The “Virtual University,”
    Public Education, and
      Intellectual Property

      by Christopher Hanlon


My sister, who works in advertising, likes to rib me every once in a while by referring to my line of work as a “business.” She’ll point out that just like any number of commercial enterprises, colleges and universities charge fees for services rendered, depend upon the desirability of their “product” in order to secure a steady flow of revenues, and therefore plan and act in obeisance to economic forces not so different from those that preoccupy corporate planners at Microsoft, GM, Tristar Pictures, or God help us, Enron. We’ve had this conversation enough for my sister to know that the next stage of our ritual has me reply that higher education is not actually a “business,” that though colleges and universities operate within the same larger market culture as do private corporations, they are not structured around the goal of generating financial profit—and that I do not view my students as customers. Though I know she will remain skeptical, I try to convince her that the sort of “profit” public higher education generates is at once less tangible and more important than money. I make certain statements about the ideal of public higher education in American democracy, pointing out that though Thomas Jefferson wanted his gravestone to memorialize his founding of the University of Virginia, he didn’t seem to care whether it should note his presidency. I speak in Emersonian intonations about the American scholar as one of the ideals of American citizenship—not what Emerson calls the mere “bookworm,” but rather “Man [or, one would hope, Woman] Thinking,” the “whole being” or “mind at work” to whom Emerson pinned his antebellum hopes for the future of American public life. Rounding off my polemic, I remind my dear but somewhat jaded sibling that colleges and universities are committed to a notion of “value” that soars beyond the kind of value Adam Smith posited as the engine of American capitalism, pursuing not only knowledge that leverages the forces of the market, but also knowledge for the sake of knowledge. At this point, we usually call our debate a draw so as to move on to some less contentious topic.


But it’s getting a lot harder for me to speak in such tones, because the ideals I call upon in this well-rehearsed exchange—a rough approximation of the same ideals that once convinced me and most of my colleagues to become university professors in the first place—are becoming increasingly irrelevant to the decisions that many universities and colleges across America are making about what higher education ought to look and feel like during the next century. Public campuses are among the last spaces in American society that have yet to become commandeered by the aims of private enterprise; they are among the last symbols of our culture’s grudging accommodation of the idea that some resources should remain out of the for-profit domain. But those who are as committed to this arrangement as I am should know that its perpetuity is far from guaranteed. As David Nobles has aptly put it, “at the very outset of this new age of higher education, the lines have already been drawn in the struggle which will ultimately determine its shape. On the one side university administrators and their myriad commercial partners, on the other those who constitute the core relation of education: students and teachers.”[1] A shift in the attitudes that guide higher education is under way, and for those of us who live and work in the public sector of the field, this shift has potentially dire ramifications.


T
he motives that guide this shift are familiar enough: with over $200 billion in annual revenues circulating through the system of public higher education in the U.S., it’s not surprising that the tycoons at Apple, IBM, and Microsoft would like to divert more of that stream of dollars their way. What’s relatively new is the level of organization these and other entrepreneurs have achieved as they attempt to open up the untapped market public higher education represents. By forming massive “educational collaboratives” through which they may enter into “partnerships” with university administrators throughout the U.S, corporate planners and visionaries from across the NASDAQ and beyond have made real headway in their long-term goal of steering public higher education away from the mission of supplying high-quality education for students and toward the task of generating rich profits for private corporations. Today’s education entrepreneurs come armed with a powerful pretext with which to make their case that American campuses should be restructured in order to become more open to the sort of “enhancements” private corporations can offer: with the advent of the Internet, they say, education must change fundamentally in order to remain relevant. A “revolution,” they say, is afoot: having changed the ways in which we do business, entertain ourselves, and communicate with each other, the Internet must inevitably also change the way we educate.


The largest of these educational collaboratives is called Educause, on which I focus here not only because its stated philosophies seem to me the most inimical to those that have guided public higher education in this country’s past, but more simply because so many of the administrators at my university are now registered members of this organization. If you teach at a public college or university in the state of Illinois, chances are you teach at an Educause institution, since eleven out of the twelve public university campuses in Illinois, as well as 20 out of the 48 publicly-run community college campuses in the state, have already enrolled as member organizations of Educause. Indeed, over 1,800 colleges and universities, across six continents, are members of Educause, and alongside these colleges and universities are hundreds of corporate members whose dues provide the ballast of Educause’s operating budget (which this year alone stands at $10.7 million). A glance at Educause’s corporate membership is instructive to anyone who wants to know whose interests the organization is designed to serve: the 196 corporate sponsors of Educause include Adobe Systems, Apple Computers, Cisco Systems, Cognos, Dell, eCollege.com, Gateway, Hewlett-Packard, IBM, Lotus Development, Microsoft, Nortell, Novell, Palm, Questia, Sigma, SMART Technologies, Sun Microsystems, Toshiba, Verizon, WebCT, and Xerox, to name just a few of the best-known information technologies and communications companies Educause lists as its corporate members.


