American Association of University Professors
University of Delaware Chapter

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May 2000 aaUPBEAT

Intellectual Property Rights

Who Owns What You Teach in Class?

If you have a few minutes free one day, turn on your computer, connect to the Internet and go to the following Internet address: There you will find a pedestrian-looking web site containing special offers of interest to college and university students. One of these offers is for the class notes to specific classes. Other offers include trial examinations and summaries of great works of fiction. If a student clicks with her/his mouse on the lecture notes option, he or she can find class notes for higher-education courses taught at schools around the country, including more than one hundred courses taught at the University of Delaware. The notes, taken by students, are sold to for a fee. After getting the notes, officially assumes their ownership by copyrighting them. The notes are then made electronically available to interested students.

Seeing one's work copyrighted by someone else can be a shock. Alan David Fox of UD's Philosophy Department found this out firsthand when he discovered that notes from one of his courses were posted on's web site and had been copyrighted by them. According to Fox, the unauthorized use of notes on his lectures raises two problems. The first is the fact that my entire course, which has been carefully constructed over the years, is now published without my approval. The conclusions I reached, the data I strung together to reach those conclusions, and topics I covered are all published and copyrighted by These conclusions have not been published in any book. They are my own intellectual property, and I should be the one to decide who benefits from them. I already get paid to teach, and I don't need to make extra money off my notes. But I do think that I should be the one to decide who can profit from them. Anyone reading these notes can reconstruct my course completely.

Fox also argues that has not only taken his intellectual property, but has altered the very nature of his course. The company has done this, he says, by reducing a complex dialogue between professor and students into a process that encourages rote memorization rather than logic or dialectical analysis. "My teaching style is extremely dialectical," Fox says. "I ask a provocative question, and I expect a certain range of answers. I work with these answers to establish complexity and to get students to think for themselves. I teach philosophy and the entire point of my course is to get students to think for themselves." is not interested in the fact that this aspect of Prof. Fox's course is the "entire point" of his performance in the classroom. All they are interested in is their profits.

Fortunately for Fox, when he explained his concerns to his class, the person who had supplied with course information admitted on his own that he was the culprit and promised to sever his relationship with the company. He kept his word and the problem was over - in that particular course.

Elsewhere, however, both at UD and around the nation, continues to grow.

The students who sell their class notes to are obviously a vital part of the company's business. Once hired by the company, their official title is "Class Research Coordinator" or CRC. According to's job descriptions, which can be found on its web site, CRCs are students enrolled in courses that provides notes for. They are responsible for taking high quality notes of what was presented in the class and submitting them within 24 hours. Additionally, they document class events and announcements as reminders for other students. Benefits: Earn money by taking notes in class. You choose the schedule, you set the hours. Responsibilities: Taking quality notes during each lecture and posting them onto our site within 24 hours. Qualifications: Well organized, ability to work independently, computer proficiency, a minimum GPA of 3.0, and the ability to post notes within 24 hours. Compensation includes a base salary and significant incentive-based bonuses.

A CRC's main role is that of middle person in the process of extracting information from the privacy of the classroom, then placing that information in the hands of those knowledgeable in the ways of making that information their private property. For the most part, students do this in the same spirit that has motivated students in the past to share their written class notes with friends or members of the same sorority/fraternity. However, there is a difference between casual, localized notes-sharing and's activities and it is an important one.

When a company hires a student to covertly transmit a detailed summary of a professor's vision of her/his subject, then claims ownership of that detailed summary and the vision it implies, the company has crossed the line between localized notes-sharing and the establishment of a sophisticated mechanism for stealing other people's intellectual property, then consolidating that property under the banner of a specific company. Such acts violate the AAUP Statement of Principles, which contends, "The utterances of an academic instructor are privileged, and may not be published, in whole or in part, without his authorization."

Unfortunately, existing copyright law contains loopholes that allow a professor's intellectual property rights to be violated.

One of those loopholes is the "tangible medium" problem.

According to U.S. copyright law, a work can be copyrighted if it is embodied "in a copy or phonorecord by or under the authority of the author" and "is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." For a work to be so embodied means, according to copyright law, that the work exists in a "tangible medium" and therefore can be owned or copyrighted by its creator.

Although this wording covers a wide variety of human expressions - e.g., written notes, audiovisual presentations, computer software, scored music - it also leaves out some. For instance, a choreographed dance that has not been formally diagramed cannot be copyrighted because it doesn't exist in a tangible medium. Also, in spite of the national AAUP's sensible insistence that a professor's in-class verbal presentations should be protected by copyright law, the law is at best vague on this issue. If the presentations are fully written out, they can be copyrighted, but anything less than this means the presentations do not exist in a "tangible medium" and therefore can't be copyrighted.

