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At a Distance: Articulating A Higher Ed Perspective on Remote Instruction

Authors Jonathan A. Poritz

License CC-BY-SA-4.0

                               At a Distance:
                   Articulating A Higher Ed Perspective
                           on Remote Instruction

                                           Jonathan A. Poritz


                        13 March 2021, California Conference of the AAUP:
                       Teaching, Learning, and Creating Equity at a Distance

                     This slide deck, except where otherwise indicated, is by Jonathan Poritz and is released under a
                     Creative Commons Attribution-ShareAlike 4.0 International License.

                      These slides are available at .             Higher Ed on Remote Instruction          CA AAUP Conf., 13 Mar 2021          1 / 13
Land acknowledgement

             Before I begin, I need to say that while we are meeting
             in this virtual space from many geographic locations, I
             am myself physically located at this moment within the
             unceded territory of the Ute Peoples. The earliest doc-
             umented people in this area also include the Apache,
             Arapaho, Comanche, and Cheyenne. An extended list of
             tribes with a legacy of occupation in this area can be
             found here: Colorado Tribal Acknowledgement List.   Higher Ed on Remote Instruction   CA AAUP Conf., 13 Mar 2021   2 / 13
Things we might talk about

  • Academic freedom and the universal switch to remote learning,
    including issues around recordings of classes and IP rights
         I fixed in a tangible medium of expression and works for hire
  • Shared governance was there faculty decision-making – or even
    consultation – about the transition?
         I LMSes are to faculty what invasive proctoring software is to students
           ... and both are awful
  • Security of employment/tenure, particularly new financial challenges
    which accelerated adjunctification, precarity, and even all-out assaults
    on tenure.
         I IP rights for adjuncts   Higher Ed on Remote Instruction   CA AAUP Conf., 13 Mar 2021   3 / 13
A warning: IAmNotALawyer

Although I will be talking about some legal issues,

                                      I am not a lawyer.

Even were I a lawyer, in situations like this presentation,

                                  I would not be your lawyer.

(Not because I don’t like you, but because that’s the way legal
representation works.)       Higher Ed on Remote Instruction   CA AAUP Conf., 13 Mar 2021   4 / 13
What is academic freedom, and [why] do we deserve it?

        Institutions of higher education are conducted for the common
        good and not to further the interest of either the individual
        teacher or the institution as a whole. The common good de-
        pends upon the free search for truth and its free exposition.
                Academic freedom is essential to these purposes and ap-
        plies to both teaching and research. Freedom in research is
        fundamental to the advancement of truth. 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.

                                                                                     emphasis added
                                                        American Association of University Professors
                                       1940 Statement of Principles on Academic Freedom and Tenure   Higher Ed on Remote Instruction       CA AAUP Conf., 13 Mar 2021      5 / 13
The Copyright Clause

Article I, Section 8, Clause 8. the Copyright Clause, of the US
Constitution, gives Congress the power
        “To promote the Progress of Science and useful Arts, by securing
         for limited Times to Authors and Inventors the exclusive Right to
         their respective Writings and Discoveries.”
This exclusive Right includes: performance, public display, copying,
distribution, and creation of derivative works.
See my Copyright Cheat Sheet For University Faculty for one academic’s1 explanation of many aspects of copyright law.

The limited Times have been changed – extended! – again and again by
Congress. Currently in the US, copyrights last for the life of the author
plus 70 years ... but there are many details to consider, including
exceptions such as fair use.

        Not a lawyer!              Higher Ed on Remote Instruction         CA AAUP Conf., 13 Mar 2021        6 / 13
Fixation and works-for-hire

Three really important things to know about copyright:
It’s [nearly] automatic: In the US, the moment a work with some level
of originality – and the barrier is very, very low here – is “fixed in a
tangible medium of expression’,” it is copyrighted.
      The creativity in your lectures is not copyrighted unless you, or
      someone else, records them!

