resources to create the next great on line course It is much harder to do it after the fact IV How May Faculty Use the Works of Others A General Issues to Consider 1 Faculty are both creators and users of copyrightable material As you use your colleagues work so too are they using yours Would you be comfortable with your work being used in the way you are using the work of others 2 Infringement of copyright is not to be taken lightly Legal responsibility for copyright violations can be both direct and indirect Thus not only can you be responsible for direct copying you do but you may be legally responsible even if you are only contributing to someone else s copying infringement as long as you act knowingly and make a material contribution to the infringement 3 The copyright laws also contain significant penalties for copyright infringement even if there are no real damages suffered by the victim 4 Attribution while an important part of use and citation of others work and important for avoiding plagiarism concerns is not a protection against copyright infringement claims 5 Remember use of any copyrighted material is a violation of copyright UNLESS it falls into one of the enumerated exceptions discussed below B Fair Use 1 Fair use is a statutory exception to the general rule of copyright ownership It affects or limits not who is considered the author and copyright holder but rather the rights of that copyright holder The doctrine provides that no matter who owns the copyright certain uses are not considered a violation of that copyright a The fair use exemption was initially judge created law it evolved from case law It was eventually codified in 17 U S C 107 during the 1976 revision of the Copyright Act and is now a statutory exception 2 Notwithstanding its now codified status the fair use exemption is still vague and unclear depending on the specific facts and circumstances 3 Because of this lack of precision fair use analysis can be extremely frustrating As one court put it the doctrine is so flexible as virtually to defy definition Time Inc v Bernard Geis Assoc 293 F Supp 130 144 S D N Y 1968 4 Statutory Codification See Appendix B 17 U S C 107 Limitations on Exclusive Rights Fair Use 5 The fair use analysis is based on two basic concepts the purpose of the use and the fairness of how that the work is used a Purposes The fair use doctrine says that copying for certain purposes will not be considered a violation of copyright because there are certain purposes where copying betters society 1 The statute sets out a non exclusive list of purposes that are assumed to be of benefit to society and thus eligible for fair use protection While this list does not include all possible fair use purposes it can be viewed as setting out a premier set of uses that deserve preferred status in the application of fair use See Robert A Gorman Copyright Law Federal Judicial Center 1991 2 This preferred list includes uses crucial to faculty such as criticism comment teaching scholarship and research which form the basis for most of the classroom and research copying faculty do a This list however is clearly illustrative not exhaustive Note for example that the two Supreme Court cases addressing this issue Harper Row Publishers v Nation Enterprises and Sony Corp of America v Universal Studios Inc do not seem to follow this list Harper dealt with news reporting one of the enumerated factors but was found not to be fair use and Sony dealt with private videotaping of television programs a use clearly beyond the preferred list yet was found to be fair use see further discussion of cases in IV B 6 below It is this particular provision that makes fair use the legal basis for much of classroom use of copyrighted materials 3 The list of purposes includes use not only by citation or reference but also by reproduction in copies including multiple copies for classroom use It is this particular provision that makes fair use the legal basis for much of classroom use of copyrighted materials b Fairness Factors The fair use analysis does not stop at the list of enumerated purposes however Courts also look at the way the materials are used for that purpose The use must be fair The statute sets out four factors for courts to consider in determining whether a use is fair use 1 The purpose and character of the use which includes whether it is a commercial use or an educational and or non profit use a The general rule is that commercial use is presumed not to be fair use See e g Sony Corp of America v Universal City Studios 464 U S 417 1984 I f the intended use is for commercial gain the likelihood of future harm may be presumed 1 The idea is that if someone is profiting from use of a copyrighted material the copyright holder should be benefiting from that use 2 The Nature of the Work a This second factor is designed around the idea that there should be greater access to works of fact or information The point of the copyright law is to increase public knowledge by encouraging creation of information and thus factual informative materials are more likely to be subject to fair use than purely entertainment based materials b This factor also can implicate the availability of the work If the work is somehow unavailable out of print never reproduced etc then this aspect of its nature would make it more likely to fall under fair use c Unpublished works would also receive special consideration under this factor The rights of the author to control the distribution of the work and its presentation would weigh more heavily against a claim of fair use if the work had never been published than if it had already been made available See Harper Row 471 U S 539 1985 1 Note however that the drafters of the copyright law added the last sentence of the statute t he fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors The sentence makes clear that while the unpublished nature of a work is a consideration it is not the only consideration nor a complete bar to a finding of fair use 3 How Much is Too Much The amount and substantiality of the portion used in relation to the copyrighted work as a whole a The third factor is directed at whether the amount of work used is more than necessary to achieve the protected purpose There is no magic amount of pages or particular number of words that makes copying fair use b Courts