Senate Agenda April 25, 2000
The University Faculty Senate
Tuesday, April 25, 2000, at 1:30 PM in
112 Kern Graduate Building
[In the case of severe weather conditions or other emergencies, you may call the Senate Office
at (814) 863-0221 to inquire if a Senate meeting has been postponed or canceled. This may be
be heard concerning the status of any meeting. You may also leave a message at that time.]
A. MINUTES OF THE PRECEDING MEETING -
B. COMMUNICATIONS TO THE SENATE - Senate Curriculum Report (Blue Sheets)
C. REPORT OF SENATE COUNCIL - Meeting of April 11, 2000
D. ANNOUNCEMENTS BY THE CHAIR -
E. COMMENTS BY THE PRESIDENT OF THE UNIVERSITY -
F. FORENSIC BUSINESS -
Faculty Affairs, Libraries and Research
(I). ADVISORY/CONSULTATIVE REPORTS -
G. UNFINISHED BUSINESS -
Committees and Rules
H. LEGISLATIVE REPORTS –
I. ADVISORY/CONSULTATIVE REPORTS -
J. INFORMATIONAL REPORTS -
K. NEW LEGISLATIVE BUSINESS -
L. COMMENTS AND RECOMMENDATIONS FOR THE GOOD OF THE UNIVERSITY -
Note: The next regular meeting of the University Faculty Senate will be held on Tuesday, September 12, 2000, at 1:30 PM in Room 112 Kern Building.
THE PENNSYLVANIA STATE UNIVERSITY
The University Faculty Senate
University Park, PA 16802
(814) 863-1202 – phone (814) 863-6012 – fax
Date: April 14, 2000
To: Murry R. Nelson, Chair, University Faculty Senate
From: Louis F. Geschwindner, Chair, Senate Committee on Curricular Affairs
The Senate Curriculum Report, dated April 11, 2000, has been circulated throughout the University. Objections to any of the items in the report must be submitted to the University Curriculum Coordinator at the Senate Office, Birch Cottage, e-mail ID email@example.com, on or before May 11, 2000.
The Senate Curriculum Report is available on the web. It can be accessed via the Faculty Senate home page (URL http://www.psu.edu/ufs). Since the Report is available on the web, printed copies were not distributed to the University community. An electronic mailing list is used to notify individuals of its publication. Please contact the Curriculum Coordinator at the e-mail ID indicated above if you would like to be added to the notification list.
SENATE COMMITTEE ON FACULTY AFFAIRS, LIBRARIES AND RESEARCH
Interim Report of the Task Force on Intellectual Property and Procedures
The attached report is being presented to the University Faculty Senate as a Forensic Session on April 25, 2000.
AN ABBREVIATED VERSION, FOR DISCUSSION PURPOSES ONLY, OF THE SIX RECOMMENDATIONS OF THE TASK FORCE ON INTELLECTUAL PROPERTY POLICIES AND PROCEDURES
Below you will find brief versions of the six recommendations. We would like your comments on all the recommendations, but feedback on #3 and #4 are particularly necessary.
The Task Force recommends that:
Interim Report of the
Task Force on Intellectual Property
Policies and Procedures
The Pennsylvania State University
March 31, 2000
List of Appendices 3
EXECUTIVE SUMMARY 5
Chapter I. INTRODUCTION 9
Chapter II. PATENTS, LICENSING, AND THE PENN STATE RESEARCH FOUNDATION 14
Patents and Licensing 15
Penn State Research Foundation (PSRF) 18
Chapter III. START-UP COMPANIES 20
Chapter IV. COPYRIGHT AND LICENSING OF SOFTWARE AND DATABASES 22
Chapter V. COURSEWARE AND CLASS NOTES 28
Conflict of Interest 30
Class Notes 35
Chapter VI. IMPLEMENTATION, EDUCATION, AND ADMINISTRATIVE SUPPORT 37
List of Appendices
Appendix A: Task Force Membership
Appendix B: Definitions
Appendix C: Benchmarking
Appendix D: Bibliography of Websites
Appendix E: Conflict of Interest Policy and
Intellectual Property Agreement Form
Supporting materials available at www.
Appendix F: Patent Policy Statement
Appendix G: Copyright Law
Summary of the Digital Millennium Copyright Act
Ownership and Use
In November 1998, Executive Vice President and Provost Rodney Erickson, then Vice President for Research, appointed a Task Force on Intellectual Property Policies and Procedures (for Task Force membership, see Appendix A) and charged it to review existing University policies and procedures and to provide recommendations that would:
The international transition to an information and technology-based economy has introduced a set of issues and opportunities that are redefining the nature and use of intellectual property within the University.
The Task Force has identified key issues and needed changes in policies, procedures, and organizational structures. Adoption of its recommendations will enable the University to achieve the three fundamental goals of intellectual property management:
The Task Force has examined five areas. Its recommendations and rationale for each of these areas follow. Each rationale consists of three parts. The first part indicates how the recommendation differs from existing circumstances. The second part indicates how the recommendation will benefit Penn State faculty, staff, and students. The third part indicates how the recommendation will benefit the University. The Executive Summary concludes with a recommendation to the Vice President for Research about most effective use of the information gathered by the Task Force and contained in this report.
The Task Force recommends that the University should make a significantly larger investment in personnel and resources to bring Penn State’s patenting and licensing activities to a level appropriate for a major research university.
II. Start-Up Companies
The Task Force recommends that Penn State should increase its efforts to assist in the formation of start-up companies based on discoveries made at the University, and that The Penn State Research Foundation (PSRF) should redirect its mission to play a central role in this activity.
III. Copyright and Licensing of Software and Databases
The Task Force recommends that the University reaffirm its current policy that a faculty member owns his or her works of scholarship such as research monographs, journal articles, novels, plays, musical compositions, and textbooks. Instructional materials in the form of courseware are a special class of created works and require a separate policy based on such issues as conflict of interest and conflict of commitment. Since legislation on databases and software currently is pending, the University should monitor the legislative process and be prepared to update University policies as soon as legislation becomes law.
IV. Courseware and Class Notes
The term "courseware" refers to technology-based instructional materials, including software tools and applications, intended for use in credit and non-credit courses. The Task Force recommends that faculty, staff, or students who wish to sell courseware to an educational competitor of Penn State first must secure appropriate approval. Approval will require an affirmative answer to two questions: (1) Does the sale conform to the University’s policies concerning conflict of interest and conflict of commitment? (2) Is the courseware owned entirely by the faculty or staff member?
V. Implementation, Education, and Administrative Support
The Task Force recommends that all Penn State offices dealing with intellectual property be consolidated and placed under the supervision of the Vice-President for Research, who will have overall responsibility for coordinating and administering all aspects of the University’s intellectual property policies and procedures. This will include patents, copyrights, trademarks (excluding Penn State logo licensing), and licenses (both the creation of intellectual property and the interpretation of the legal use of intellectual property). The Vice President for Research and the Provost should coordinate efforts on issues affecting teaching. The Vice President for Research should supervise the intellectual property educational programs mandated by the DMCA.
VI. Uses of This Report
The Task Force recommends that the Vice President for Research form the committees necessary to transform these introductory recommendations into specific policies and procedures; each new policy will be brought to the University Faculty Senate as an advisory/consultative report.
The Task Force notes that, while changes in the environment have caused it to rethink the University's posture concerning intellectual property, it views these changes much more as an opportunity than as a threat. The opportunity is associated with a vastly enhanced potential to address the fundamental goals described above through a restructuring of the intellectual property environment at Penn State. The threat is the potential loss of those benefits and the missed opportunity if Penn State simply continues with business as usual.
The Task Force stresses its overriding, crucial recommendation: the University must invest in these changes to preserve Penn State’s reputation as a leading research university.
Chapter I. Introduction: Intellectual Property and Penn State
The University exists to create new knowledge, to preserve what is already known, and to pass on both new and established procedures to its students and to society at large. Regarding the creation and transfer of knowledge and ideas, intellectual property is transferred in a number of ways. Graduate students and undergraduates leave the University and take their knowledge and ideas to their employers. Faculty and staff transfer knowledge through publishing, teaching, attendance at conferences, professional networking, consulting, and outreach activities. Joint University-industry research projects also produce intellectual property. Legal mechanisms for protecting the intellectual property created include patents, licenses, copyrights, and trademarks. While most of these activities center on the knowledge and expertise of faculty members, they do not all involve intellectual property in a way where the University’s larger interests are at stake. However, in the process of creating and transferring knowledge, faculty sometimes create products that have value as intellectual property and should be protected, either through patents or copyright. The goal of the Intellectual Property Task Force has been to protect the interests of the faculty, staff, and students and the University in these cases.
Types of Intellectual Property
Intellectual property generated by the University primarily falls into two major categories, patents and copyrights. Patents protect inventions and discoveries (mainly in agriculture, medicine, the sciences, and engineering). Examples include specifications for inventions and devices, new chemicals and materials, new biological entities, and new technical processes. Copyrights protect "original works of authorship fixed in any tangible medium of expression" such as written works, audio and video programs, and technology-based instructional materials. Additionally, patented and copyrighted creations may also be protected through licenses and some through trademarks.
These two categories of intellectual property are quite distinct, with relatively little overlap historically, and they need to be considered and organized separately, while not ignoring points of overlap. Traditionally at Penn State, patents and licensing agreements have been the major focus of attention, and they will probably continue to remain so in the near future. However, there are significant developments occurring in copyright law in response to technological change that will affect how faculty and students create works and use the intellectual property of others. For these reasons, it is essential that the University further develop and strengthen programs in both these areas.
The Current State of Intellectual Property Issues
The Changing Environment
The information revolution and the international transition to an information-based economy have introduced a set of issues and opportunities that are redefining the nature of intellectual property and life within the university itself. The traditional values of open access to information and the faculty member’s right to use his or her own ideas are being reexamined. Faculty, staff, and students increasingly are becoming dependent upon electronic classrooms, computing, the Internet, software, and databases in generating new knowledge. The new provisions in the DMCA are changing the fundamental principles of access to, and use of, information.
Keeping current on the number of patent, copyright, software, and database initiatives before Congress and cases in the courts is a daunting challenge. The legal environment is changing rapidly. As an example, copyright and patent laws have become co-mingled to the point where it is possible for two separate entities to "own" the same intellectual property--one owns the copyright, and the other owns the patent. A landmark case in the Federal Circuit Court of Appeals in 1998 now has made it possible to apply for patents for "business methods," which will have a tremendous impact on how software embodying processes as well as copyrightable products is protected in the future, with major ramifications for the development of technology-based instructional materials. Patent law is undergoing change also in order for the U.S. to accommodate the different regulations in Europe and the Far East. New copyright legislation is being influenced heavily by the private sector as information takes on greater economic value. The University community needs to understand the changing legal scene regarding both patents and copyrights (see Appendices F and G as well as Supporting Materials available on the web).
Furthermore, the once distinct boundaries between universities and both private and public sector organizations are narrowing: these organizations are relying more on universities for fundamental technical developments while universities are relying more on such organizations to support their activities.
In addition, there is growing recognition at Penn State of the need to reengineer the way it concerns itself with intellectual property and to be more aggressive about transferring University-developed intellectual property to effective use for the good of society.
Conflict of Interest and Conflict of Commitment
These changes in the intellectual and legal environment have compelled faculty organizations and universities across the country to reexamine the principle of conflict of interest. For example, to what extent do faculty members who develop instructional materials using software (courseware) and sell them to other universities or to for-profit educational competitors find themselves entangled in conflict of interest and conflict of commitment issues? The Penn State community needs to be aware of the debates now taking place across the nation as software and the Internet raise new questions about the central issues of ownership and use (see Chapter V for more information on Conflict of Interest and Conflict of Commitment).
Benefits of Intellectual Property Utilization
Penn State and its constituency will benefit considerably through intellectual property generation and protection in the following ways:
Principles and Goals
The Task Force developed a set of principles designed to balance the rights and responsibilities of all parties involved in the creation, use, and commercialization of intellectual property.
Penn State’s intellectual property organizational structure, policies, and procedures should:
This report makes a series of recommendations concerning intellectual property management at Penn State that are designed to achieve the following goals:
The Task Force strongly emphasizes that Penn State must invest in these changes to preserve the University’s reputation as a major research university.
Critical Areas That Need Improvement
The Task Force has identified the following critical areas that must be improved.
Successful intellectual property policies and procedures will:
In regard to administrative restructuring, the following specific changes should be made:
Chapter II. Patents, Licensing, and the Penn State Research Foundation (PSRF)
Recommendations for Patents and Licensing
Ownership issues should be decided early in the process of creating intellectual property to help ensure the appropriate use of intellectual property and to protect individuals and the University.
Recommendations for PSRF
Central to the relationship between faculty, staff, and students, and the University administration is the question of the ownership of intellectual property and how it is administered. These issues are discussed in the following sections.
A. Patents and Licensing
Faculty, Staff, and Students
Importance of Faculty, Staff, and Student Involvement. A broader base of intellectual property involvement within the University is needed to foster the clear objectives of having more intellectual property participation by the University community. Having the authors and creators take an active role in improving the quality of disclosures will lead to a better and less expensive patent and/or copyright product. The ultimate success with commercialization, notwithstanding the utilization of highly skilled professionals, may well depend on the inventors’ knowledge and relationship with business and industry.
University Intellectual Property Policy. All University personnel, including graduate and undergraduate students, should be subject to the Penn State intellectual property policies and procedures. A copy of the policy and procedures should be given to all personnel (faculty and staff) when first employed by the University, and to students when first admitted to the University. All University employees should be required to sign the Penn State Intellectual Property Agreement form as a condition of their employment.
Intellectual Property Ownership. Subject to the specific provisions of a University/sponsor ownership agreement established before any research has commenced, the University should own all inventions conceived and/or reduced to practice by University personnel using University facilities. Likewise, inventions conceived and/or reduced to practice within a field or discipline in which the University provides substantial support to the inventor are also the property of the University. Thus, to ensure appropriate use of intellectual property and to protect individuals and the University, ownership issues should be decided early in the process of creating potential intellectual property.
In the event that ownership questions arise, it is expected that the faculty member, the department head or director, and the dean or administrative officer of the academic unit should decide these matters with advice from the appropriate intellectual property administrator. Similarly, for staff, the individual, the immediate supervisor, and the administrator of that University office should make the necessary decisions. If mediation is necessary, the Assistant Vice President for Research and Director of Technology Transfer should be considered as the mediator. The final line of appeal will be the Vice President for Research.
Students have different roles in the Penn State community. A means of characterizing the various roles that students can play is necessary to evaluate the responsibility or reward a student can expect for participation in a given situation. However, faculty should be careful to give students proper recognition for their participation in creating any form of intellectual property including authorship as well as a significant role in creation of works or inventions. In those cases where students have played a significant role, they should also be recognized in terms of real or potential compensation. In an era of collaboration and teamwork, it is important to ensure that all members of a team who participate in the creation of intellectual property are recognized appropriately. In situations where non-Penn State students participate in Penn State research teams, their role should be clearly documented at the beginning of their participation.