Under the sponsorship of these corporations, Educause operates as a thinktank that promulgates its vision for the future of higher education through roundtables, conferences, and an array of position papers. The most widely-familiar of these is a piece entitled “The Virtual University,” which urges colleges and universities to undertake what the paper’s authors accurately describe as a “redefinition of quality” in higher education. While traditional ways of measuring quality in higher ed. may have worked well for the analog age (such traditional measures include “the size of libraries, student-faculty ratios, the number and the size of the grants and contracts won by the faculty”) such barometers of quality are now irrelevant, we are told. According to the authors of “The Virtual University,” this is because students have gotten smarter. More specifically, “Higher education’s consumers [those are the people we once called “students”] are becoming much more sophisticated” than their counterparts from years ago. The sophistication of today’s student-consumers is evident in the fact that they know what they want in exchange for their tuition: an education as hassle-free as downloading a song from Napster or sending off for a DVD from Amazon.com. In short, since “Consumers will exert their inexorable influence on higher education,” the authors of “The Virtual University” have tough news to break: “The era of a campus-centric model is ending.” [2]


The primary support Educause spokespeople tend to append to such predictions is their contention that classroom-based teaching makes bad fiscal sense for the information age. Instead of servicing a mere score or two of student-consumers, as is usually the limit for courses scheduled to meet in physical spaces, virtual courses can deliver the same course content to hundreds of these paying customers. But it is not only the limitations of geography and expense of university space that cause Educause and its corporate sponsors to scoff at the traditionally-run college course—they are also appalled at the figure of the tenured professor, whose very existence runs counter to their most basic assumptions about what is desirable in a workforce. What corporate planners of every industry value most in a workforce is “flexibility”—that is, the ability to hire and fire quickly in response to the ups and downs of a volatile economy. Clearly, the institution of tenure does not make for a flexible workforce. Moreover, tenured faculty (1)
cost more than the sort of “faculty” required to administer a uniform syllabus made up of uniform readings tested by uniform quizzes calling for uniform answers, and (2) they usually tend to resist that sort of educational model in the first place. And so for the corporate trustees-in-waiting of Virtual U., the answer to the problem is obvious: persuade administrators to stop hiring tenured faculty so that they may redirect revenues toward investing in information technology and hiring cheaper, non-tenured faculty to operate it. As William Massy and Robert Zemsky point out in one Educause position paper, “technology provides more flexibility than traditional teaching methods,” since “The ‘career’ of a workstation may well be less than five years, whereas that of a professor often exceeds 30 years. Workstations don't get tenure, and delegations are less likely to wait on the provost when particular equipment items are ‘laid off.’” By using budgets to purchase more computers rather than to hire more people (what Massy and Zemsky call “shifting away from the handicraft methods” that have dominated higher ed. until now), universities and academic departments “will gain a larger zone of flexibility as the capital-labor ratio grows. [3]


So the institution of tenure is one of the obstacles educational collaboratives like Educause face as they attempt to re-orient public systems of higher education along corporatist objectives. Another is that, as noted by Educause guru Carol Twigg in “A Vision of a Global Learning Infrastructure,” “higher education is a highly regulated industry.” From regional accreditation bureaus to the Department of Education, from state licensing agencies to multi-campus governing boards, the decisions that shape and mold public higher ed. are largely made by groups of administrators appointed by elected officials or hired by institutions themselves. Bodies such as these, Twigg contends, “tend to perpetuate the status quo”; that is, they make it very difficult for Educause lobbyists to make headway toward transforming the public brick-and-mortar campus of scholars, teachers, and students into the publicly-funded, privately profitable, brick-and-click institution of “knowledge workers” and student-consumers. And so part of the answer Educause now pursues is that of deregulating public higher ed.; to this end, the organization has set aside over a million dollars this year for what it calls its Federal Relations and Outreach program, which includes the short-term goal of getting Educause members appointed to the leadership of the Secretariat of the American Council on Education (ACE), the major higher education council in Washington, D. C. Along with other initiatives, this plan will help Educause to achieve its vision of a deregulated system of higher education. “Local and state regulation should be replaced by national and global frameworks in much the same way as we have deregulated the railroads, airlines, securities exchange, and banking industries,” Twigg argues, since “Deregulating higher education will allow a wide range of providers to develop and deliver content and to set standards.” One wonders which “providers” who will now be free to “set standards” Twigg imagines here. Will they be the newly re-tooled virtual universities, or will they be the corporate entrepreneurs for whom these virtual universities will serve as front organizations? Or will there indeed be any meaningful difference left by that point?