will look to whether the user took only what was necessary to effectuate the purpose of his or her use or whether the copying exceeded that which was necessary to make the point 1 Example In a case involving parody a certain amount of use is necessary to evoke the work being parodied But replaying a whole movie as part of creating a parody of that movie would be excessive copying See e g Metro Goldwyn Mayer Inc v Showcase Atlanta Cooperative Productions Inc 479 F Supp 351 N D Ga 1979 court found that Scarlet Fever a musical based on Gone with the Wind had so many similarities of character theme dialogue etc that it was neither a parody nor a satire but instead an unauthorized adaptation of the novel c Note too that work that was initially fair use under this factor may move outside of fair use protection with repeated use Material distributed to one class with a limited number of students might be analyzed differently if that same material continues to be used class after class or is distributed more widely through distance education or other means d This third factor also has a qualitative element as well as quantitative For example in Harper Row the copied amount was a small portion of the total book but because it was the heart of the work and the most commercially important part see 4 below the court considered its copying not to be fair use 4 The Market Effect the effect of the use upon the potential market for or value of the copyrighted work a Courts use this fourth factor to look at who is profiting from the work both now and in the future b Courts consider not just actual harm but potential harm See e g Harper Row 471 U S at 568 To negate a fair use claim a copyright holder must only show that if the challenged use should become widespread it would adversely affect the potential markets for the copyrighted work c This factor has been key in some of the coursepack cases where the courts have found copy shop production of coursepacks not to be fair use See e g Princeton University Press v Michigan Document Services 99 F 3d 1381 6th Cir 1996 court concluded that the market effect was the most important factor and ruled that the publishers established a diminution in potential market value 6 Some Fair Use Cases a Sony Corp v Universal City Studios Inc 464 U S 417 1984 Owners of the copyrights of publicly broadcasted television programs brought suit against Sony for manufacturing what were then known as VTRs video tape recorders now VCRs The copyright holders alleged that consumers had been using the VTRs to record copyrighted works and that Sony was liable for such copyright infringement because of its marketing of the VTRs The district court concluded that noncommercial home use recording of programs broadcast over the public airwaves was fair use and did not constitute copyright infringement The appellate court reversed the trial court s judgment concluding as a matter of law that the home use of a VTR was not a fair use because it was not a productive use It found that most VTRs are sold for the primary purpose of reproducing television programming and that v irtually all such programming is copyrighted material Moreover the court noted that while it was not necessary for plaintiffs to prove any harm to the potential market for the copyrighted works it did seem clear that the cumulative effect of mass reproduction could diminish the potential market for the copied works The Supreme Court perhaps mindful of the enormous popularity of VTRs disagreed with the appellate court and reversed it The Court concluded that the primary use of the machine for most owners was time shifting the practice of recording a program to view it at a later time and later erasing it It then went on to conclude that the evidence showed a significant likelihood that a large number of copyright holders who license their works for broadcast on free television would not object to having their broadcast time shifted and that no likelihood existed that time shifting would cause significant harm to the potential market for or the value of the TV programmers copyrighted works Accordingly the Supreme Court determined that the sale of copying equipment like the sale of other articles of commerce does not constitute contributory infringement if the product is widely used for legitimate unobjectionable purposes Indeed it need merely be capable of substantial noninfringing uses b Harper Row Publishers Inc v Nation Enterprises 471 U S 539 1985 In this case involving the memoirs of former President Gerald Ford Harper Row publishers had a contract to publish the memoirs and an agreement with Time Magazine to allow Time to publish certain portions of the manuscript ahead of time Before Time s article came out however the Nation magazine obtained a copy of the manuscript and published an article on it The Nation s article used excerpts from Ford s manuscript including portions discussing Ford s pardon of former president Nixon Harper Row sued the Nation arguing copyright infringement and the district court agreed The appellate court however found the Nation s use of the material to be fair use The court determined that the portion of the material that was historical facts quotations and information from public documents could not be considered copyrightable and noted that once that material was removed there were only about 300 copyrightable words remaining The court heavily influenced by the politically significant nature of the subject matter and noting that the purpose of the copyright act is not to chill the activities of the press by forbidding a circumscribed use of copyrighted words determined that the purpose of the article was newsreporting and therefore fair use The Supreme Court disagreed finding that the Second Circuit gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors The Court noted particularly the unpublished nature of the work and that the use while fairly small took the most marketable heart of the work It also concluded that an author should have control of the first release of a work and that u nder ordinary circumstances the author s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use Finally the Court noted that t he obvious benefit to author and public alike of assuring authors the leisure to develop their ideas free from fear of expropriation outweighs any short