Transfer of Patent Rights to Inventors. The University should allow inventors to claim full patent rights if the University does not file a regular patent application within six months of either (1) the date of submission of an invention disclosure, or (2) the date of filing a provisional application, or (3) the date of such a filing, whichever is later, except where the sponsor’s policies may require otherwise.
Importance of Timely Intellectual Property Disclosure. All inventions made within the University environment and deemed worthy of protection should be disclosed within the University system by the creator(s) as soon as possible, even those believed by the creator(s) to be unrelated to their field or discipline or those that do not involve University support.
Faculty and staff who believe they may have developed an invention should immediately notify their department head, administrative supervisor, or college/unit representative and complete a disclosure form that defines the nature of, and provides the basis for, a legal claim to the invention or work in question.
The commercial exploitation of inventions is a highly competitive enterprise; therefore, it is crucial that creators begin the university’s disclosure process as soon as the possibility of an invention becomes evident. Delays give others an opportunity to establish claims that may deprive the original inventor(s) of their rightful recognition and compensation. Some other considerations follow:
However, it is emphasized that the implementation of these recommendations will require significant additional resources. Currently, the Intellectual Property Office does not have adequate funds to patent all the worthwhile inventions produced at this time that require protection (see Appendix B: Benchmarking).
Industrially Sponsored Research
Rights to inventions and works arising from industrially sponsored research should be prescribed in a research contract containing a work statement and other terms and conditions of the award.
Non-government sponsors should generally receive the first option of a license to technology resulting from research that they supported. The University, as the contractor for the specified research, must ensure that it does not commit rights to technologies to multiple sponsors.
Gifts of Intellectual Property to the University
In recent years, several companies have donated patent portfolios to the University. Although such donations could be a source of new revenue for the University, they may also require the investment of limited resources for patent maintenance or may dilute the institutional focus on the licensing of University-generated technology. For these reasons, future donations of intellectual property should be accepted only when the following conditions apply: (1) at least one faculty member in the University has the interest and the appropriate technical expertise to assist in the further development or marketing of the technology; (2) the donation includes sufficient resources to maintain the patent portfolio as within federal IRS rulings; and (3) the University can, at its option, assign the donated portfolios for licensing to an independent licensing agent.
Summary of Issues That Need To Be Resolved
Historical Mission. PSRF is a wholly owned subsidiary, 501(c)(3), of The Corporation for Penn State. The Foundation is a non-profit organization dedicated to fostering and advancing scientific research within the Commonwealth of Pennsylvania and to supporting the development of inventions at Penn State. The Foundation provides for those functions that require legal separation from the University proper, to prevent or mitigate real or perceived conflicts of interest. A Board of Directors oversees PSRF’s activities.
PSRF has played a vital role in Penn State becoming a major research university with extensive research and development support from government and industry sponsors. There is great opportunity for PSRF to continue to be instrumental in enabling the University to commercialize intellectual property for the good of the public and the University. However, in view of the rapidly changing nature of intellectual property utilization, and especially the imperative for the spin-off of start-up companies from the University, PSRF’s mission and structure should be reviewed and revised as necessary to reflect this report’s goals and recommendations.
Future Mission. PSRF should play a key role in the conversion of the University’s basic research activities and applied research into commercialization initiatives. However, there are compelling reasons to do so as a separate organizational entity. Penn State must carefully consider issues of potential institutional liability and its fiduciary responsibilities. It needs to avoid or reduce conflicts of interest and conflict of commitment inherent in the differences between academic and corporate missions. Also, there are fundamental differences in taxation requirements for non-profit educational institutions versus for-profit companies. In addition, it is essential for the University to avoid the appearance that tuition revenues might be used to underwrite commercial ventures.
PSRF should serve as an "outside of the University" independent entity to facilitate, support, and enhance all aspects of the University’s intellectual property policies and procedures. PSRF’s Board of Directors should continue to be predominantly non-University employees.
The Foundation should:
Judgments and Actions that are the Responsibility of PSRF. As approved by the Board of Trustees, the Vice President for Research should establish guidelines for the distribution of revenues received from PSRF. Net proceeds should be divided among the creator(s), the creator(s)’ administrative unit, and PSRF. In general, the present distribution of royalties, in which 40 percent goes to the inventors, 20 percent to the college or organizational unit, and 40 percent to PSRF, is considered to be a satisfactory arrangement. The following factors should be considered in determining what percentage the creator(s) and the administrative unit(s) will receive, if cases fall outside existing policies as determined by the Vice President for Research:
If there are multiple creators, the designated royalty percentage should be divided equally among the creators unless the creators reach a different agreement.
To what extent did the creator(s) assist in marketing the intellectual property rights?
Inventor Incentive Awards. PSRF should continue to provide an incentive award of $1,000 to be given to an inventor if and when the Foundation applies for a patent based on the inventor’s disclosure. If there are multiple inventors, the incentive should be divided between the inventors. An equal distribution between all of the inventors should be the preferred policy in order to recognize the contribution of students and postdocs as well as faculty to the invention. The incentive award is not part of any royalty distribution, but a separate amount given by the Foundation to promote the creation of intellectual property.
Although the original mission of PSRF was connected with the patenting of University inventions and the distribution of royalties, it is recommended that this mission should be changed to focus also on start-up companies as will be discussed in the following chapter.
Chapter III. Start-up Companies
Advantages to Penn State. There are clear advantages to Penn State for encouraging the start-up of companies that utilize the intellectual property generated through the creativity of our faculty, staff, and students. Indeed, a willingness to invest time and resources to foster this activity is a characteristic of the best research universities in the country. Universities that successfully utilize their intellectual property in this way can look forward to demonstrating their commitment to bring the benefits of academic research to society at large, at the same time ensuring a source of revenue to support the educational mission of the institution. Creating new businesses is one way of transferring knowledge to the public in a timely and efficient manner that makes it possible for Penn State to help integrate the University’s intellectual property into the marketplace.
New business development is an important part of the overall development activity of the University. History indicates that successful start-up companies develop a special loyalty to the University and find ways to share their success. New businesses hire students and faculty spouses/partners, use faculty as consultants, enrich the University’s environment, and bring real-world perspectives to teaching and research programs. They also give gifts, grants, and endowed professorships to support University development activities. For all these reasons, new business development should be encouraged as an important intellectual property outlet for faculty, staff, and students.
How Can This Be Accomplished? The University must do far more in promoting start-up companies than simply encouraging faculty, staff, or graduates of the University to become entrepreneurs. The University must become involved at several different levels including those of the Intellectual Property Office, the Penn State Research Park, the Industrial Research Office, and especially PSRF. Alumni of the University should be encouraged to take an interest in the start-up program with respect to both advice and possible investment. The various offices under the direction of the Vice President for Research should play a major role in this activity by providing advice, encouragement, and introductions to sources of funding, both private and public.
The same principles and goals that pertain to other University intellectual property issues and opportunities should guide the development of new businesses. For example, inventors should receive the same share of any royalties irrespective of whether their invention is licensed to an independent company or to a new start-up company in which they have some proprietary interest. University evaluation and financing of new businesses should be market-driven. Although start-up companies emanating from Penn State technology should be financed by the private sector, the University should consider taking some equity in lieu of cash payments through licensing agreements with start-up companies.
The Role of PSRF. Because of its legal separation from the University, PSRF has the capability to become much more directly involved in the start-up process than any other component of The Corporation for Penn State. PSRF should be encouraged to do more in the future than has been done in the past, especially with respect to generating financing for new enterprises.
If PSRF establishes a fund to assist start-ups, it should be managed by individuals who are qualified to make business decisions on the viability of new start-ups. The evaluation and funding of new companies are difficult challenges and require a great deal of analysis. PSRF needs to utilize members or advisors who are familiar with the procedures and problems of start-ups and the development of commercial corporations. This is to help ensure that PSRF funds are invested in business opportunities with the best payoff potential.
Educational Component. The educational component of spin-off company formation is an important and often overlooked aspect. Graduate students and interns in business, law, science, and engineering are often eager to learn the basics of start-up company formation. Examples exist of team projects being organized in which graduate students in the different fields work together to conduct market surveys and to help write a business plan for a new company. Such experience is invaluable for the students and provides preliminary materials that helps decision making by the University and the entrepreneurs. Thus, University intellectual property policies should promote, foster, and support a business-sensitive environment as part of its mission to disseminate knowledge through the integration of teaching, research, and service.
Chapter IV. Copyright and Licensing of Software and Databases
Explanation erm "copyright" refers to federal legal protection for many forms of "expression" (as contrasted with facts or ideas, which cannot be protected by copyright). Because so many changes in regard to copyright law have occurred in recent years, the University needs to review and update its copyright policies and procedures. In order to do so, the University must look at what changes have occurred and what factors it must take into account as it adopts new policies.
The term "licensing" refers to another form of legal protection based on contract law. Licensing is becoming increasingly employed as an alternative to copyright law as a means for controlling how copyrighted works are used in an electronic environment.
Review of Recent Changes
The Copyright Act of 1976 established the fundamental legal framework for all matters concerning copyright today, and it provided the basis on which the University grounded its 1982 Copyright Handbook. Since then, the following changes have occurred.
Congress has passed new laws affecting three important areas:
The courts have made key decisions on a wide variety of issues including:
The Digital Millennium Copyright Act of 1998 (DMCA) defined a new legal regime for worldwide digital communications. It established that online-service-providers (OSPs) could be held liable for infringement of digital works under certain circumstances. It also required that all universities seeking protection from liability as OSPs must establish educational programs about copyright for faculty, staff, and students (see Appendix G: Copyright Law).
Other changes include:
Ownership and Use
Copyright laws and licensing apply to universities in the areas of ownership and the use of copyrighted works.
Ownership. The issue of ownership is affected by seven considerations: collective enterprise, prevailing academic practice, value added by the University, special circumstances, control, flexibility, and early disclosure.
Collective Enterprise. In the wake of the passage of the DMCA, the Association of American Universities (AAU) and the American Association of University Professors (AAUP) have independently arrived at a middle ground in which both organizations emphasize scholarly work as a "collective enterprise." A collective enterprise is one whose products are owned in some way or other and in varying degrees by both the university and the faculty member or members involved. As the CSU/SUNY/CUNY guide on ownership in higher education says, "An academic environment that best advances knowledge will view copyright ownership as a set of opportunities that may be shared within the university community rather than an ‘all-or’nothing’ property concept. To optimize the availability of new works for teaching and scholarship, copyright should not be viewed as a simplistic claim of title, but should instead be understood as a divisible bundle of rights that may be allocated among different parties to provide maximum opportunities for sharing and learning."
Prevailing Academic Practice. AAUP notes that "it has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes." These include lectures and other types of instructional material, which some universities (including Penn State at an earlier time) have attempted to define as falling within "the scope of employment" (thus making them, by definition, owned by the University as legal "author"). The courts have generally held that lectures and other types of intellectual materials are owned by the teachers who create them, in part owing to the tradition of "academic freedom."
Value Added by the University. In contributing "specialized services and facilities" to support the production of copyrighted works, as the AAUP recognizes, the university may be seen as adding value to the products of individual creators in special circumstances such that the "University may fairly claim ownership of, or an interest in, copyright in works created by faculty (or staff) members."
Special Circumstances. There are three such special circumstances:
Control. The degree of control exercised by the university in the creation of any copyrighted work is important to determining what rights the university and the owner may claim. The CSU/SUNY/CUNY guide says: "This continuum includes the degree to which the university provided direct and detailed specifications to the content and form of expression, the extent to which the university specified and controlled the time, place, and manner of creation…, and whether the university exercised ultimate authority over the final acceptance of, or required corrections to, the final copyrighted work."
Flexibility The principle of flexibility acknowledges the widely different roles played by the university and the faculty in various situations, and it recognizes that the rapid evolution in technology continually creates new, unforeseen, and unforeseeable circumstances that directly impact rights. Because of the rapidity of change and the resultant unpredictability, no single principle of law can clearly allocate copyright ownership interests in all cases. In some instances, the legal rules may warrant one or more of three separate conclusions concerning the ownership of copyright: namely, the university:
Early Disclosure. Early disclosure refers to the process in which an author who believes that he or she has a work that can be copyrighted and that involves "value added" by the university informs the university and so initiates the discussion of their respective rights and responsibilities. Early disclosure allows the university and the faculty member(s) to:
Use of Copyrighted and Licensed Works. In addition to those seven factors concerning ownership, the University is also affected by considerations regarding the use of copyrighted materials. The principal issues in this regard are (1) "fair use" and (2) the relationship of copyright law to contract law governing licenses.
Fair Use. The Conference on Fair Use (CONFU), 1994-96, sought to develop guidelines for (1) digital images, (2) distance learning, (3) educational multimedia, (4) electronic reserve systems, (5) interlibrary loan and document delivery, and (6) the use of computer software in the libraries. The conference reached such limited agreement that it proposed no new legislation to Congress. Despite the inability of CONFU to produce widespread agreement on new guidelines, the University must devise at least temporary policies for handling issues of "fair use" that arise in practice everyday on campus. Educating faculty, staff, and students about what "fair use" means and how to apply the four factors provided by the statute is the primary need. The University may also want to draw upon the work already done on various guidelines to draft its own guidelines for internal use in advising faculty, staff, and students in situations where use of third-party copyrighted material is involved.
The University’s Intellectual Property Office must be positioned to advise faculty on copyright, licensing, and fair use issues much more aggressively than it has in the past.
Contract Law. Attempts to revise the Uniform Commercial Code have led to intense but inconclusive debates about how copyright law relates to contract law. Again, no resolution of the conflict has resulted, although a revision of the UCC relating to electronic transactions (called the Uniform Computer Information Transactions Act) is now under review in state legislatures, with some legislatures having already passed it. Whatever the ultimate resolution of the conflict between contract and copyright law may prove to be, the University needs to take steps to forestall further harm created by some licensing agreements into which members of the University community may enter. Because of inattention to the consequences of certain kinds of copyright transfers through licensing, which result in extra expenses for the University, the University has an interest in making sure that all members of the University community are educated about these consequences so that individuals may more knowledgeably engage in negotiating the details of such transfers.
Databases, Software, and Educational Programs
The fluidity of the issues surrounding databases, software, and the administration of copyright is so great and unpredictable that these areas will require further investigation. The proposed Advisory Committee on Intellectual Property Policies and Procedures (see Chapter VI , Recommendation 5) should keep track of congressional legislation, court decisions, and other pertinent developments. The Vice President for Research will have overall responsibility for administering and coordinating all policies and procedures affecting the copyright of databases and software.
Databases. Copyright issues surrounding databases are currently in the federal legislative process. The Task Force recommends that the University take no new action on database copyright policy until the legislative process has reached completion, at which time it will be appropriate for the University to consider the development of a policy.
Software. The proposed copyright policy concerning courseware includes new instructional software applications. The Task Force believes that a policy must also be developed to guide copyright of non-instructional software applications. Some of the principles that underlie the courseware copyright policy will also be applicable to non-instructional software. However, additional study of this issue is needed.
