Authors Jonathan A. Poritz
License CC-BY-SA-4.0
At a Distance:
Articulating A Higher Ed Perspective
on Remote Instruction
Jonathan A. Poritz
jonathan@poritz.net
poritz.net/jonathan
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 poritz.net/jonathan/share/AaD/ .
poritz.net/jonathan/share/AaD/ 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.
poritz.net/jonathan/share/AaD/ 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
poritz.net/jonathan/share/AaD/ 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.)
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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
poritz.net/jonathan/share/AaD/ 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.
1
Not a lawyer!
poritz.net/jonathan/share/AaD/ 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.
poritz.net/jonathan/share/AaD/ 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
2.6.1.1 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.”
poritz.net/jonathan/share/AaD/ 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 2.6.1.12.3) 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?
poritz.net/jonathan/share/AaD/ Higher Ed on Remote Instruction CA AAUP Conf., 13 Mar 2021 9 / 13
Colorado State University Pueblo’s IP policy 3
“ 2.6.1.3 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.
poritz.net/jonathan/share/AaD/ 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!
poritz.net/jonathan/share/AaD/ 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
institution.
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
license
(For more on what is open licensing, see, e.g., my Creative Commons
Cheat Sheet for University Faculty.)
poritz.net/jonathan/share/AaD/ Higher Ed on Remote Instruction CA AAUP Conf., 13 Mar 2021 12 / 13
Discussion and Contact Info
Discussion!!
Contact info:
Email: jonathan@poritz.net ; Tweety-bird: @poritzj .
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