term news value to be gained from premature publication of the author s expression and that t he fact that the words the author has chosen to clothe his narrative may of themselves be newsworthy is not an independent justification for unauthorized copying of the author s expression prior to publication c Coursepack Cases 1 Princeton University Press v Michigan Document Services 99 F 3d 1381 6th Cir 1996 An academic publisher sued a copy shop that bound segments of scholarship into course packs for copyright infringement The court found that the fair use doctrine did not obviate the need to obtain permission to reproduce the works The court explained that the fair use doctrine permits and requires courts to avoid rigid application of the copyright statute when on occasion it would stifle the very creativity which that law is designed to foster At the same time however the court decided that the fair use doctrine allowance of multiple copies of classroom use does not provide blanket immunity The court reasoned that the factor regarding the effect of the use upon the potential market for or value of the copyrighted work was the most important factor in the fair use exemption and ruled that the publishers established a diminution in potential market value The court also noted that the professors assigned as much as 30 percent of one copyrighted work and found that amount not insubstantial a Publishers continue to file cases against copyshops selling coursepacks See Elsevier Science v Custom Copies and Elsevier Science v Westwood Copies Inc These cases were brought by various presses against copyshops selling coursepacks to students at the University of Florida at Gainesville and at UCLA In both cases the copyshops settled with the publishers for an undisclosed amount in 2003 7 Practical Considerations for Fair Use by Faculty a Consider whether if others used your work as you are contemplating using theirs would you lose money Would you consider it a sufficiently limited and justifiable reference Would you have wanted them to ask permission Pay a fee Would you have been willing to give permission if you had been asked b Would you be upset The Supreme Court has referred to this approach as the equitable rule of reason Perhaps no more precise guide can be stated than Joseph McDonald s clever paraphrase of the Golden Rule Take not from others to such an extent and in such a manner that you would be resentful if they so took from you Harper Row 471 U S 539 550 n 3 citing 3 Nimmer 13 05 A at 13 66 quoting McDonald Non infringing Uses 9 Bull Copyright Soc 466 467 1962 c Remember that acknowledging the source is important in research but does not substitute for permission in using the work d Keep in mind that the users inconvenience is not a factor in the fair use analysis Therefore the fact that the piece is really needed for class tomorrow or that the faculty member doesn t have the phone number of the author or the money to pay for use are not valid excuses e In making coursepacks 1 Consider whether you can use a university in house copy shop rather than a commercial one The closer tie to the university and the removal of the profit receiving middle man provide better support for a fair use multiple copies for classroom use argument 2 Consider whether the copyshop gets permissions for you or whether you need to follow up yourself 3 Be brief and sparing in excerpts 4 Attribute excerpts 5 Get permission a If use of a work is truly spontaneous you might be able to argue fair use but if you have time to get permission do so Note too that even if the first use is spontaneous you will still need to get permission for future uses as the spontaneity argument will not be available with repeated use 8 Pointers to Consideration of Fair Use in the Electronic World a Many of the same considerations for fair use exist in the electronic classroom as exist in the traditional classroom However the electronic classroom amplifies all the risks of the traditional classroom 1 Every time you download a web page you are copying someone s work The web is essentially one big photocopier every time you view a webpage or forward an email you are making copies of it That consideration becomes increasingly important when you start moving beyond downloading for your own research and begin to distribute that webpage to students around the country or globally 2 Similarly posting something on your own webpage can be a violation of the author s copyright even if you got it from another webpage and even if you attribute it a Example A lawsuit was filed by an author against colleges and universities for allegedly allowing people to use their webservers to post copies of his self published book on income tax laws While the institutions may be protected because they are only involved as owners of the servers not controllers of the individual websites and the courts dismissed the case against the webserver operators the faculty or other members of the university community who may have posted the book could be liable for copyright infringement Colleges Are Unconcerned by Online Author s 2 6 Billion Copyright Lawsuit Chronicle of Higher Education March 7 2002 Mitchell v AOL Time Warner Inc et al 2002 U S App LEXIS 26313 December 2 2002 b The greatest risk of technology is that it means more people see what you are doing You are on the radar screen much more when you post something on the web than when you discuss it in a traditional classroom c Greater publication also means greater harm to the copyright holder The more you cover the market by your use of the copyrighted work the more potential financial harm to the person whose copyright is violated d Materials presented on the web have a much longer lifespan than hard copies in traditional classrooms They tend to have a life of their own staying up and accessible for years increasing the risk of infringement and liability C Teacher Exemption 110 1 Section 110 is another statutory exemption to the bundle of rights belonging to the copyright holder It sets out certain uses that will not be considered violations of copyright a Originally passed in 1976 it was designed to deal with the then looming onset of televised education Thus it covered face to face classroom performances of copyrighted works including dramatic works for teaching purposes in nonprofit educational