Educational Programs. The DMCA requires that the University be registered as an Intellectual Property Office (IPO) and put in place an educational program concerning copyright for all faculty, staff, and students. See Chapter VI for the report’s recommendation concerning educational programs (see Chapter VI, Recommendation 7).
Faculty Ownership of Copyright Materials
The University should reaffirm the policy that a faculty member owns his or her works of scholarship including research monographs, journal articles, novels, plays, musical compositions, and textbooks.
3. The University makes no claim to copyright ownership when an author initiates the creation of materials used in courses at Penn State as part of regular teaching responsibilities and makes no formal request for support from the University in creating these materials.
Chapter V. Courseware, Conflict of Interest, and Class Notes
Recommendations Regarding Courseware
2. The term "courseware" refers to technology-based instructional materials, including software applications that are intended for use in credit and non-credit courses. The Task Force recommends that faculty, staff, or students who wish to sell courseware to an educational competitor of Penn State must first secure appropriate approval. Approval will require an affirmative answer to two questions: (1) Does the sale conform to the University’s policies concerning conflict of interest and conflict of commitment? (2) Is the courseware owned entirely by the faculty or staff member?
Recommendations Regarding Conflict of Interest and Conflict of Commitment
8. The Vice President for Research should direct the Advisory Committee on Intellectual Property Policies and Procedures to (1) monitor changes in the issues surrounding conflict of interest and (2) keep the university community informed.
Recommendation Regarding Class Notes
9. The Vice President for Research should direct the Advisory Committee on Intellectual Property and Procedures to examine and revise the current University policy on class notes.
Courseware policy is based on three considerations: the definition of courseware, conflict of interest and conflict of commitment, and ownership.
The creation of instructional materials employing computer-based technologies raises special challenges and problems for ownership and use of copyrighted works, which have provided the impetus for the Task Force’s attempt to devise a new policy for dealing with them. Even when the University makes no claim to ownership in such instructional materials, there are important issues to resolve involving conflict of commitment and conflict of interest. The proliferation of commercial print and Web-based services for creating and distributing class notes, as derivative from instructional materials, deserves attention for the special conflicts it can produce. This chapter makes a preliminary effort to address all of these concerns.
A. The Copyright of Technology-Based Instructional Materials (Courseware)
This policy deals with technology-based instructional materials, including software applications (collectively referred to as "courseware") that are intended for use in credit and non-credit courses. Courseware covered by this policy includes but is not limited to instructional materials formatted for distribution through audio-visual recordings, graphics materials (including slides and computer-generated materials), computer-based materials served from University computer databases or servers, CD-ROMS, printed materials, or other technologies that may be adopted by the University.
The intent of this policy is to protect courses approved by the Faculty Senate that are thereby under the supervision and control of the University.
The policy defines the intellectual property rights associated with the creation of courseware. Such definitions will protect the legal interests of the University and those of faculty, staff, and student courseware authors. University ownership applies only to the fixed presentation, not to the underlying ideas and knowledge of the author(s).
The production and distribution of knowledge in higher education, for both teaching and research, constitute a collective enterprise in which the common good is best served by mutual understanding and cooperation. The rapid changes in the technologies used by higher education require the University to establish equitable arrangements concerning the ownership of copyright in creations facilitated by these technologies, in order to protect its investment and to avoid conflicts of commitment. The best approach for reaching such accommodation of mutual interests is one in which the University administration and individual faculty authors engage in discussion at the very earliest stages of a new project involving "value added" by the University and reach agreement in writing on what responsibilities and rewards are best allocated to each party. Ultimately, who owns the copyright in a work produced in a University setting is less important than an appropriate distribution of rights and responsibilities that best serves the mutual interests of all concerned in advancing the production and dissemination of knowledge.
As stated above in the chapter on copyright, Penn State faculty members are encouraged to produce scholarly and creative works, including research monographs, journal articles, novels, plays, musical compositions, and textbooks. Traditionally, such works are considered to be the property of the author. The University agrees that this should be the case.
The University makes no claim to any copyright ownership of such works or of works cited in the preceding chapter.
The University may claim rights to instructional materials created specifically for Penn State instruction under certain circumstances. This policy applies to all members of the University community who are involved in creating courseware. There will be variations in how the policy applies, depending on the specific role of the author at the time the work is created. That role must be carefully defined at the beginning of a courseware development project. In what follows, "faculty member" is meant to include faculty, staff, and students (e.g., graduate students as teaching assistants) to the extent that they are engaged in instructional activities.
B. Courseware, Conflict of Interest, and Conflict of Commitment
Current Policy (Policy HR91Conflict of Interest):
Faculty and staff members of the University shall exercise the utmost good faith in all transactions touching upon their duties to the University and its property. In their dealings with and on behalf of the University, they shall be held in strict rule of honest and fair dealings between themselves and the University. They shall not use their positions, or knowledge gained therefrom, in such a way that a conflict of interest might arise between the interest of the University and that of the individual. Faculty and staff members shall disclose to the administrative head of the college or other unit in which they are employed, or other appropriate administrative officer, any potential conflict of interest of which they are aware before a contract or transactions is consummated.
The first responsibility for the adherence to this policy lies with the faculty or staff member(s) directly involved. If there is reason to believe that this policy is not being adhered to, the matter should be reported to the faculty or staff member’s administrative head for investigation and resolution. If the matter cannot be resolved at that level, it should be referred to the next higher administrative level for resolution.
Policy HR80 Private Consulting Practice outlines the conditions governing private consulting by individuals classified as full-time academic or academic administrator. For an outside activity to be considered legitimate private consulting, this activity must be in the faculty member’s field and be of a professional nature:
A faculty member is expected to perform his or her University duties in the most effective manner of which he or she is capable. The faculty member’s first duty and first responsibility is to the University. Outside service should not be undertaken, whether with or without pay, that might interfere with the discharge of this paramount obligation.
A member of the faculty may engage in a limited amount of private consulting within the parameters established in Policy RA12, with the understanding that this privilege pertains only if the outside activity does not interfere with the performance of regular University duties.
Faculty members are to inform their department head or campus executive officer of the type and extent of their outside activities, whether undertaken for compensation or otherwise, so that the department head or campus executive officer may judge the appropriateness of the activity in relation to the performance of the faculty member’s regular duties.
Policy RA12 Technology Transfer and Entrepreneurial Activity (Faculty
Technology transfer must be effected within the framework of an individual’s obligation to the University. Actions that serve personal interests to the detriment of the University’s interests must be avoided. Outside activities should be pursued in a manner consistent with the primary obligations of University personnel to teaching, research, and service to the public.
The potential for conflict of interest and/or commitment exists when University personnel exercise preferential access to knowledge, and/or University resources, for personal gain. The appropriate framework for faculty involvement in either commercial or not-for-profit enterprises, including "faculty companies," has to be evaluated on a case-by-case basis in concert with cognizant University administrators. Mechanisms whereby potential conflicts will be avoided must be set forth in a Memorandum-of-Understanding approved by cognizant University administrators and signed by faculty or staff involved with such outside activities.
Issues Affecting a New Policy
The university exists to create new knowledge, to preserve what is already known, and to pass on both new and established procedures to its students and to society at large. In pursuing these goals, the university advocates the pursuit of knowledge for its own sake and a commitment to the free flow of ideas as essential to its mission. For many, such principles constitute the essential function of the university and are the moral source of its institutional excellence. Those values are now being challenged by two major changes in the educational landscape: (1) the Internet as a site where on-line academic courses and other educational materials are now being offered and are readily available and (2) the proliferation of for-profit educational competitors to the traditional university. These two changes have compelled universities across the nation to reexamine their thinking about the custom of making information readily available and to reconsider ready access to their academic courses. The resulting conversations have also led faculty groups and university administrators to sense that the new environment is creating a major change in their relationship to one another. Both groups feel the need to look again at the rights and responsibilities of both the administration and the faculty and to raise anew the questions about faculty consulting, faculty roles in start-up companies, sharing of royalties for patents, who owns the scholarship produced by faculty, who owns the materials used within an on-line course, and who can sell courseware, i.e., on-line courses, and to whom. The changing environment in regard to intellectual property has also created the need to look again at two concepts that underlie the entire reevaluation: the concept of conflict of interest and the concept of conflict of commitment. Conflict of commitment is likely to occur unless individuals understand their responsibilities and obligations to the university and how certain actions can violate those bonds; conflict of interest can occur in those situations where the pursuit of individual well-being violates their contractual obligations to the university.
The Nature of the Problem
Potential conflict of interest in regard to intellectual property exists when a Penn State faculty member is considering whether or not to sell an on-line course to an educational competitor of Penn State. What professional ethics come to bear on such an occasion on the part of both the faculty member and the administrator? That question raises a number of other questions:
While the answers to these questions are not immediately clear, the Task Force recommends the following two working guidelines:
In this changing landscape, we all confront the following questions:
New situations require new answers. Across the country, universities such as Harvard, Berkeley, and Stanford are confronting the same problems as Penn State: in the age of the Internet, what constitutes conflict of commitment and what constitutes conflict of interest are topics just now being discussed and explored. These issues have not yet reached sufficient clarity and definition for the Task Force to say more than it has. Intellectual property agreement forms and the policy on conflict of interest are presented in Appendix E.
Faculty and staff, within the scope of a consulting agreement, will often be required to assign rights to intellectual property or to forego similar research activity on behalf of third parties. This may compromise the rights of the University and lead to conflicts with other research sponsors. Therefore, all consulting agreements should be reviewed and approved by the department head or administrative officer in consultation with the intellectual property staff.
The Categories of Courseware Ownership
A. Faculty-owned Courseware.
The University makes no claim to copyright ownership when an author initiates the creation of materials for use in courses at Penn State as part of his or her regular teaching responsibilities and when the author does not require any special support from the University. Special support constitutes the factor of "value added" that enables the University to make a claim of co-ownership.
The University will not become involved in registering the copyright, but it will make information available to facilitate the author’s doing so, if that is desired.
The University will claim the right to a non-exclusive, royalty-free license, in perpetuity, to use the resulting courseware in educational programs under the University’s supervision and control. As recognized already in the University’s Television Policy, the faculty member who created the work originally should have a residual right to be consulted about reuse and revision of the work by others, whether or not the faculty member is still employed by the University, so as to protect the author’s rights of integrity and attribution (which are explicitly recognized in European copyright law as the "moral rights" of the author).
The University will not otherwise interfere with the author’s use of the materials, and the author may arrange for their use outside the University, so long as this use does not represent a conflict of interest or conflict of commitment (see below).
B. Collaborative Courseware
When an author who has initiated a courseware project requests and receives support from the University, through the faculty member’s academic department, college, or an administrative unit, the work will be considered a collaborative work in recognition of the value added by the University. The University has an interest in ownership of such work and in the exercise of rights pertaining thereto, based upon relative contribution.
C. Commissioned Courseware
When the University initiates the development of courseware as part of the author’s normal duties or as a special project for which extra compensation is provided, it will be considered a commissioned work. The University has legal responsibility for the work and will oversee publication of the courseware.
The University will ensure that proper credit is given to the author and will negotiate an agreement with the author to provide appropriate reward from any income that accrues from publication of the work.
The agreement between the University and the author must be signed at the start of the project.
That agreement between the author of University-copyrighted courseware and the University will determine the right of the author to use in other Penn State courses the information contained in the courseware. The written agreement will also establish the extent to which such materials may be used in derivative works published outside the University.
Course materials subject to this policy may be (1) assigned to the author by the academic unit or (2) initiated by the individual author.
1. When an author is assigned to develop instructional materials for the University, the University will require the author to sign an agreement indicating at the beginning of the project that the work has been "specially commissioned." The legal term for this is "work made for hire." The commission is recognized in one of the following ways:
a. If the work is to be developed as part of the author’s regular workload and the resulting materials will not be distributed beyond the University, a Courseware Agreement will be completed by the author, the department head, and an appropriate University intellectual property officer to confirm the nature of the assignment, the specific materials to be developed, the University’s ownership of the resulting work, and the extent to which the author may use the courseware for derivative works beyond the University’s programs.
b. If the work has potential for distribution beyond the University and/or if the author will receive additional compensation for the work, a Commissioned Work Agreement will be completed and signed by the author, the department head, the dean of the college/unit, and an appropriate University administrative officer. This agreement should be executed at the beginning of the project or at the point when value added by the University is determined. The agreement will define the nature of the arrangement for the work, the specific details to be developed, the University’s ownership of the resulting work, and the royalty benefits that will accrue to the author.
2. When an author initiates the development of course materials as part of the author’s responsibilities and the author has requested and received support from the University, the University will define the work as a collaborative work and request that the author enter into a written Collaborative Work Agreement governing the disposition of both the author’s and the University’s rights in the work and the sharing of associated royalties.
The dean of the college/unit and the appropriate University administrative officer have the responsibility of ensuring that an appropriate statement of University copyright ownership is created for courseware that is developed under the terms of an author’s employment or as a commissioned work. The University is responsible for registration of the copyright. The University administration is responsible for ensuring that all courseware copyrighted by the University meets federal legal standards for copyright, including the use of third-party copyrighted materials that may be contained in the courseware.
The individual faculty member is responsible for listing any potential conflict of interest regarding courseware as part of the annual process of disclosure for conflict of interest (see HR91--Conflict of Interest).
C. Class Notes
The issues presented by the preparation of class notes for commercial sale or posting on the Internet by a student or other party in a manner not authorized by the instructor may be analyzed on three levels: legal, economic, and moral.
The legal status of class notes depends on how the notes are related to the lectures. Strictly speaking, as oral performances, lectures are not protected under federal copyright law. If the lectures are embodied in a "tangible" form--for example, in writing on a blackboard, a handout, an audio or video tape recording, or a web site--then a claim of copyright in that particular embodiment can be sustained. A note-taker’s version would either have to be identical in expression to that embodied form or at least a close paraphrase for an infringement to occur. If the notes are an interpretation of the lecture expressed in the note-taker’s own words, that "original" version of the lecture as reexpressed by the person taking the notes is itself protectable by copyright, but as a "derivative" work under copyright law it requires the permission of the owner of copyright in the lecture if it had taken a "tangible" form entitling it to protection. It might also be possible, legally, to interpret class notes taken by a student as a "joint work" with the instructor as co-author, but problems arise with this interpretation because the definition of that term in the law requires that the two parties involved in creating the "joint work" have the "intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."
A legal approach to dealing with the commercialization of class notes, then, is to make sure that the lecture is embodied in some "tangible" manner, i.e., written, taped, or digitized, even if only in part. That embodiment itself would create a legal ground for requiring permission of the lecturer before any distribution of a "derivative" set of notes could be undertaken. Moreover, the University is legally entitled to exclude any person not enrolled in a course from attending it to take notes.
Taking an economic approach, the University might consider setting up an internal note-taking service. This could be a way for the University to avoid problems similar to those that arose from allowing commercial copy shops off campus to offer photocopying services to instructors and students, which only belatedly the University understood the need to provide itself.