Does all of this mean that if granted their wishes, Educause and its corporate sponsors would send seminar rooms and professors the way of the Edsel? Not completely, Educause president Robert Heterick assures us. In order to assuage the sense of unease many may still feel about the wholesale transfer of American higher education to the private sector, Heterick points to a comforting example: namely, the success of the Wal-Mart department store chain. Attendant to the rise of mega-chains such as Wal-Mart, “we have seen the rise of specialty stores for consumers seeking something more than the fixed inventory of the mega-chain store,” the emergence of a niche market for consumers who are willing to pay more for products that are more unique, less mass-produced, or of higher quality than those the local Wal-Mart offers. In a similar way, Heterick assures us, the Wal-Martification of public higher education will undoubtedly produce a subset of students who “seek something more,” a niche market of students who still crave close contact with real professors on physical campuses—“customers” who “are willing to pay a premium” for what will become the educational equivalent of organic produce or Sumatra coffee.[4] And so emerges the blueprint of higher education in the United States as these social engineers chart it: there will of course always be a small number of ivory towers left in which the affluent few may indulge an archaic taste for seminar rooms and lecture halls, for one-on-one conferencing and for carefully written and read term papers. These institutions will be for the same sort of people who “prefer” to shop on Rodeo Drive or Madison Avenue. The rest of us will be left in the able hands of the same market that has brought us Wal-Mart.


The question of whether corporate-driven organizations like Educause will succeed in realizing such plans depends to a great extent on the types of contracts universities and their employees agree upon concerning the intellectual property rights of faculty. As David Nobles has explained, tenured faculty now confront a type of “player piano” dilemma as they navigate the brave new world of academe in the information age: if colleges and universities can claim proprietary rights over the course materials professors place on the world-wide web, there will be few practical obstacles barring institutions from appropriating these materials as the basis of courses administered online by low-paid, annually contracted “knowledge workers.” After all, if “knowledge” is really just another “product,” as is made clear in “The Virtual University,” it makes sense for colleges and universities to accumulate as much of that product as possible; stored in the mainframe, all of that “knowledge” sits ready for efficient delivery to the student-consumer. Indeed, why not cut out the middle man? When tenured faculty leave or retire (as Massy and Zemsky indicate with delight, attrition of any given institution’s tenured faculty is usually in the neighborhood of three percent a year), Virtual U. doesn’t need to hire a tenure-track replacement—one doesn’t need a Ph.D from Yale to tell 250 customers which icons to click.


At my university, faculty are now lavishly encouraged to place their course materials online through TEDE (Technology Enhanced and Delivered Education) grants made available to almost anyone willing to commit their course content to the university server. Browsing through the online course library at my university’s web site, one finds course proposals, catalogue descriptions, and also course syllabi. But precisely who owns these syllabi? As is the case at many other universities across the United States, the university regulations at my institution are somewhat vague on this question, mainly because these regulations were written before anyone was talking about online education. According to these regulations, course syllabi may fall into the category of intellectual property known as “works for hire,” for which the copyrights for “works created as part of the employee's assigned duties and activities” are allocated to the employer rather than the creator of the work. [5] Since the passage of the 1909 copyright act, academics have usually been considered an exception to the work-for-hire provision, since academic freedom would seem to require that teachers and scholars retain control over both their publishable writing and their written course materials. But education reformers from Educause and elsewhere have inveighed against this exception, insisting that since a 1976 revision of the copyright statutes, “the creation of instructional materials is clearly work made for hire … though most institutions follow the default practice that the instructor owns those materials he or she creates, the default position in law is that the institution owns them.”[6]