Your employer may own the copyrights on your works: Under §101 of
the U.S. Copyright Act, the copyright to “a work prepared by an employee
within the scope of his or her employment” belongs to their employer.
      Under the “traditional academic exception to the works-for-hire
      doctrine,” academics are often exempted from this provision.
      Since works-for-hire is the default, you must check your contract to
      see if you are explicitly granted the exception.   Higher Ed on Remote Instruction   CA AAUP Conf., 13 Mar 2021   7 / 13
Colorado State University Pueblo’s IP policy                                1

From our Faculty Handbook, which is also incorporated by reference into
our contract of employment.
    “ 2 Faculty Personnel Policies
      2.6 Working Conditions
      2.6.1 Rights and Responsibilities Related to Creative Work General Policy
      Inventions, Academic Materials, Publications, and other creations here-
      after referred to as Works, are the natural outgrowth of activity in teach-
      ing, research, and service. University academic faculty, administrative
      professionals, state classified staff, student employees, and anyone affil-
      iated in a professional capacity with the University and using University
      Resources, who are inventors and creators (hereafter referred to collec-
      tively as Members), shall provide notification of their creation of Works
      to the appropriate administrator(s) and indicate their association with
      the University in all professional Publications.”   Higher Ed on Remote Instruction   CA AAUP Conf., 13 Mar 2021   8 / 13
Colorado State University Pueblo’s IP policy                                2

    “In the interest of encouraging the development of new and useful scholarly
      material and the publication of such works, the University will continue
      the tradition of not claiming ownership or a share of the proceeds from
      scholarly works such as Academic Materials, textbooks or their equiva-
      lent not supported through the use of University Resources as defined
      below or expressly commissioned by the University, popular or scholarly
      nonfiction novels, poems, sculpture, musical compositions, or other artis-
      tic works. A faculty members general responsibility to produce scholarly
      and creative works does not constitute an express commission of Works.
      Subject to the use of such courses for continuing or distance education
      purpose, (see Section members are sole copyright holders
      of their own lectures and any publication, recording, or broadcasting of
      lectures must be authorized by the Members concerned.”

Sounds good, or?   Higher Ed on Remote Instruction   CA AAUP Conf., 13 Mar 2021   9 / 13
Colorado State University Pueblo’s IP policy                                 3

    “ Ownership and Rights
      Ownership and rights to Works having potential monetary or commercial
      value depend on the origin, type and amount of resources used in the
      creation of Works. The Provost or Designee is responsible for making
      ownership and licensing decisions for works pursuant to Section 2.6.1....
      The following provisions shall govern the ownership of Works:
      2.6. 1.3.1 Works Supported by the University
      With the exception of Academic Materials not supported through the use
      of University Resources, works developed using University Resources or
      reduced to practice in the course of a Members University responsibilities
      and those expressly commissioned by the University shall be the property
      of the University and the Members who created them....”

Definitely not good. And seems to contradict the earlier statement.   Higher Ed on Remote Instruction   CA AAUP Conf., 13 Mar 2021   10 / 13
Colorado State University Pueblo’s IP policy                                 4

The language makes it clear that contingent faculty essentially never own
the rights to their works.
[Sometimes that is done by noting that the handbook, or a section
thereof, applies only to employees of “faculty rank,” from which
contingent faculty are excluded – despite the AAUP’s position on
long-term contingent faculty!”]
This handbook language is typical across academia. It is often written by
campus General Counsels who have little training in IP law.
Go check your contract!   Higher Ed on Remote Instruction   CA AAUP Conf., 13 Mar 2021   11 / 13
A modest proposal

One consequence of the above can be that “road warrior” adjuncts cannot
use their own curricular materials when moving from institution to
A solution could be to require all curricular materials which fall under the
works-for-hire doctrine to be publicly licensed.
In the Open Access movement, it was said that “research funded by public
funds should appear in open fora,” and the OA folks won that fight (e.g.,
NIH-funded research, etc.). I would instead say

Publicly funded curricular materials should be released with an open

(For more on what is open licensing, see, e.g., my Creative Commons
Cheat Sheet for University Faculty.)   Higher Ed on Remote Instruction   CA AAUP Conf., 13 Mar 2021   12 / 13
Discussion and Contact Info

Contact info:
Email: ; Tweety-bird: @poritzj .
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       subject to CC-BY-SA     Higher Ed on Remote Instruction   CA AAUP Conf., 13 Mar 2021   13 / 13