A moral approach is another alternative. The University has a good case to argue that a commercial enterprise should not profit from the activity of faculty without the University’s permission or the faculty member’s. While strictly speaking copyright infringement or plagiarism may not be involved, in a broad sense there is a "theft" of University property occurring, morally speaking. Another type of moral argument the University might make is that no student should escape the responsibility of attending class and taking his or her own notes; that is, students should not be permitted to become "free-riders" on the efforts of their fellow students. A possible moral rejoinder from students is that the instructor is allowed to "profit" from his or intellectual activity--in the form, say, of a textbook the instructor has written and has assigned for the course--so students should be able to "profit" from taking and selling their class notes. Why should a student be treated differently from an instructor, especially since the instructor is already being paid for teaching whereas the student has to pay to attend the course? However one weighs these kinds of moral argument, the University does have overriding practical reasons for wanting to exercise some control over taking and distributing class notes. Paramount among them should be making sure that the notes are an accurate representation of the content of the lecture, so that students who rely upon them are not misled. This concern, combined with the concern that an outside commercial enterprise should not profit from the lectures that the University pays instructors to give, suggests that an in-house note-taking service may be worth consideration.
Chapter VI. Implementation, Education, and Administrative Support
Recommendations for Administrative Structure
2. The Vice President for Research should work with the Provost and the Vice President for Outreach on aspects of intellectual property management pertaining to instruction and the classroom use of intellectual property.
3. The Vice President for Research also should continue to expand the development of new cooperative initiatives with state and federal government agencies and with other institutions that will enhance Penn State’s technology transfer and promote economic development throughout the Commonwealth.
4. The Vice President for Research and the Provost should work closely on intellectual property issues affecting teaching.
Recommendations for Advisory Committees
5. The Vice President for Research should appoint an Intellectual Property Policies and Procedures Advisory Committee to provide ongoing review and advice regarding the University’s intellectual property/technology transfer policies and procedures.
6. The University Faculty Senate Committee on Research should establish a standing sub-committee on intellectual property. Such a committee would bring increased emphasis and focus on intellectual property matters, thus enabling the Senate to play a more active role as liaison between the faculty and administration on all aspects of intellectual property policies and procedures.
Recommendations for Educational Program
7. The Vice President for Research should establish an educational program concerning copyright for faculty, staff, and students as mandated by the DMCA.
8. The Vice President for Research should initiate a comprehensive and ongoing educational program to educate all faculty, staff, and students about the University’s intellectual property policies, procedures, and support services.
Partnership with the University Faculty Senate
Recommendations for Funding
12. The University must develop and fund an intellectual property management and commercialization budget commensurate with, and to maintain its position as, a leading research university.
13. The University must invest the funds required to make the management of Penn State’s intellectual property consistent with the goals, principles, and recommendations of this report.
The University’s organizational structure for managing intellectual property matters is currently too decentralized and inadequate for the required tasks. The University’s intellectual property policies and procedures must provide a viable basic structure for the administration of intellectual property that is flexible enough to be responsive to unanticipated needs and opportunities in a timely manner. Therefore, the following recommendations and clarifications are made:
1. The President, the Executive Vice President and Provost, and the Vice President for Research should provide leadership for the development and administration of all aspects of the University’s intellectual property policies and procedures.
2. The Vice President for Research should have overall responsibility for administering and coordinating all aspects of the University’s intellectual property policies and procedures including patents, copyrights, trademarks (excluding Penn State logo licensing), and licenses (both the creation of intellectual property and the interpretation of legal use of intellectual property). Intellectual property processes that currently reside within other units such as the Risk Management Office and the Copyright Compliance Office should be considered for reassignment to the Vice President for Research in order to better coordinate and focus all intellectual property activities. Since copyright and trademarks require different legal expertise than patents and licensing, there should be separate offices for each.
3. The Vice President for Research should work closely with the Provost’s Office on aspects of intellectual property management pertaining to instruction and classroom use of intellectual property.
4. The Vice President for Research should provide leadership through the two existing Assistant Vice Presidents for Research:
Assistant Vice President for Research, Director of Sponsored Programs
Assistant Vice President for Research, Director of Technology Transfer
The purpose of these offices is to educate, encourage, advise, and support faculty, staff, and students during the entire intellectual property disclosure, protection, and transfer process. Included are education and training, policy compliance, disclosure submission, patent and copyright activity, marketing and commercialization strategy, and intellectual property-related business and government activities. These organizational units should also record the disclosures, oversee government compliance requirements, assist in the preparation of disclosures, assess market potential, apply for patents, consider marketing and strategy, maintain and protect patents, and register copyrights.
The commercialization of intellectual property and the negotiation of sponsored research agreements with business and industry require the combined expertise and diligence of the Intellectual Property Office, the Office of Sponsored Programs, the Research Commercialization Office, and the Penn State Research Foundation. These offices must cooperate fully in the negotiation and management of all contracts to ensure that the entire process is positive, seamless, and effective for faculty, staff, and students, as well as for business and industry sponsors.
5. The Vice President for Research should also continue to expand the development of new cooperative initiatives with state and federal government agencies, and with other institutions that will enhance Penn State’s technology transfer and promote economic development throughout the Commonwealth.
6. The Vice President for Research should also appoint an Advisory Committee on Intellectual Property Policies and Procedures. The purpose of this committee will be to give advice to the Vice President for Research on all aspects of intellectual property policies and procedures. The Committee should be broadly representative of knowledgeable faculty, staff, and students. It might also call upon alumni, business, and industry for consultation as appropriate. Representation from the University Faculty Senate should be included, and representation from this Task Force could provide continuity in the implementation of this report.
7. The University Faculty Senate Committee on Research should establish a standing subcommittee on intellectual property. Such a subcommittee would bring increased emphasis and focus on intellectual property matters, thus enabling the Senate to play a more active role as liaison between the faculty and administration on all aspects of intellectual property policies and procedures.
Educating the University Community About Intellectual Property Issues
If the University is to educate faculty, staff, and students in their rights and responsibilities under intellectual property law, it must introduce a University-wide intellectual property educational program. The Vice President for Research should institute a plan whereby each administrative unit will appoint an intellectual property representative who will be part of a network of individuals who understand intellectual property issues and who will work with the Vice President for Research to disseminate intellectual property information to their units and to participate in a comprehensive and ongoing educational program as mandated by the DMCA (1998).
The Vice President for Research should start an educational program to keep faculty, staff, and students current on all aspects of intellectual property policies, procedures, and support services. This could be accomplished partly through a web site that describes all offices, their responsibilities, and key contact people.
An annual seminar should be held for administrators, faculty, staff, and students on patent and copyright issues and opportunities. Faculty should be updated periodically, or at least annually, on changes in the patent and copyright laws and changes in policies pertaining to copyright issues (e.g., coursepacks, electronic reserves, photocopying, server-mounted publications, courseware, etc.). These seminars should feature a variety of speakers and be videotaped so that the information can be shared throughout the University community. Those attending the seminar should include unit representatives (see above) and other faculty, staff, and students designated by the deans and administrators to represent their units. The seminars should establish a network of persons who understand intellectual property issues, opportunities, and the most efficient ways to acquire and disseminate additional information. The Center for Academic Computing and the University Libraries should collaborate in developing and offering more general seminars to faculty, staff, and students on intellectual property topics most relevant to teaching and learning.
The Task Force recommends that the University adopt for all faculty, staff and students an educational program concerning copyright as mandated by the DMCA. It will involve all members of the University in active exploration and negotiation of the boundaries of fair use. By becoming knowledgeable in this area, program participants will be prepared to make informed decisions about how to avoid copyright infringement and about what may or not be considered fair use (see Chapter IV).
Partnership with the University Faculty Senate
The University administration must work closely with the faculty in developing and adopting new policies to meet these new situations. To keep the Penn State community well-informed, the University should bring each new intellectual property policy to the University Faculty Senate as an advisory/consultative report.
Throughout this report, the Task Force has noted that Penn State insufficiently funds its intellectual property offices and efforts. Currently, Penn State is not competitive in this regard with the leading research universities. In some cases, valuable initiatives receive no attention because they cannot be funded. Additional funding is also necessary to keep the University’s liability for copyright infringement as low as possible.
Since intellectual property currently receives far less investment than it requires, the University must immediately undertake a thorough financial analysis of its intellectual property situation and then adopt the appropriate budget.
The University will not be able to realize its potential in this arena and to function as a leading research university without making the investment required to enable the development, protection, and commercialization of its intellectual property.
Task Force on Intellectual Property Policies and Procedures
Harry Allcock, Evan Pugh Professor, Chemistry, Eberly College of Science Patent Agreement Committee Equity Positions and Start-Up Companies Intellectual Property Administration
Leonard Berkowitz, Penn State York, Assoc. Prof., Philosophy, Past Chair, Univ. Faculty Senate
Tamara Carneim, Graduate Student, College of Earth Mineral Sciences
Nancy Eaton, Dean, University Libraries
John Houlihan, Professor, Physics, Penn State Shenango
Thomas Jackson, Prof., Electrical Engr., College of Engineering; Chair, Senate Committee on Research
Ernest Johnson, Prof., Cell. & Mole. Phys.; Dir., Res. Affairs, Milton S. Hershey Medical Center
William Keating, Professor, Law, Dickinson School of Law
Joan Lakoski, Associate Professor, Pharmacology & Anesthesia, Milton S. Hershey Medical Center
Daniel Larson, Dean, Eberly College of Science
John Leathers, Interim Provost/Dean, Penn State Capital College; Chair
Gary Lilien, Distinguished Research Prof., Management Science, Smeal College of Business Adm.
Thomas Monahan, Director, Intellectual Property Office
Murry Nelson, Prof., Education & American Studies, College of Education; Chair, University Faculty Senate
Joanne Rutkowski, Associate Professor, Music, College of Arts & Architecture
April Sheninger, Senior Coordinator, Copyright Clearance Office
J. Rodman Steele, Patent Attorney, Quarles & Brady, Attorneys at Law
Richard Stern, Deputy Director, Initiatives & Academic Programs, Applied Research Laboratory
Barry Zoumas, Alan R. Warhime Professor, College of Agricultural Sciences
Jan Smith, Coordinator, Research Initiatives, Office of the Vice President for Research
John Houlihan, Professor, Physics, Penn State Shenango
Thomas Jackson, Professor, Electrical Engineering, College of Engineering
John Nichols, Professor, Communications, Chair, Senate Committee on Faculty Affairs
Rodman Steele, Patent Attorney, Quarles & Brady, Attorneys at Law
Richard Stern, Deputy Director, Initiatives & Academic Programs, Applied Research Laboratory; Chair
K. Robert Bertram, Attorney, Eckert, Seamans, Cherin & Mellot, LLC
Fariborz Ghadar, Schreyer Professor, Global Management, Smeal College of Business Administration
Ted Graef, Graduate Student, Smeal College of Business Administration
Scott Johnson, Graduate Student, Smeal College of Business Administration
Daniel Larson, Dean, Eberly College of Science
Daniel Leri, Director, Research Commercialization Office
Gary Lilien, Distinguished Research Prof. Management Science, Smeal College of Business Administration
Kenneth Mertz II, Investment Adviser, Emerald Advisers, Inc.
Barry Zoumas, Alan R. Warehime Professor, College of Agricultural Sciences; Chair
Shelton Alexander, Prof., Geosc., College of EMS; Chair, Senate Committee on University Planning
Harry Allcock, Evan Pugh Professor, Chemistry, Eberly College of Science
John Bagby, Professor, Business Law, Smeal College of Business Administration
Madlyn Hanes, CEO and Associate Dean, Penn State Great Valley
Ernest Johnson, Prof., Cell. & Mole. Phys.; Dir., Res. Affairs, Milton S. Hershey Medical Center; Chair
William Keating, Professor, Law, Dickinson School of Law
John Nichols, Prof. of Comm., College of Communications; Chair, Senate Committee on Faculty Affairs
Lynne Vernon-Feagans, Associate Dean for Research, College of Health & Human Development
Patent Agreement Committee
Equity Positions and Start-Up Companies
Intellectual Property Administration
Software, Copyright, and Data Rights Committee
Tamara Carneim, Graduate Student, College of Earth & Mineral Sciences
Nancy Eaton, Dean, University Libraries; Chair
John Harwood, Director, Education Technology Services, Center for Academic Computing
Gary Miller, Associate Vice President for Distance Education, Outreach and Cooperative Extension
John Moore, Assoc. Professor, English and Comparative Literature; Chair, Senate Committee on Libraries
Joanne Rutkowski, Associate Professor, Music, College of Arts & Architecture
April Sheninger, Senior Coordinator, Copyright Clearance Office
Sanford Thatcher, Director, University Press
Susan Walker, Administrative Assistant, University Libraries
For the purposes of this report the following definitions apply:
Creator - any individual who creates a work or invention.
Invention - any discovery, process, composition of matter, article of manufacture, know-how, design, model, technological development, biological materials, strain, variety, culture of any organism, or portion, modification, translation, or extension of these items, and any mark used in connection with these items.
Ownership - subject to the specific provisions of a university/sponsor ownership agreement established before any research has commenced, the university owns all inventions conceived and/or reduced to practice by university personnel. Likewise, inventions conceived and/or reduced to practice within the field or discipline in which the university provides substantial support to the inventor are also the property of the university.&nbosure Form by university personnel shall be considered to be official notification to the university of potential patentable subject matter. For government-sponsored research, within two months of official notification to the university, the government must be informed. For research subject to Bayh-Dole, the university must decide whether to retain title within two years of the official university notification date. Within one year of an election to retain title, the university must file an application for a patent. If the university elects not to retain title or abandons the invention, the title reverts to the government. If the government does not proceed with a patent application or abandons the invention, the title can revert to the inventor. For non-government sponsored research, title proceeds in accordance with the terms and conditions as negotiated before the research commenced.
Patent - an agreement between the U.S. government and the creator(s) for limited-term protection of an invention or idea in exchange for public disclosure of the invention. Patents are designated under three headings: utility, defined as a new and useful machine, manufactured item, process, or composition of matter; plant, defined as a distinct and new asexually produced plant; or design, defined as a new and non-obvious ornamental design for an article of manufacture.
Trade Secret - an invention that has value, substance, is not protected by patents or copyright, and is not known to others. State law protects a trade secret.
Work - includes any item that can be copyrighted: for example, printed materials, computer software or databases, audio and visual materials, circuit diagrams, architectural and engineering drawings, lectures in written form, musical or dramatic compositions, choreographic works, and pictorial or graphic works.
The Task Force recognized the importance of interacting with other universities to learn about "best practices" of intellectual property administration issues and opportunities. Information from other universities including Indiana, MIT, North Carolina State, Stanford University of California System, University of Florida, University of Illinois, University of Michigan, University of North Carolina, University of Texas, and University of Washington was gathered from a variety of sources:
The Task Force selected a number of universities for benchmarking via a phone survey. The information on their home pages was reviewed and followed by an in-depth telephone conference with designated faculty and staff. Most of the benchmark universities are also dealing with the same intellectual property-related issues as Penn State.