At Eastern Illinois University a Task Force on Distance Learning and Intellectual Property (DLIPR) sponsored by University Professionals of Illinois, the faculty union, recently took a step forward by submitting draft language for an agreement that would categorize course materials as the intellectual property of the authoring faculty member. Except in the case of specially-commissioned works, the Taskforce recommends that “an employee (faculty member or academic support professional) who produces any work shall own the copyright therein and have exclusive rights thereto …”[7] Further, the Task Force recommends that “The Board waives any claim to revenues generated by the commercialization or sale of an employee-owned copyrighted work” (Paragraph 3, section a). In the preamble to the draft material it has submitted, the Task Force recognizes “that the creation of educational and scholarly materials can be of benefit to the author, the University, and the public and is to be encouraged.” But at the same time, the Task Force insists that “Educational materials and other intellectual property are created in an environment of dynamic interaction between teacher and learner and do not by themselves constitute a course apart from the faculty member who created them …” (Paragraph 1, section d).


As of this writing, Eastern’s administration has indicated some hesitancy to endorse such language. Provost and Vice President for Academic Affairs Blair Lord has suggested that the Task Force’s findings are too sweeping, including patentable inventions and thus depriving the university of its traditional right to benefit from the work it sponsors through its funding of research and equipment. “The policy that DLIPR came up with,” Lord states in a recent UPI interview, “applies to everything—patentable materials as well as courseware—and the conversations are going to have to be re-engaged around that.” Since the current language of the draft, Lord suggests, “applies not just to web materials but to grass seed and Gatorade,” there is a fair chance that the University administration at Eastern will find it unacceptable as stands.[8]


The question of who owns copyrightable course materials is crucial in terms of what sorts of colleges and universities will be available to future students who find themselves stuck on the wrong side of the Wal-Mart divide. And perhaps the most useful perspective on this question comes—ironically enough—from Carol Twigg, author of many an Educause statement, who suggests that “By stepping back and asking [ourselves] a different question—‘What do we want to encourage on our campuses?’” we might arrive at an amicable solution. Twigg imagines that when faculty members are invited into such a conversation, they will realize that what they want more than anything else is to share in the financial profits to be reaped from Educause’s “transformation” of the educational process. “Faculty who are well compensated and able to share in the commercial success of their work will be motivated to create,” and thus to facilitate the founding of Virtual U., she writes.[9] I am willing to bet otherwise. I am willing to gamble that if faculty and administrators bring this ingenious question to the problem of intellectual property and distance learning, the results of that conversation will be wholly other than those Twigg and Educause cynically imagine. Public higher learning isn’t a business yet, after all.




Notes

1) David Nobles, "Digital Diploma Mills: The Automation of Higher Education" (First Monday. October 1997) <http://firstmonday.org/issues/issue3_1/noble/index.html>

 

2) Carol A. Twigg and Diana G. Oblinger, “The Virtual University: A Report From a Joint Educom/IBM Roundtable, Washington, D.C.” (EDUCAUSE, November 1996) <http://www.educause.edu/nlii/VU.html>

 

3) William F. Massy and Robert Zemsky, “Using Information Technology to Enhance Academic Productivity” (EDUCAUSE, June 1995) <http://www.educause.edu/nlii/keydocs/massy.html>

 

4) Robert Heterick, “Time is Nature’s Way of making Sure Everything Doesn’t Happen at Once,” The Center for Academic Transformation (The Learning Marketplace, March 2000) <http://www.center.rpi.edu/LForum/LM/Mar00.html>

 

5) See Eastern Illinois University’s Board Of Trustees Regulations, Article 16, Section 3, Subsection 3. < http://www.eiu.edu/~auditing/botregs/regulat02.htm#A.16>

 

6) Carol Twigg, “Who Owns Online Courses and Course Materials? Intellectual Property Policies For A New Learning Environment” (The Pew Learning and Technology Program: 2000) 22. May be downloaded in PDF at < http://www.center.rpi.edu/PewSym/mono2.html>

 

7) “DLIPR Taskforce Draft Language on Intellectual Property, 4-June-01” Section 3, paragraph a. <http://www.eiu.edu/~EiuUpi/DLIP/dliprdraft2.html>

 

8) See “A Conversation with Blair Lord Vice President for Academic Affairs and Provost.” (UPI News, Jan. 7, 2002) <http://www.eiu.edu/~EiuUpi/Newsletters/lordinterview.html>

 

9) Twigg, “Who Owns Online Courses and Course Materials? Intellectual Property Policies For A New Learning Environment.” p. 24.

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