Because of this shortcoming in the law, argues, the company is free to copyright a student's notes on a professor's lectures. Far from breaking the law, they say, the company is merely copyrighting something that exists in an embodied form (i.e., the student's notes about a professor's ideas) that previously existed only in an unembodied form (i.e., the professor's lecture).

What Can Be Done?
A Model for Intellectual Property Rights Legislation

As electronic publishing, with its mass-distribution potential, increases the possibility of such ventures, higher education has begun to respond. In California, an effort is underway to pass legislation that would add new intellectual property language to the state's education code. If passed, the legislation will apply to California Community Colleges, California State University and the University of California. One of the bill's purposes is to overcome the limitations of the tangible medium problem. It does this by giving professors "exclusive ownership" of any presentation they make "in a classroom, laboratory, library, studio, or any other place of instruction, performance or exhibition." The bill also prohibits the unauthorized sale of notes or any other record of such presentations.

Similar legislation is needed in Delaware, and in the rest of the states.

We plan to lobby for such legislation. We will keep you informed.

Part of a Larger Issue

Because the academy is the center of a significant portion of the nation's intellectual work, faculty are understandably concerned about intellectual property rights. However, it is in our interest to recognize that, as important as the need is to address the kinds of problems represented by's activities, these problems are only part of a much larger issue: society's attempts to come to grips with the meaning of "ownership" in a world of rapidly advancing technologies, corporate globalism and increasingly atomized workforces.

Three ownership issues related to patent and copyright questions:

The National Writers Union v. The New York Times. Although in the early 1990s electronic publishing was still an unusual form of publication, as the decade proceeded and electronic publishing became more common, The New York Times' owners correctly sensed that a new market was emerging and that it would be in their interest to control as much product in that market as possible. Consequently, The Times altered its standard contract with freelance writers, demanding that upon selling an article to the paper an author surrender all electronic resale rights to the article. The newspaper's goal was to deepen its power over authors by taking advantage of the uncertainties implicit in the emergence of new publication technologies. By arguing that electronic publishing was not the "same" as other types of publishing and therefore represented unchartered territory, The Times hoped to muscle freelancers into surrendering over their work as it was related to this potentially lucrative new market.

The National Writers Union (NWU), however, fought back. Although the union lost the initial case, an appeals court notified the NWU on September 24, 1999 that the court had ruled unanimously in favor of the union's appeal and had reversed the initial decision.

This was an important case because The Times' policy raised serious questions about the future of copyright laws and intellectual property rights policies. Although the National Writers Union won their appeal, patent and copyright laws continue to be challenged in boundary-testing ways.

Basmati Rice. RiceTec is a Texas company. In 1997, it patented the procedures and seeds it used to produce a basmati rice variation similar to the rice cultivated for centuries in India and Pakistan. Since most of the agricultural knowledge concerning basmati rice and its variations stems from generations of Indian and Pakistani farmers' experience in cultivating the rice, Indian farmers and intellectual property rights experts have argued that RiceTec has no right to patent their rice. A 1999 Public Citizen report supports this Indian view, emphasizing that the patent is particularly onerous because, under the World Trade Organization's TRIPs (Trade Related Aspects of International Property Rights) Agreement, India will now be "required to enforce the American company's patent over Indian farmers." Public Citizen also suggests that RiceTec's "variation" on regular Basmati rice is so close to the original that its so-called uniqueness wouldn't stand up under real scientific scrutiny. If true, this alone would deny RiceTec the right to patent its rice, since a genetically engineered agricultural product must be significantly different from the original it is based on in order to qualify for a patent.

Robin Andrews, president and CEO of RiceTec, disagrees with the company's critics. "This whole flap is totally unnecessary," he says, then stresses the ignorance of his Pakistani and Indian critics. "RiceTec invented a way to produce basmati rice in the United States," he claims, "comparable to the best basmati grown in India and Pakistan and we received a patent to protect our breeding methods and seeds. Those countries do not have such laws and, thus, few people there understand what they do and don't do."

Indians and Pakistanis claim they understand very well what RiceTec has done. In 1998, a group of well-known Indians sent a letter to the U.S. ambassador to India that stated in part, "The truth is that the U.S. is pirating the intellectual property of the farmers, healers, tribals, fisherfolk of India and other developing countries."

Caterpillar, Inc. Caterpillar produces some of the world's most renowned heavy-duty equipment for agriculture, road building, forest clearing and other activities. In the early and mid-1990s, as part of a labor-management cooperation program, workers at U.S. Caterpillar plants shared technical information with management regarding the machinery in their particular plant. Theoretically, of course, management already knew the tasks that each machine performed and the correct operating procedure for each machine. However, in reality, as most industrial managers understand, the difference between what a worker knows about a machine and what a manager knows about a machine is often the difference between practical knowledge and a more generalized knowledge. It is the worker's practical knowledge that allows him or her to mend technical problems on the fly, know a machine's eccentricities and compensate for them, and extract the greatest possible longevity and productivity out of the machine. Without this worker knowledge, a plant can't operate efficiently.