Primary Goals of the Universities’ Intellectual Property Programs. The majority of the institutions indicated that one of their primary goals was to generate revenue. Another important goal is the service provided to faculty inventors. Several institutions indicated that generating revenues, building equity, increasing sponsored research funding, and providing service to faculty inventors and society are all necessary goals of the institution.
University Intellectual Property Administration: Advantages and Disadvantages. All institutions are administered through the university, although two of the universities indicated that they also work with a related foundation and an external agent. The primary advantages to administration through the university include close proximity to the research process, influence on intellectual property policies and procedures, support of academic programs, connections to researchers, maximum responsiveness, and financial support. Disadvantages include the complications involved when taking stock (although these problems have been overcome), difficulty generating start-ups, not enough personnel, and lack of funds. Administration through more than one entity involves some signatory problems.
Central Office: Date of Establishment; Reporting Line? All benchmark universities have a central intellectual property office. The two universities that established intellectual property offices early–MIT in 1945 and Stanford in 1970–are the most successful. Other institutions created central intellectual property offices in the mid- to late-80s. All directors of intellectual property report to the Vice President, Dean, or Chancellor for Research; one reports to the Provost.
Percent of Faculty Who Utilize Intellectual Property Services. A few of the smaller institutions felt that fewer than 10 percent of faculty used the services. Universities comparable in size to Penn State or larger indicated 11-20 percent or 21-50 percent.
College-Based Intellectual Property Offices. Only one institution has independent intellectual property or technology transfer offices based in the colleges, although one institution indicated that the technology managers spend one day a week in a college.
Intellectual Property Office Services. Several institutions have agents evaluate disclosures for patentability, evaluate disclosures for marketability, market inventions to identify licensees, file U.S. and foreign patent applications, maintain and defend patent issues, provide assistance regarding trademarks, provide assistance regarding trade secrets, negotiate faculty consulting agreements, assist in financing faculty start-up companies, and maintain and defend patent issues.
Services Requested of Colleges with the Institutions. Among the services requested are to evaluate disclosures for patentability, evaluate disclosures for marketability, market inventions to identify licensees, negotiate intellectual property terms in research agreements, negotiate materials transfer agreements, negotiate confidential disclosure agreements, provide advice on conflicts of interest, provide advice on conflicts of commitment, provide liaison with industry R&D, provide assistance regarding copyrights, provide assistance regarding trademarks, provide assistance regarding trade secrets. Several intellectual property offices did NOT negotiate faculty consulting agreements, assist in management of faculty start-up companies, assist in financing faculty start-up companies, provide liaison with industry R&D, provide assistance regarding trade secrets, file U.S. and foreign patent applications, maintain and defend patent issues, provide advice regarding conflict of interest, or provide advice regarding conflict of commitments.
Primary Limitations to Maximizing University’s Intellectual Property Activities. The limitations identified include faculty culture, staff budget, access to venture capital, balancing legal, ethical, and governance issues, interest of faculty, funding, ability to do start-ups, and finding qualified personnel.
Invention Disclosures and Encouragement of Submissions. The range of invention disclosures submitted in one year was 91–380. Relative to size and research expenditures, Penn State appears to be doing well in this area at 190 disclosures per year. The encouragement of invention disclosures is through word of mouth, brochures, seminars at the college level, web sites, dean support of technology transfer activity, publication of successful deals, and talking to the faculty.
Process to Evaluate Invention Disclosures. Most institutions review disclosures via the technology licensing officers in concert with the inventors. Two institutions have organized committees structured to review the disclosures. Evaluation of the marketability of inventions is through library resources, inventors, licensing officers’ expertise, key markets, and market contacts.
Time to Evaluate Disclosure and Ownership of Invention. The larger budgeted, well-established schools complete reviews in less than 3 months, another group takes 3-5 months, and only one school admitted that it takes 6-9 months. Six of the eight institutions return ownership to the inventor if the university decides not to protect an invention. If so, they do retain an interest in the invention.
Patent Policy. All benchmark institutions require that intellectual property developed by its employees, in their area of expertise, be assigned to the university as a condition of employment.
Patent Expenses Recovered. All replied yes, except one institution, which indicated that it only recovers expenses if the agreement is written that way.
Methods of Sharing Inventions with Potential Licensees. Methods include personal contacts, marketing by licensing officers, web sites, networks, letters, newsletters, and relying on inventors.
Distribution of Royalty Revenues. Distribution of revenues with the inventors ranged from 28.3-50 percent, with a mean of 34.9 percent. One university gave the inventors 50 percent of the royalties up to $200,000 and 33.3 percent thereafter. Shares to the departments and/or colleges ranged from 10 to 30 percent. Three institutions indicated that distribution of revenues includes a share ranging from 15 to 65 percent for the licensing office.
Number of Licensing Officers and Salary Range. Licensing officer staffing compared to the number of disclosures was as follows: the range of disclosures reviewed by one licensing officer is 11-46, with an average of 28. This suggests that Penn State with 190 invention disclosures should have approximately 7 licensing officers. Penn State currently has 3.2. The salary range for these professionals is a low of $50,000-65,000 and a high of $75,000-$100,000. Penn State is within that average.
Faculty, Staff, and Students Assisting with Start-Up Companies. Again, the well-established, better financed institutions have 13-15 start-up companies per year. Penn State is in the mix of the other benchmark institutions at a range of 4-6 start-up companies.
Institutional Equity Position. All benchmark institutions take equity positions in some start-up companies.
Equity Administrative Approvals. Approvals vary from Vice President for Research, Treasurer, Foundation, to outside agent.
Faculty Inventors and Equity Positions in Companies. All the benchmark institutions allow faculty inventors to take an equity position in companies that use or market their invention.
Help with Writing Business Plans. A wide variety of answers were given ranging from little help to specific advice on writing business plans.
Bibliography of Websites
North Carolina: www.unc.edu/faculty/faccoun/reports/copyright22.pdf
Stanford: fairuse.stanford.edu (no www. prefix)
www.cetus.org (see especially the documents entitled "Fair Use of Copyrighted Works" and "Ownership of New Works at the University: Unbundling of Rights and the Pursuit of Higher Learning")
The statements of the AAUP (American Association of University Professors)
on distance education and copyright may be found at: www.aaup.org/spcintro.htm
The report of the AAU (Association of American Universities) on "Intellectual Property and New Media Technologies" may be found at: www.tulane.edu/~aau/IPNewMediaReport.html
A summary of the results of the CIC Conference on Copyright held on September 23-24, 1999, is available at: www.cic.uiuc.edu/resources/ip/copyrtconf99.html
Penn State’s Conflict of Interest Policy and the University Intellectual Property Agreement Form
PENN STATE - HUMAN RESOURCES
Policy HR91 CONFLICT OF INTEREST
POLICY'S INITIAL DATE: June 23, 1983
THIS VERSION EFFECTIVE: March 12, 1993
To avoid the possibility of any misunderstandings concerning the appropriate conduct of faculty and staff members in regard to all transactions touching upon their University duties and the property of the University.
Faculty and staff members of the University shall exercise the utmost good faith in all transactions touching upon their duties to the University and its property. In their dealings with and on behalf of the University, they shall be held to a strict rule of honest and fair dealings between themselves and the University. They shall not use their positions, or knowledge gained therefrom, in such a way that a conflict of interest might arise between the interest of the University and that of the individual.
Faculty and staff members shall disclose to the administrative head of the college or other unit in which they are employed, or other appropriate administrative officer, any potential conflict of interest of which they are aware before a contract or transaction is consummated.
University tangible assets, equipment, supplies and services may not be used by employees for personal gain, or for purposes outside the scope of their employment.
The first responsibility for adherence to this policy lies with the faculty or staff member(s) directly involved. If there is reason to believe that this policy is not being adhered to, the matter should be reported to the faculty or staff member's administrative head for investigation and resolution. If the matter cannot be resolved at that level, it should be referred to the next higher administrative level for resolution.
Other Policies in this Manual should also be referenced, especially:
RA12 - Technology Transfer and Entrepreneurial Activity (Faculty Research),
HR95 - General Standards of Professional Ethics,
HR96 - Handling Inquiries/Investigations into Questions of Ethics in Research and in Other
FN14 - Use of University Tangible Assets, Equipment, Supplies and Services.
UNIVERSITY INTELLECTUAL PROPERTY AGREEMENT- FORM A
*PURPOSE: This form is to be used (1) at time of first employment in, or transfer
to, the following classification categories: executive, administrator, academic ____________________________________
administrator, and academic throughout the University; staff exempt, staff Name (Please type or print)
nonexempt, and technical service in academic or academic service units at
University Park and the Hershey Medical Center; and (2) for any existing
employee in the above classification categories who has not signed Form A. ____________________________________
Social Security Number
INSTRUCTIONS: Type or print name/social security number, have the employee read
the agreement, then affix the signatures/dates of employee and witness as specified
below. Employing department will forward completed forms to the Intellectual Property
I understand that my employment with The Pennsylvania State University (hereafter referred to as the University) may be, at least in part, in connection with one or more research, development or other type of project, and which may include contracts or grants between non-University sponsors (hereinafter referred to as Sponsors) and the University.
(A) I agree, as a condition of my employment, to abide by the terms of the University's Intellectual Property Policies and Procedures currently in effect, as well as any subsequent revisions thereto as approved by the Board of Trustees of the University. In so agreeing, I especially note the responsibilities set forth below. I understand that a complete copy of the Intellectual Property Policies and Procedures is available in my Department Head's office.
rights of patent therein which are conceived or first actually reduced-to-practice by me;
(a) with the significant use of University facilities or resources as defined by policy (and revisions
(b) in the field of expertise and/or within the scope of responsibilities covered by my employment with the
(2) to submit invention disclosures to the University following the completion of conception or the first reduction-to-practice of any invention or discovery which;
(a) made significant use of University facilities or resources, or
(b) is in the field of expertise and/or within the scope of responsibilities covered by my employment with
(3) to do whatever is required to enable the University (or its designee), at its expense, to obtain a patent upon any invention or discovery conceived or first reduced-to-practice by me;
significant use of University facilities or resources or (c) in the field of expertise and/or within the scope of
responsibilities covered by my employment with the University;
ADDITIONAL INFORMATION CONCERNING THIS AGREEMENT IS ON THE BACK
(B) I also understand that, whenever I am associated with activities which are financially supported by contracts and grants of certain Sponsors, the invention and patent provisions of the sponsor agreements and/or applicable institutional patent and copyright agreements may create additional responsibilities with respect to:
(1) documentation of inventions and submission of invention disclosures,
(2) assignment of inventions and copyrights, and
(3) execution of papers, which responsibilities are summarized below:
(i) the completion of conception, or
(ii) the first actual reduction -to-practice, or
(iii) creation of software; and
I understand that this agreement is part of the terms of my employment; that any contract of employment or other legally binding agreement entered into by me with the University after this agreement shall be considered to include this agreement unless a provision of that contract of employment specifically modifies this agreement; and that the responsibility set forth in Section (A),(3), will continue after termination of my employment with the University.
If I am now or hereafter become a principal investigator or director of a University research, development, or other type of project, I will determine whether each person who performs any part of the research or development work on the project for which I am responsible (exclusive of clerical or manual labor personnel) has signed an appropriate Intellectual Property Agreement; and if not, will obtain such additional Intellectual Property Agreements as are necessary, and forward them to the Intellectual Property Office.
Supporting Material, Appendix F – Patent Policy and Appendix G – Copyright Law are available on the web at www.
Patent Policy Statement
The purpose of the Penn State Patent Policy is to provide the University with a flexible patent policy that pays due regard to the University’s well-being and advancement as well as that of its faculty, staff, and students, while also promoting national, state, and local interests. It is keenly recognized that Penn State’s relationship to the Commonwealth of Pennsylvania is of paramount importance, as is its relationship to the U.S. government, and that these interests must be protected and facilitated as well.
Within the university there is great diversity, not only in subject matter and practices, but also in the relationship of different segments of the university with outside interests, including government and industry. The challenges are great. Patent law is subject to various political, moral, and ethical considerations that are likely to gain increasing attention in the next decade, especially in the life sciences areas. Information technology has redefined day-to-day life and will do so increasingly. Some segments of the university that are closely associated with and dependent upon federal government sponsorship face difficult challenges to create proper incentives to proceed with technical development while at the same time preventing conflicts of interest within the organization. In addition, the question of determining the best use of the available funds is complex, e.g., whether to prosecute patents with their long-term (five years or more) payback or to supplement research and educational needs immediately. Yet patents are one of the best means of enhancing technical subject matter transfer and are often used as a basis for entrepreneurial activities. In addition, economic value derived from patents can enhance long-term support of other research efforts. Patents can provide ownership of ideas, whether commercially viable or not, and bring prestige to both the university and the inventor. Further, university agreements with sponsors in general require that inventions be reported and that they be given the option of protection. Finally, patents provide control over the use and dissemination of the university’s technical developments.
As experiences under the Bayh-Dole legislation approach their third decade, the specified allocation of license proceeds that optimally motivates, rewards, and supports the roles of the inventor, department, and the university is still in debate. Ample incentive at the individual level is important, but so are the resources provided by the university that allow ideas to become reality. Patent policies must be designed to accommodate potential ownership conflicts among faculty, post-doctorates, staff, graduate, and undergraduate students that are generated by the traditional roles played within the hierarchy of a university.
A workable patent policy requires that at any given moment a well-defined framework of key tenets exists and policy and procedures are clear and understandable. It is also important that the policy be sufficiently flexible to adapt to the diverse and unique circumstances and collaborative relationships that exist in a university environment. To avoid obsolescence, the policy must be examined periodically and, if necessary, revised.
To facilitate efficient patent management, including the critical transfer aspect, a team effort within the university is called for. The team must identify, nurture, and protect the patentable subject matter from conception to its final disposition. A well-defined policy is necessary to provide the framework in which the team must operate to function properly and to carry out its mission. This framework must both stimulate and facilitate the process whereby inventive subject matter may be put to public use and/or commercial applications. The protection of the subject matter by means of patents is an essential part of the process.
The following forms are presented here as examples of forms that will be necessary for the implementation of this patent policy:
Agreement for Royalty Distribution - used to provide an inventor with an understanding of, and to request agreement with, the distribution of royalties including, but not limited to, those royalties that may be distributed to a sponsor. This form must be completed prior to university personnel beginning work on sponsored research.
Conflict of Interest Avoidance Statement - used to prevent a potential conflict of interest among university personnel who may have a continuing relationship with a non-Penn State company.
Determination of Significant Use of University Facilities Form - used to determine whether significant use of university facilities has been used by the inventor to warrant Penn State ownership of the invention. This form is used only if there is a debatable question concerning ownership.
Inventor’s and Inventor’s Department and College Acceptance of Terms of Option/License Agreements - used to indicate the inventor’s and inventor’s department and college’s acceptance of the option/license agreements negotiated by the university.
Non-disclosure Agreement Form - used to control disclosure of university proprietary information among individuals at Penn State and industrial and other sponsors.