institutions b The statutory provision was made obsolete by the advent of web based distance education however and the statute was in need of amendment for many years 2 Congress finally passed the Technology Education and Copyright Harmonization TEACH Act in 2002 It amends Section 110 so that while the section continues to deal with the performance of nondramatic literary and musical works it also addresses issues of asynchronous web based distance education 3 Section 110 is different from Section 107 fair use because Section 110 doesn t require the use to be fair There is no balancing of factors or analysis of motive Rather it sets out specific limited uses that are automatically protected The flip side is that the teacher exemption is also more limited than fair use it sets out very specific uses and very specific criteria and is thus much narrower than fair use 4 Statutory Language See Appendix B 17 U S C 110 Limitations on Exclusive Rights Exemption of Certain Performances and Displays 5 Section 110 1 is the old law and still protects the type of in person displays that it has always protected Section 110 2 is the new part of the law The law now provides that the following activities are not infringements of copyright a 110 1 Exempts from copyright violation the performance or display of any work done in 1 the course of face to face teaching activities of a nonprofit educational institution including performances or displays by students and or professors 2 which are presented in a classroom or similar place devoted to instruction b 110 2 Extends this coverage to performance via digital transmission of 1 an entire non dramatic literary or musical work 2 a limited and reasonable portion of all other works including videos films and dramatic musical work 3 a display of still images in amounts typical of face to face displays in classroom c The new part of Section 110 contains significant restrictions however that at the current time may swallow its benefits To be covered 1 all displays or performances must be made to students officially enrolled wherever they are located dorm work home class library etc a thus there

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  • Distance Education and Intellectual Property | AAUP
    Graduate Students The Academic Bill of Rights Minority Serving Institutions Post Tenure Review Retirement Sexual Diversity Gender Identity Teaching Evaluation Tenure Women in Higher Education Reports Publications AAUP Policies Reports Academe Economic Status Report Compensation Survey Bulletin of the AAUP The Redbook Journal of Academic Freedom AAUP Bookstore News AAUP in the News AAUP Updates For the Media Get Involved Upcoming Events Local Toolkit Issue Campaigns Find Chapters Conferences Start a Chapter I Need Help With Workplace Issues Understanding Terms and Abbreviations Responding to Financial Crisis You are here Home Distance Education and Intellectual Property Statement on Copyright Statement explaining faculty members basic rights of ownership of their intellectual property prevailing academic practice and exceptions in which colleges and universities may fairly claim full or partial ownership of works created by faculty members Read more about Statement on Copyright Statement on Intellectual Property Providing guidance this statement deals with the management of inventions patents and other forms of intellectual property in a university setting Read more about Statement on Intellectual Property Statement on Intellectual Property The management of inventions patents and other forms of intellectual property in a university setting warrants special guidance because it bears on so many aspects of the university s core missions values and functions including academic freedom scholarship research shared governance and the transmission and use of academic knowledge by the broader society Read more about Statement on Intellectual Property Defending the Freedom to Innovate Faculty Intellectual Property Rights after Stanford v Roche Tensions over control of the fruits of faculty scholarship have been slowly building since the 1980s and have intensified over the last three years There have long been differences of opinion over ownership of patentable inventions but recently a number of universities have categorically asserted that they own the products of faculty

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  • Copyright and fair use | AAUP
    about Copyright for Academics in the Digital Age Information Technology Wants to Be Free Sometimes I hear through the grapevine in the cohesive community where my regional comprehensive university is located of a recent graduate who is using calculus in an unauthorized way Perhaps this person is an engineer optimizing a process in one of our remaining local industries an executive maximizing profit in a new venture or even a soccer mom or dad doodling on a fast food wrapper trying to figure out the best location for defensive players in terms of how much of the field they can control Read more about Information Technology Wants to Be Free Sue U What business are we in Christie Hefner president chair and CEO of Playboy Enterprises from 1988 through 2009 challenged attendees at the 2012 annual meeting of the Association of University Technology Managers AUTM being held just outside of Disneyland to ask themselves this deceptively simple question While Playboy s business no doubt would make Mickey Mouse blush Hefner s question to those on the front lines of the university patenting and licensing community bears studied reflection by a much wider audience Read more about Sue U 1 comment Resources on Copyright Distance Education and Intellectual Property AAUP Policy Statements Reports Analysis Statement on Copyright 1999 Statement on Distance Education 1999 Read more about Resources on Copyright Distance Education and Intellectual Property Intellectual Property Issues for Faculty Intellectual Property Legal Issues For Faculty By Ann Springer Associate Counsel November 2004 Only one thing is impossible for God to find any sense in any copyright law on the planet Mark Twain s Notebook 1902 1903 I Introduction A Copyright law is a complicated somewhat circular and amorphous mixture of fact and law B Copyright law applies to many more aspects

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