Knowing this, Caterpillar fought for the creation of a standardized work program in which workers would teach management the subtleties of machine operations in different plants. The company was successful and the program went into effect. The supposed objective in this sharing of information was to improve efficiency throughout the Caterpillar organization. However, when conflicts developed between workers and company over apparently unrelated issues pertaining to job cuts and safety issues, the company used its new knowledge against the workers. When the workers went on strike, the company used the striking workers' technical knowledge of the machines to train non-union people, including managers and clerks, to operate the machinery. This was done successfully and eventually the strike was lost.

Many industrial unionists now advise workers not to give their practical knowledge of a particular machine or machines to management. They view this knowledge as their property, not the company's. As Cameron Austin, a production worker in Caterpillar's plant in Decatur, Illinois, says, "Caterpillar owns the buildings, but we own the work."

Such an example is distant from the average faculty member's experience. Yet each of the examples just given should be of interest to faculty because they suggest the intellectual property rights debate's widening scope. Familiarity with this issue in all its forms will help us to develop alliances with others who also have intellectual property rights concerns.

This Is What Happens When You Aren't Looking
by Jennifer Lambe, Department of Communication

"It has come to my attention that my lecture notes for this class are being published on the Internet without my permission." I found myself making this announcement recently to the students enrolled in, ironically, my course on Legal Issues of the Mass Media. One of the things I like most about teaching media law is that there are inevitably current events that bring course concepts to life. I didn't expect an example quite this close to home.

The day before a colleague had informed me that my lecture notes were being posted on a web site called I was vaguely aware these sorts of note-taking enterprises existed, but hadn't done much thinking about how I would respond if my notes were to appear there. Now I know: I was furious.

I logged on to later that evening... I decided to check the accuracy of the notes from a sample of my lectures. In each of three cases, the notes consisted primarily of a direct copy of my overheads, outlining the main points of each lecture. Explanatory remarks were added, but they were often inaccurate by omission. For example, one lecture addressed the legalities of different news-gathering techniques. Since some of the relevant laws differ substantially between states, in my lecture I made this point clear and then proceeded to describe the current laws in Delaware. In the lecture notes on, however, the note-taker left out the crucial information that these laws were applicable in one state only.

The potential for inaccuracy is only one small part of what troubles me about the proliferation of such sites. The core of the matter for me is that , by selling ad space on their web site, the people behind are seeking to profit financially from other people's work without their permission. This is fundamentally a matter of intellectual property . . .

Colleagues and friends have suggested that outfits like are inescapable in the Internet age, and to a certain extent I agree. But that doesn't mean they should be permitted to operate as they wish, without challenge. Existing law will be applied to the Internet through the resolution of issues precisely like this one. It is important to include our voices in that debate.

Thomas M. Pellathy Receives AAUP's 1999 Undergraduate Student Award

On March 20, 2000, Robert J. Taggart, chair of the AAUP's Student Award Committee, announced that Mr. Thomas M. Pellathy is this year's winner of the chapter's Undergraduate Student Award. Mr. Pellathy is a double major (BA) in philosophy and mathematics, and will also complete an MA in linguistics, all by Winter Term, 2001.

Mr. Pellathy has a 3.80 GPA in the three majors. He is a Eugene Du Pont Scholar and an Alison Scholar, received a Phi Beta Kappa award as a sophomore, and currently has one publication in press and another submitted in cognitive science. Not only is his academic work outstanding in its quality and integrated nature, he is also involved in several off-campus activities of regional and international significance. These include his current participation in a PBS-WHYY documentary film project on Guatemalan immigrants in southern Delaware, his application for a Delaware Humanities Forum photography show on the same subject, and his work as co-author on a book about Guatemalan immigrants. Additionally, Mr. Pellathy has interned at the International Centre for Migration Policy Development in Vienna, has tutored at Wilmington's Latin American Center, and performed volunteer work for environmental organizations in Pennsylvania and Paraguay.

The faculty who recommended Mr. Pellathy stressed his "originality and precision" as a student, as well as his ability to discover the interconnections between disparate fields, making him "as close to a Renaissance scholar as one is likely to find these days." Another professor assessed our award winner as "destined to make a major impact on the field of immigration studies and on public policies regarding immigration."

Such evaluations indicate that Mr. Pellathy is on track to impact many lives, both inside and outside of academia.