Patent Disclosure and Confidentiality Form - an individual discloses subject matter that has potential for a patent to the university. It also includes statements assigning the right, title, and interest to the patentable subject matter to the university. It includes an agreement that the university may receive independent research funds in lieu of royalties from a licensee. It also includes an agreement to abide by university policies to maintain confidence concerning the subject matter disclosed.
Patent and Proprietary Information Agreement Form - an individual acknowledges that he or she has received a copy of the policy and procedures and agrees to abide by the current terms of Penn State’s patent policies and procedures.
An Additional Viewpoint on Patents
THE NEED FOR A GLOBAL SOLUTION
by Rodman Steele
Patent Background. Over the past year, the Steering Committee has carefully studied patent policy at the University, including significant benchmarking activities. It seems clear that University ownership of patents with the inventors receiving royalties from commercialization is generally supported by all. While one may quibble with respect to implementation, i.e., size of percentage of royalty stream, time for acceptance by University, etc., the overall approach seems very well accepted.
The Universities are benefitting financially and with increased prestige and respect from private industry, and productive faculty members are being rewarded. Strong arguments can be made that faculty have a significantly greater prospect of achieving wealth than their corporate counterparts, who largely are paid by salary with limited incentives and bonus plans for achieving significant reward, even in the case of blockbuster patents. This is in line with the historical inventor/corporate relationship in the United States, i.e., Wallace Carruthers, inventor of nylon; Dr. Steven DelNagare, co-inventor of gas chromatography, etc., to name a few examples of totally unrewarded corporate inventors.
Historically, notwithstanding the many attributes of American industry, the situation in the United States has been quite different at the individual inventor level than the comparable situation in most other industrial countries where inventors have a right to company profits by law, i.e., Germany and Japan being the leading examples. Thus, in context, the faculty inventor at major U.S. Universities has been able to politically achieve much greater fairness than his corporate counterparts in the U.S. Somewhat of an anomaly exists, in that inventors in many foreign Universities do not have the opportunity to be as successful as their corporate counterparts in those countries, whereas the reverse is true in the United States.
The purpose of the above dialog is simply to emphasize strong support for the present patent policy of U.S. Universities, with Penn States’s policy being similar to most other large Universities in the U.S.
Dramatic Change in U.S. Patent Law. In the year 1908, a U.S. Court decision became widely interpreted as disallowing patent protection for business methods. This caurts until 1995, when the State Street Bank case made it clear that the 1908 decision should not have been interpreted so broadly as to disallow protection for business methods generally. The State Street case has opened the flood gates and builds on earlier pro-patent software decisions in supporting business approaches. The development is best understood in the context of the Internet, an area in which 648 Internet-related patents issued in 1997, contrasted to 1390 in the first half of 1999 alone. The backlog of patent applications is growing so fast that the Patent Office has hired 500 new examiners in the software and Internet section alone.
In the last few months, patents have issued related to divorce settlements, physical training methods, investment schemes, travel promotion, advertising plans, and business profiles, to randomly name areas affected by the abolishment of the business method patent exception.
Up to now, the patenting process has been primarily of interest to the technical areas of the University. Now, however, humanities, business, home economics, music, and sports, etc. are all theoretically affected by this huge change in the law. Hopefully, faculty members will come to appreciate the opportunity which non-technical individuals now have commensurate with their technical counterparts.
This new direction of the law extends the patent-copyright interface immeasurably, and opens up the following new prospect for University faculty. Up until now, if Professor XZY in the business department develops a new business approach, the best he could have hoped for was royalties, perhaps meager, from copyright dollars obtained by selling his work to a publisher. Now, Professor XYZ has the ability to patent his new business approach through the University and potentially dominate business activity. Pursuing exclusively a copyright approach to the detriment of the patent prospects could be equivalent to giving away his invention, emphasizing the need for proper legal guidance for the professor’s protection.
Copyright Issues. During our last Steering Committee meeting, most of the discussion was directed to the courseware issues brought about by the development of on-line, distance learning facilities. One aspect of this issue which was not discussed were the dollars and cents, particularly from the prospect of the faculty members, who are being given an opportunity to market their works in fast-growing new venues.
Looking at the background of textbook publishing practices, my suspicion from representing numerous individual authors, as well as at least two publishing houses, is that professors rarely enjoy lucrative opportunities from publishing. Rather, the experience is more prestigious than of dollar and cents value. My premise, which may be challengeable, is that the courseware publishing opportunities will be similar from the dollars and cents standpoint.
It seems to me that the challenge to the University can be reoriented into a huge opportunity. If the University chooses to become a business partner with faculty (just as in the case of patents) through the marketing power of the University, increasingly greater opportunities should be available to the individual faculty members.
Intellectual Property Law Generally. One need not look very far for positive precedent within the broader concepts of intellectual property. Only a few short decades ago, massive amounts of technology were escaping University research labs without benefit to either University or individual professors. Granted, federal legislation, i.e., the Bayh Dole Act, brought out the full potential of technical development within the University; however, University business practices have also contributed immeasurably to the development of significant University and regional technical development.
One next can turn to the trademarking aspect of intellectual property and quickly appreciate how astute business practices have added to the University coffers through name and logo promotion and protection. This potential was probably not seriously contemplated from the historical prospective until third parties began capitalizing on University name recognition and appeal.
If one views today’s challenge from the theoretical viewpoint, a point could be made that the University is doing a better job of protecting offshoots of its existence than the core materials that are the touchstone of its educational mission. In other words, the technical development that come from the environment are protected by patents; and the marketing and name recognition aspects of the University are protected by trademarks; yet the central educational materials that are developed by faculty are not protected for the University’s benefit, and only minimally protected from the individual faculty standpoint (this latter premise is based upon a professor’s achieving only nominal stipends or royalty streams from copyright revenues).
A Solution. In trying to probe within the existing parameters of the copyright situation with at least two huge diverse areas, i.e., courseware and non-courseware, it seems almost unavoidable that some type of ad hoc approach will be necessitated to handle the many permutations unless there is a radical overhaul in fundamental direction. Such an ad hoc approach implies the allocation of resources indefinitely on reviews that are very unlikely to be cost effective and which will undermine the University sense of community.
The expanding patent jurisdiction suggests a potential solution. The term collective enterprise was used at our last Steering Committee meeting and can be applied to the patent program, which needs to be extended throughout the University to cover all intellectual property, including the new areas such as business.
As noted above, it is fundamentally inconsistent to have the University owning patents and trademarks and not copyrights when one looks at the University mission. (Already in the software area, copyright ownership by an entity separate from patent ownership can destroy lucrative rights.) As patent rights become obtainable where never before, a case can be made for broader application of IP to the benefit of the faculty. Complete the scenario by having the University take title to copyrights and license on behalf of faculty wherever feasible but not to the detriment of the University unless there is some reasonable setoff.
Feasibility. The outward flow of writing from faculty need not be curtailed, but simply redirected with the University licensing rights with royalty stream, perhaps in most cases being similar as before. Collective marketing power in the hands of the University might go far to advance the interests of the entire academic community. An in-depth study of the economics of copyright licensing could be undertaken to compare how faculty would be treated before and after, with the University being prepared to make up any short-term downside in exchange for more control, which could be connected to other financial gain in a myriad of ways.
John Bagby on Patentability of Methods of Doing Business
Intellectual Property Rights in Cyberspace:
A Series of Essays on Cyberlaw and IP
Contents: (revised: 1/7/00)
A. Patentability of Methods of Doing Business
A. Patentability of Methods of Doing Business (MoDB)
The patent law generally permits four, somewhat overlapping yet broad category/types of patentable inventions: (1) machines, (2) [articles of] manufacture, (3) compositions of matter and (4) processes. Traditionally, business methods have not been patentable, that is, methods of doing business (MoDB) are not "statutory subject matter" under §101 of the U.S. patent law. Therefore, MoDB were not permitted to be the direct subject of a potentially lucrative patent monopoly. Indeed, since the 1908 case of Hotel Security Checking v. Lorraine several lower federal courts have assumed the existence of a so-called business methods exception, a judge-made precedent that effectively denies MoDB patentability under the patentable process category.
The effect of the business method exception has been that the proliferation of 20th century business management innovations were not effectively protectable as intellectual property (IP). Well-known and valuable business operations techniques such as double-entry bookkeeping, just-in-time inventory controls, economic order quantity (EOQ) processes, discounted cash flow techniques (present value), ratio-analyses, and options pricing, just to cite a few, cannot be patented. Generally, these MoDB are now in the public domain and available for use by anyone.
The foregoing does not mean that no one has ever held exclusive rights to IP of great business value. First, patentability is well-recognized for manufacturing processes (e.g., biotech), articles of manufacture (e.g., particular products) and compositions of matter (e.g., chemicals, drugs). Second, MoDB with economic value that are kept confidential may be exploited as trade secrets under state law. Third, software has been patentable since the 1994 watershed case, In re Alappat. Software can be considered as both a product and a process control device; both are clearly financially advantageous to businesses. Fourth, copyright and trademark law offer very significant monopolies for software, expression, entertainment, characters and commercial symbols of great value in business.
Despite the foregoing IP opportunities for the intellectual assets of business, the non-patentability of MoDB has excluded many financial services techniques, operational optimization systems, strategic plans and contracting methods from the considerable benefits of patentability. This latter disadvantage appears to have nearly evaporated following the 1998 case State Street Bank vs. Signature Financial Group. The U.S. Supreme Court has declined to review an appeal from the Federal Circuit's opinion in the State Street case. The Federal Circuit Court of Appeals is generally recognized by the IP community as the premier federal court with IP expertise. As a result, MoDB patentability now seems assured unless Congress would overturn State Street by statutory modification to the U.S. patent law.
State Street Bank vs. Signature Financial Group (Fed.Cir. 1998)
In State Street, the Federal Circuit approved a financial services method as patentable that was imbedded in software. Signature Financial had acquired the software to manage a hub and spoke clustering of separate mutual fund participants. Several small investment companies, the spokes, pooled their customers' assets into a single portfolio, the hub. The portfolio was organized as a partnership to take advantage of the partnership flow-through income tax treatment and thereby avoid the corporate double-taxation of dividends. The MoDB in this No. '056 patent facilitated daily settlement of the portfolio's gains and losses. These calculations were then used to make daily computation of each spoke's asset values, income, expense, (un)realized gains/losses, and thereby allocate shares of these items to each spoke firm. The software computed annual quantities of aggregate income, expense, and capital gain/loss. Ultimately this information facilitated the quick and accurate allocation of these financial changes to each individual investor's account. When negotiations with Signature Financial failed to grant State Street Bank a license to use the hub and spoke system, State Street Bank brought suit to declare the '056 patent invalid, alleging that MoDB's are not patentable subject matter.
After winning the initial trial in the Massachusetts Federal District Court, State Street Bank lost on an appeal to the Federal Circuit, which upheld the patentability of MoDB. The Federal Circuit panel of judges observed that nothing limits the patent law's grant of patentability for "any new and useful process, machine, manufacture, or composition of matter." It also avoided the historical obstacle to software patentability in holding that MoDB patents do not automatically withdraw ideas, laws of nature or algorithms from the public domain so long as the MoDB produces "useful, concrete and tangible result(s)." This argument had been the major basis for preventing software patentability before In re Alappat. The Patent and Trademark Office (PTO) was correct in 1996 in removing the ill-conceived business methods exception from the influential PTO patentability guidelines found in §706.03(a).
Some observers estimate that patents have already issued on thousands of software programs, many of which have MoDB imbedded in them. There are probably hundreds of MoDB patent applications pending "in the PTO pipeline." To complicate matters, there are indications that the PTO examiners do not yet fully comprehend the prior art (public domain technologies) underlying MoDB. PTO guidelines appear to insist that MoDB must be imbedded in software, despite State Street's apparent rejection of that requirement. Some observers are concerned that the PTO examiners responsible to screen patent applications for satisfaction with the novelty and non-obviousness requirements are largely trained in computer science and electrical engineering. Few PTO examiners are yet formally trained or possess direct expertise in the underlying business disciplines needed for rigorous examination. Such fields arguably include, inter alia financial economics, accounting systems, management science, banking, information systems, electronic/Internet commerce, and marketing. The patent attorneys and agents who prosecute patent applications for inventors presumably have credential limitations similar to PTO examiners. The PTO has traditionally required technical credentials for patent attorneys from engineering or the natural sciences. However, business system expertise is clearly required for competent MoDB patent processing.
The suspect initial quality of MoDB patent claim drafting and patent examinations suggests many early MoDB patents are probably invalid. The large initial number of MoDB patent applications and patent issuances probably have received less rigorous scrutiny than do other technologies. Such a learning curve for patent prosecutors and PTO examiners is not unprecedented, there were similar trajectories with biotech and software patents. Following that pattern, where MoDB patents are likely invalid or should be much more narrowly interpreted than as granted, those patents actually litigated will eventually be invalidated in whole or in part. More disturbing, this problem is exacerbated by the practice of early settlement or cross-licensing in infringement and invalidity proceedings. Many suspect MoDB patents will not be exposed to the meticulous scrutiny of litigation.
Competitive Policy Implications
Competent patent opinion advice will be necessary to protect businesses that initiate new MoDB from becoming the target of infringement litigation. Many savvy businesses that develop new MoDB will vigorously seek patent protection. However, the guidance essential to such patent opinions must be derived from comprehensive studies of MoDB patents. These studies are complicated by insufficiencies in the PTO patent classification system that only recently recognized a few new sub-classes of MoDB. Most PTO classes require the MoDB to be expressed as imbedded in software. Nevertheless, MoDB in general can be expected to migrate from the public domain or protection under trade secret status into MoDB patent protection. Trade secrets are usually less valuable than patents because they are vulnerable to reverse engineering, employee misappropriation, and the weaknesses of employment contract terms requiring confidentiality or which limit competition after termination. Removing MoDB from the public domain arguably reduces competitiveness throughout whole industries and even from the entire economy.
Some observers argue that even without patent protection for MoDB, there have been considerable incentives to innovate in business. Innovation has been widespread throughout the 20th century. The patentability of MoDB may have significant repercussions for entrepreneurship and small business, particularly in the near to medium term. Large entities with significant IP litigation budgets will be emboldened to intimidate small businesses from using MoDB to compete and this will enhance the opportunity to extract MoDB royalties.
Ó 1999 by John W. Bagby
The basic framework for copyright law in the United States was updated most recently by the Copyright Act of 1976, which went into effect on January 1, 1978. The University Copyright Handbook, issued in 1982 after approval by the Board of Trustees of the Copyright Policy on September 10, reflects the changes to copyright law brought about by the 1976 Act, but the Copyright Policy itself focuses on defining ownership and the Handbook otherwise provides only a brief overview of the main features of the 1976 Act. Because of the need to have a working policy to guide its activities in preparing coursepacks for classroom use, in the wake of two major court decisions in the early 1990s, the Copyright Clearance Office of the Office of Business Services drafted an interim University Policy Governing Copyright Clearance, which was circulated to deans and department heads on November 3, 1997. Besides this necessary but limited extension of policy, there has been no sustained effort to accommodate the university’s policy to changes in the law since 1982 as they have occurred both in the courts and in the Congress.
These changes have not, of course, fundamentally altered the framework established in 1976, but legislative amendments to the Copyright Act have extended it in various ways, in both the scope of works protected and the nature of the protection provided, especially in response to the fast pace of advances in technology, and the courts have meanwhile helped refine our interpretation of what the law means in application to specific cases. All of these changes must be taken into account in any thorough revision of the university’s own copyright policy, and they must also constitute the foundation for any meaningful program for educating faculty, staff, and students about their rights and responsibilities under copyright law. This section attempts to highlight some of the more important of these changes, in chronological order for legislative amendments and by subject for judicial decisions, without pretending to be in any way exhaustive.
1984: (a) The Record Rental Amendment (effective October 4, 1984) provides an exception to the "first sale" doctrine of Sec. 109 by prohibiting the owner of a phonorecord from disposing of it by "rental, lease, or lending" without the authority of the copyright owners of the sound recording and musical work embodied in it. There is an exception, however, if the rental, lease, or lending is done "for nonprofit purposes by a nonprofit library or nonprofit educational institution." (b) The Semiconductor Chip Protection Act (effective November 8, 1984) provides a ten-year exclusive right to the owner of a "mask work" to reproduce it, import or distribute a semiconductor chip product in which the mask work is embodied, and license this right to others, so long as registration is made within two years of its commercial exploitation anywhere in the world.
1988: The Berne Convention Implementation Act (effective March 1, 1989) makes the United States an adherent to the preeminent international copyright treaty, thus ensuring reciprocal "national treatment" with a large number of foreign countries (127 as of June 1998). Among the changes made in U.S. law are the elimination of the requirements for a copyright notice as a condition of copyright protection and recordation of transfer agreements as a prerequisite for filing suit. Also, foreign copyright owners need no longer register their copyrights in the U.S. before filing suit here (although U.S. copyright owners still do). The amount of statutory damages are doubled to a range of between $500 and $20,000 for each infringement, with a maximum of $100,000 for "willful" infringement and a minimum of $200 for "innocent" infringement.
1990: (a) The Architectural Works Copyright Protection Act adds "architectural works" to the categories of works of authorship set forth in Sec. 102(a) and thus provides protection for any works of this type created on or after December 1, 1990. (b) The Computer Software Rental Amendments Act (effective December 1, 1990) extends the prohibition against "rental, lease, or lending" of phonorecords (see above) to computer programs, again with the same exemption for nonprofit uses—though a library lending a computer program must affix to it a "warning of copyright" notice. (c) The Copyright Remedy Clarification Act (effective November 15, 1990), as a response to a series of court challenges to the enforcement of federal copyright law against states claiming immunity under the Eleventh Amendment, declares that "Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 119, for importing copies of phonorecords in violation of section 602, or for any other violation under this title." (d) The Visual Artists Rights Act, importing for the first time into U.S. copyright law the notion of "moral right" common to European law, provides protection of the rights of "attribution" and "integrity" for any work of visual art (defined as a unique painting, drawing, print, or sculpture or any sequentially numbered "limited edition" set of copies thereof up to 200 if they are all signed by the creator). These rights are inalienable, but waivable; they remain with the creator even if the copyright in the work is transferred to another party. The Act protects any such works of fine art created on or after June 1, 1991, and this special kind of protection lasts only for the life of the creator.
1992: (a) The Copyright Renewal Act (effective June 26, 1992) provides for automatic renewal of all copyrights for works published between the beginning of 1964 and the end of 1977, while offering some limited benefits for those who choose to register for the renewal term. (b) The Unpublished Works Fair Use Amendment (effective October 24, 1992), in response to a series of court decisions that raised questions about whether "fair use" applies to unpublished works at all, adds to the end of Sec. 107: "The 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." (c) The Home Audio Recording Act (effective October 28, 1992) prohibits the importation, manufacture, or distribution of any digital audio recording device that does not contain a system to prevent "unauthorized serial copying" and further prohibits use of any device to circumvent such a system.
1994: The Uruguay Round Agreements Act (signed into law on December 8, 1994, implementing the General Agreement on Tariffs and Trade) amends U.S. law in various ways, most importantly by automatically, on January 1, 1996, restoring full copyright protection for all works first published in foreign countries that are members of the Berne Union or the World Trade Organization (but only those works still protected under copyright in their country of origin) that had fallen into the public domain here by reason of failure to comply with certain formalities required under U.S. law (such as lack of a copyright notice, non-renewal, non-compliance with the manufacturing clause, etc.). Provisions are included to protect U.S. businesses or individuals ("reliance parties") that had relied on the public-domain status of these works to use them in various ways, either reproducing them or preparing derivative works, giving them a one-year "grace period" to sell off existing stock or else enter into an agreement with the foreign copyright owner if that owner chooses to enforce the copyright by sending proper notification to the user or to the Copyright Office.
1995: The Digital Performance Right in Sound Recordings Act (effective February 1, 1996) adds to the exclusive rights defined in Sec. 106 the right, "in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission," with limitations thereon set forth in an amended Sec. 114.
1997: The No Electronic Theft Act (effective December 16, 1997) closes a loophole in the Copyright Act revealed by a court case in which an MIT student named LaMacchia had avoided prosecution for copyright infringement when he operated an on-line bulletin board that solicited the uploading and downloading of copyrighted software. The law had previously required that an offender gain personal financial benefit to be subject to prosecution, and LaMacchia had simply done this for reasons having nothing to do with economic reward for himself. By modifying the definition of "financial gain" and "willfulness" and setting monetary standards for economic harm, the amended law makes it possible to stop activities like that in which LaMacchia had engaged.
1998: (a) The Sonny Bono Copyright Term Extension Act (effective October 26, 1998) adds twenty years to the duration of all existing copyrights. Thus, all copyrights in works published between 1923 and the end of 1963 that were properly renewed enjoy a term of 95 years from first publication; and so do copyrights in works published between 1964 and the end of 1977, receiving the benefit of automatic renewal under the 1992 amendment (see above). For works published after January 1, 1978, the term now extends to 70 years after the author’s death; for pseudonymous, anonymous, or works made for hire, the term lasts for 95 years from first publication or 120 years from creation, whichever expires first. And for works not yet published, protection extends to 70 years after the author’s death but in no event can expire before the end of 2002 or—if published by that time—before the end of 2047. (b) The Digital Millennium Copyright Act (effective October 28, 1998) implements the WIPO treaties negotiated in December 1996 and defines the conditions for limitation on the liability of on-line service providers. A summary of the Act’s main provisions as they affect universities is appended to this report.
1999: The only significant new law regarding copyright to pass in 1999 was the Digital Theft Deterrence and Copyright Damages Improvement Act, signed by President Clinton on December 9. It increased the statutory damages for copyright infringement by 50 percent and encouraged the prosecution of online piracy cases by requiring the U.S. Sentencing Commission to issue special amendments to its guidelines implementing the No Electronic Theft Act of 1997 (see above). In addition, there was activity associated with the DMCA that could lead eventually to legislation regarding (a) databases and (b) distance education. (a) A bill to provide special protection for databases that was originally part of the DMCA but was severed from it in the waning days of negotiation was reintroduced (with some modifications to expand "fair use" and to avoid perpetual protection through continued updating of a database) on January 19 as H.R. 354 (The Collections of Information Antipiracy Act). On May 19 an alternative bill, H.R. 1858 (The Consumer and Investor Access to Information Act), was introduced (with support from a number of universities including Penn State). It provides for blanket exemption from liability for all "scientific, educational, or research uses" so long as those uses do not form a "consistent pattern engaged in for the purpose of direct commercial competition." (b) As mandated by the DMCA, the Register of Copyrights on May 25 presented to the Congress the Copyright Office's Report on Copyright and Digital Distance Education (170 pages, not counting front matter and appendices of about equal length). The recommendations of the Report correspond closely, in their modesty and conservatism, to those put forward in testimony by the AAU, ACE, and ASULGC. As summarized (on p. 7), "we recommend updating section 110(2), the exemption for instructional broadcasting, to allow the same types of performances and displays it currently permits to be delivered by means of digital technologies, and received by students in remote locations, whether or not in a physical classroom. In addition, we suggest that the exemption be broadened to permit certain limited performances of categories of copyrighted works not covered by its current language. At the same time, in order to maintain an appropriate balance between the rights f copyright owners and the needs of the educational community, we recommend that the expansion of the exemption be accompanied by the incorporation of a number of safeguards to control the risks of unauthorized dissemination and ensure the continued effectiveness of the existing restrictions in the statute. In order to permit the section 110(2) exemption to be utilized in connection with asynchronous distance education, we recommend the addition of a new subsection to the ephemeral recordings exemption in section 112. As a critical component of this package of amendments, we recommend clarifying various aspects of the fair use doctrine in legislative history. Finally, we suggest a number of areas for further discussion or review." It seems likely that, pursuant to this report's recommendations, some bill will emerge sooner or later on Congress's agenda.
Databases: Feist Publications Inc. v. Rural Telephone Service Co., 111 S.Ct. 1282 (1991), which decided a dispute over the copying of a white pages telephone directory, repudiated once and for all the idea that "sweat of the brow" could itself ground a claim to copyright and thereby did away with one essential prop for pursuing protection of databases under copyright law. (In the process it also swept away one principal recourse for protecting the reconstructed texts in "critical editions" of authors whose works would otherwise now be in the public domain—which is a concern to the university presses that publish many of these editions, including Penn State Press as North American publisher of the Edinburgh Edition of Thomas Reid.) The database bills now under consideration in the Congress (see above) are an effort to restore some degree of the protection taken away by Feist (but neither addresses protection for critical editions).
Electronic Rights: The Second Circuit Court of Appeals, on September 24, 1999, reversed a lower-court decision in the case of Tasini et al. v. The New York Times et al., ruling that the privilege granted to publishers of "collective works" (like newspapers, magazines, and journals) under Sec. 201(c)—which, "in the absence of an express transfer of the copyright or of any of the rights under it" of an individually contributed article, allows them to reproduce and distribute the contribution only "as part of that particular collective work, any revision of that collective work, and any later collective work in the same series"—does not extend to licensing inclusion of any such contribution in an electronic database, like NEXIS. The Court rejected the publishers’ argument that such a database may be construed as a "revision" of the collective work under Sec. 201(c), with the result that authors must sign written agreements with publishers if their articles are to be legitimately licensed for sale as part of such a database. Jonathan Tasini, it is worth noting, is the current president of the National Writers Union. The defendants have filed an appeal.
Eleventh Amendment: In a complicated series of interrelated court decisions, the issue of the relationship between the Eleventh Amendment and the Copyright Act, which the Congress had attempted to resolve through the Copyright Remedy Clarification Act (CRCA) in 1990 (see above), has resurfaced again in the wake of the Supreme Court’s ruling in Seminole Tribe v. Florida, 517 U.S. 44 (1996). A scheduled rehearing of a case in the Fifth Circuit, Chavez v. Arte Publico Press [which is an agency of the University of Texas], 157 F.3d 282 (1998), had held forth hope of settling this matter in that circuit, but it was postponed when the Supreme Court agreed to hear Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and the United States of America. On June 23, in deciding this case and two others involving the Eleventh Amendment by 5-4 margins, the Supreme Court—in the words of the New York Times’ front-page story—"made states immune from suits by state employees for violations of Federal labor law; by patent owners for infringement of their patents by state universities and their agencies; and by people bringing unfair-competition suits against states’ activities in the marketplace." An even more recent decision, by the identical 5-4 majority on January 11, 2000, in Kimel v. Florida Board of Regents (striking down the Age in Discrimination Employment Act) has added to the support the Supreme Court is showing for states’ immunity under the Eleventh Amendment. And on February 18 the Fifth Circuit Court of Appeals, rehearing the appeal in Chavez, cited these Supreme Court decisions in rejecting arguments made under section 5 of the Fourteenth Amendment (state infringement depriving copyright holders of property without due process of law) and finding in favor of the University of Houston’s immunity from suit in federal court. It would appear, then, that owners of intellectual property will henceforth be unable to bring suit for infringement of their rights against states or state agencies under federal law in either federal or state courts, unless states explicitly waive their immunity. Senator Leahy introduced a bill (S. 1835) on October 29, 1999, that would condition states’ ability to protect their own copyrights (e.g., those covering copyrighted materials published by state university presses) on their waiving of immunity to suit by other parties. How Penn State stands to benefit, or be harmed, by this new legal environment is itself a complex question given the university’s peculiar status as a "state-related" institution.
Photocopying: In two cases directly involving the copying of copyrighted works for coursepacks—Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) and Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1996)—courts held that such copying as done by commercial copy shops is not "fair use." There has as yet been no case on coursepack photocopying decided by the Supreme Court (which denied cert. in the MDS case in 1997), but in another case—Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. (1994) involving parody—the Supreme Court did clarify that "the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement." And there have been a number of cases, such as Encyclopedia Brittanica Education Corp. v. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982) and Marcus v. Rowley, 695 F.2d 1171 (2d Cir. 1983), where courts have denied fair use as a defense where copying has been done within educational institutions. The interim University Policy Governing Copyright Clearance was devised in response to some of these court rulings.
Shrinkwrap licenses: The debate over the legal status of such licenses, which do not lend themselves to negotiation between buyer and seller in the normal fashion and have therefore been questioned as to their forcing waiver of rights under copyright law, has been partly settled by a Court of Appeals decision in ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), which held that shrinkwrap licenses are perfectly valid contracts so long as users have the option of returning the product for a refund if they do not agree to the terms of the license. The relationship between contract and copyright law has also been a focal point of the discussions ongoing in the revision of the Uniform Commercial Code’s Article 2B.
Software: Apple Computer, Inc. v. Franklin Computer Corp., 714 F. 2d 1240 (3rd Cir. 1983), decided that copyright protection extended to operating systems consisting of object code embedded in read-only memory chips (ROMs). Whelan v. Jastrow, 797 F. 2d 1222 (3rd Cir. 1986), extended protection for computer code beyond the literal expression to its structure, sequence, and organization, but other courts following the "filtration" approach taken in Computer Associates International v. Altai, 982 F. 2d 693 (2nd Cir. 1992), separate the code’s ideas and other public-domain elements from its expression and extend protection only to the expression. Apple Computer, Inc. v. Microsoft Corp., 717 F. Supp. 1428 (N.D. Ca. 1992), 779 F. Supp. 133 (N.D. Ca. 1992), denied copyright protection to individual elements of graphical user interfaces.
Work made for hire: In Community for Creative Non-Violence v. Reid, 490 U.S. 730. 109 S.Ct. 2166 (1989), the Supreme Court used the ten factors of the general common law of agency to reach its decision and affirmed that the key to defining who is an employee and deciding whether a work is a "work made for hire" is not the right to control and the actual control of the product but rather the right to control the manner and means of production. In its treatment of this issue the authoritative treatise Nimmer on Copyright says (Ch. 5, pp. 32-34): "Therefore, the literary efforts of an employee, if not rendered within the scope of his or her employment, remain the property of the employee. This is true, even if the subject matter of the work thus created by the employee bears upon or arises out of the employee’s activities for his employer, as long as the work was not produced pursuant to his duties as an employee. Thus, if a professor elects to reduce his lectures to writing, the professor, and not the institution employing him, owns the copyright in the lectures. Moreover, if a work would not otherwise be regarded as falling within the employment relationship, the fact that a portion of the work was done during working hours, and that the assistance of the employer’s facilities and personnel was obtained in some degree in preparing the work, will not necessarily render the work the property of the employer. Conversely, a work within the scope of an employee’s duties, but prepared at home during non-working hours, is not ipso facto outside the work for hire ambit." In a long footnote commenting on some cases in California in the late 1960s that held copyright in lectures to belong to the professor, not the university as employer, Nimmer goes on to note, however, that "whether the foregoing cases reflect the rule under the current law is unclear" and cites a 1988 court decision in the Seventh Circuit commenting that "it is widely believed that the 1976 Act abolished the teacher exemption." Nevertheless, Nimmer concludes this footnote thus: "Given that universities typically do not dictate the manner and means for a professor to reduce his lectures to writing …, perhaps such works still fall outside the work-for-hire doctrine, even under the 1976 Act."
Summary of the Provisions of the Digital Millennium Copyright Act (1998)
Most Applicable to Non-profit Educational Institutions
Title I: WIPO Treaties Implementation
Sec. 103: Copyright Protection Systems (CPS) and Copyright Management Information CMI)
#1201 prohibits circumvention of CPS for (a) gaining access and (b) exercising any Sec. 106 rights of a copyright owner, but mandates a two-year delay in applying the ibition until the Librarian of Congress can report on any class of works for which non-infringing uses have been "adversely affected" by this prohibition, and further mandates exclusion of any classes of works so identified for any succeeding 3-year period, after which another report will be made by the LC, and so on. Special exemptions are provided for several purposes, including (d) temporary access by a non-profit library, archive, or educational institution for the purpose of making a decision about purchase, (f) reverse engineering to ensure interoperability between computer programs, (g) legitimate encryption research, (h) prevention of collection of personal data to protect privacy, and (i) testing the security of a computer, computer system, or computer network.
#1202 provides for protection of CMI by prohibiting (a) use or distribution of false CMI and (b) removal or alteration of CMI [CMI is defined in (c) as including title and author of work, name of copyright owner, and terms and conditions of use, etc.]
#1203 specifies civil remedies for violation of provisions of #1201 and #1202 including injunctions, recovery of costs, attorney’s fees, destruction of equipment, and actual or statutory damages (the latter being between $200 and $2,500 for #1201 violations and between $2,500 and $25,000 for #1202 violations, with treble damages allowed for repeat violations by the same offender). #1203 allows for reduction or remission of damages for "innocent" violations and mandates remission where a non-profit library, archive, or educational institution can prove to the court’s satisfaction that it "was not aware and had no reason to believe that its acts constituted a violation."
#1204 specifies criminal penalties for anyone who violates #1201 and #1202 "willfully and for purposes of commercial advantage or private financial gain" as up to $500,000 and 5 years in jail for a first offense and up to $1 million and 10 years in jail for subsequent offenses. Criminal penalties do not apply at all to non-profit libraries, archives, and educational institutions, and there is a five-year statute of limitations.
Title II: Online Copyright Infringement Liability Limitation
Sec. 202: Limitations on Liability for Copyright Infringement
#512 lays out the conditions for limiting liability for online service providers (OSPs) during their normal operation, as follows: (a) transitory digital network communications (when the transmission is not initiated by the OSP and is done via an automatic technical process, when recipients are not selected by the OSP, when copy is not accessible to anyone but the intended recipient, and when the OSP makes no modification of the content): (b) system caching (when the OSP makes no modification of the content, complies with certain standard rules for refreshing, reloading, or other updating of the materials, does not interfere with technology imposing access requirements or preconditions of use such as passwords or fees, and follows certain procedures for expeditiously removing or disabling access to materials claimed to be infringing upon proper notification); (c) information storage (when the OSP does not have "actual knowledge" and is "not aware of facts and circumstances" suggesting infringement, does not receive any financial benefit from the infringing activity, and follows the prescribed steps for removal and disablement upon notification to a "designated agent" for which the OSP has filed information with the Copyright Office); (d) information location tools such as a directory, index, pointer, reference, or hypertext link (when the OSP meets the same conditions as under (c)). In (e) limitations on liability of non-profit educational institutions as OSPs are provided when faculty and graduate students are "performing a teaching or research function" and the following conditions hold: (a) their infringing activities do not involve online access to instructional materials for required or recommended use in courses during the preceding three years; (b) there have not been more than 2 notifications of infringing activity by the named faculty member or graduate student in the previous 3 years; and (c) the institution provides "informational materials" on copyright to all users of its system. Further subsections cover: (f) liability for misrepresentations; (g) relief from liability for "good faith" takedown so long as the subscriber whose posted materials is alleged to be infringing is promptly notified, the complainant is promptly notified of any counter-notification filed by the subscriber, and the materials is replaced in not less than 10 or more than 14 business days thereafter (unless the complainant has sought a court order); (h) procedures for requesting a subpoena served on an OSP to reveal the identity of the alleged infringer; (i) the need for an OSP to adopt and implement a policy for termination and not to interfere with "standard technical measures" used by copyright owners to identify and protect their works (as long as they don’t impose "substantial" costs on the OSP or burdens on its system); (j) what injunctive relief is available and under what conditions; (k) definition of "service provider" and "monetary relief"; (l) other defenses not affected if the OSP doesn’t qualify for these limitations on liability; (m) privacy protection.
Title III: Computer Maintenance or Repair Copyright Exemption (this probably has some limited applicability to universities)
Title IV: Miscellaneous Provisions
Sec. 403 calls for the Copyright Office to conduct a 6-month study of distance education using digital technologies to determine what, if any, kinds of special exemptions are needed to promote it.
Sec. 404 amends Sec. 108’s exemption for libraries and archives to allow for creation and use of 3 digital copies of any work in their collections for purposes of preservation.
Sec. 405 (on the scope of exclusive rights in sound recordings and in ephemeral recordings) and Sec. 406 (on transfers of rights in motion pictures) probably have little, if any, applicability to universities.
Title V: Protection of Certain Original Designs (as this applies to boat hull designs, it probably has no applicability to universities)
Ownership and Use
Against the evolving legal background set forth in the appendix on "The Legal Environment," the university faces the challenge of adapting its policies on ownership and use of copyrighted materials to the exigencies of new technological means for creating and disseminating them, which have become all the more pressing with the advent of the Internet and Web-based communication in the 1990s.
Attention must be paid not only to ownership and use as separate issues but also to their interrelationship. For example, while Sec. 504(c)(2) of the Copyright Act provides that a court "shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107," it conditions this important protection from liability on the infringer being "an employee or agent of a nonprofit educational institution, library, or achives acting within the scope of his or her employment." Thus the question about how "work made for hire" is decided has ramifications for the extent to which a faculty member can claim this protection for any type of work he or she produces. Under current university policy, a faculty member would presumably have this protection in the course of producing "instructional materials" (defined as "works having as a primary purpose their use in systematic instructional activities"), but not for "scholarly" works.
In a report released last spring entitled "Intellectual Property and New Media Technologies," the Intellectual Property Task Force of the Association of American Universities (AAU) suggests as a general approach—reflecting "the norms and values of scholarly work at the research university" and its creation and dissemination as "a collective enterprise"—that "the university should own the intellectual property that is created by faculty, research staff, and scientists at the university or with substantial aid of its facilities and financial support" but, at the same time, should respect the long-standing custom that "the faculty receives the royalties on their texts and monographs, whether distributed in print or electronically." An accompanying footnote adds, "Under the principles outlined in this report, the university should own the courses taught and the courseware developed at the university" (citing Stanford’s policy for "an example of language that formulates this position").
At about the same time the American Association of University Professors (AAUP) posted for discussion two statements about distance education and about copyright. The latter begins with a preamble similar to the AAU’s confirming that "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" (from the 1940 Statement of Principles on Academic Freedom and Tenure), but reaches a different conclusion. Noting that "it has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member’s own initiative for traditional academic purposes," the statement goes on to list as examples "class notes and syllabi, books and articles, works of fiction and nonfiction, poems and dramatic works, musical and choreographic works, pictorial, graphic, and sculptural works, and educational software, commonly known as ‘courseware’…regardless of the physical medium in which these ‘traditional academic works’ appear, that is, whether on paper or in audiovisual or electronic form." Regarding "work made for hire," the statement observes: "In the typical work-for-hire situation, the content and purpose of the employee-prepared works are under the control and direction of the employer; the employee is accountable to the employer for the content and design of the work. In the case of traditional academic works, however, the faculty member rather than the institution determines the subject matter, the intellectual approach and direction, and the conclusions. This is the very essence of academic freedom." But, while opposing institutional efforts to claim such works as "works made for hire," the statement does acknowledge "situations…in which the college or university may fairly claim ownership of, or an interest in, copyright in works created by faculty (or staff) members. Three general kinds of projects fall into this category: special works created in circumstances that may properly be regarded as ‘made for hire,’ negotiated contractual transfers, and ‘joint works’ as described in the Copyright Act." Examples include: under the first category, work for the preparation of which the institution "provides the specific authorization or supervision"; under the second category, work prepared "pursuant to a program of ‘sponsored research’ accompanied by a grant from a third party" where the contract may assign ownership to the university or, if the copyright is assigned to a third party, a clause is included to "reserve to the institution the right to use the work in its internally administered programs of teaching, research, and public service on a perpetual, royalty-free, nonexclusive basis"; under the third category, "in rare situations," work "as a product of the joint authorship of the faculty member and his or her institution, so that both have a shared interest in the copyright." Regarding such joint works in the context of new instructional technologies, the AAUP statement recognizes situations in which the "university may contribute specialized services and facilities to the production of the courseware that go beyond what is traditionally provided to faculty generally in the preparation of their course materials." (Such situations may not be at all that "rare" in the future.) A distinction is further made here between situations in which the institution simply supplies "delivery mechanisms, such as videotaping, editing, and marketing services," and situations in which the institution, "through its administrators and staff, effectively determines or contributes to such detailed matters as substantive coverage [and] creative graphic elements." The institution has a much stronger claim to co-ownership rights in the latter situation than in the former, according to the AAUP. Finally, however, "given the varying roles played by the institution and the faculty member, and the nascent state of distance education programs and technologies, it is not likely that a single principle of law can clearly allocate copyright ownership interests in all cases. In some instances, the legal rules may warrant the conclusion that the college or university is a ‘joint author’; in other instances, that it should be compensated with royalties commensurate with its investment; and in yet others, that it has some sort of implied royalty-free ‘license to use’ the copyrighted work. It is therefore useful for the respective rights of individual faculty members and the institution concerning ownership, control, use, and compensation to be negotiated in advance, and reduced to a written agreement."
It is at this point that the AAUP statement connects up with the emphasis in the AAU report on the need for "early disclosure," quoting thus from the University of Chicago’s policy: "Because information technology can change rapidly, the most important obligation of faculty who exploit such technologies is early disclosure of what they are doing to their chairs or deans"—disclosure similar to what is done for discoveries and inventions, but coming "much sooner." Such early disclosure allows for working out appropriate arrangements for shared ownership if justified, devising principles for dividing revenue that take account of the parties’ respective contributions, anticipating any problems involving "conflicts of commitment," and carefully negotiating joint ventures with for-profit companies (while bearing in mind "cautionary notes" that the AAU report lays out). The latter opportunity comes with the risk that universities should have learned, from their experience with STM journals, to avoid—viz., losing control of the intellectual property that faculty generate with the resulting great cost for academic libraries in purchasing or licensing its use from commercial publishers. This is noted particularly in the report of the Copyright Committee at the University of North Carolina, Chapel Hill, which includes among its recommendations that "the university should encourage faculty to negotiate copyright contracts that reserve key intellectual property and use rights for faculty and the university" and prints as an appendix a "model contract addendum for use when assigning copyright to publishers of scholarly journals". The AAU report, too, draws attention to the need for universities to exercise better management of copyright in scientific and scholarly articles, perhaps as "a special case," even when no claim is made to ownership, joint or otherwise, and cites a recent proposal by University of Kansas Provost David Shulenberger to limit the grant of exclusive rights in articles to 90 days after which they would be deposited in a National Electronic Article Repository. (The trouble with this proposal, and others like it that aim too single-mindedly at solving the problem created by escalating prices of STM journals, is that the proposed "cure"—as pointed out to Schulenberger in recent correspondence by a director from a CIC-member university press—could spell financial disaster for "the moderately priced journals [in the humanities and social sciences] and their mainly nonprofit publishers." As this press director says about such ideas, they "nearly always, in pursuit of their large prey, threaten to crush the small nonprofit publishers and seriously impact the whole publishing endeavor in the humanities and social sciences.")
Addressing the vexing questions of ownership involved with instructional materials in this fast-changing technological environment, the University of California’s Copyright Task Force identifies issues that need special attention such as: "ownership and scope of use for class materials made available on the Web; ownership and scope of use for recordings of faculty ‘performances’ for, e.g., distance education, remedial study, etc.; responsibility for preventing infringement when making class materials available on the Web; ownership and control of materials produced in collaboration among, e.g., faculty and students, students and staff, or successive groups of students; use of course materials when faculty members leave [the university]; application of the principle of non-competition with [the university]." (The Task Force also places great emphasis on sorting out the different ownership interests of administration, staff, faculty, and students, both undergraduate and graduate—which indeed deserve careful attention.) After referring to the draft policy of the University of Kansas as an example of an institutional attempt to define ownership in "mediated courseware," the California Task Force says: "An alternative approach, more common than institutional policy, is the use of case-by-case contracts to experiment with the consequences of differing allocations of rights. Contracts would make available instructional development or media resources in exchange for vesting all or part of copyright rights in the institution." This approach seems much in keeping with the thrust of the AAU and AAUP recommendations, as well as the practices at Penn State developed under the policy prevailing in 1982.
In conclusion, as a general point about the need to remain flexible concerning ownership rights in these times of rapid change, this statement from the University of North Carolina’s report is worth quoting: "The question of who owns copyright of scholarly works [and, one might add, instructional materials] produced by faculty and staff is not especially important if the rights associated with copyright ownership are appropriately distributed." And, to reiterate a theme that runs throughout many of these reports and statements (as here quoted in the AAU report from the University of Chicago’s policy), "The creation and dissemination of knowledge is a collective enterprise at a university. Work in the classroom, library, or laboratory is necessarily a joint venture. Even when faculty members teach a class that they have prepared at home with their own materials, the work is itself supported by the salary the faculty members enjoy and all the other support—intellectual, financial, logistical, or otherwise—that the university provides…. Individual faculty members as well as the School itself are part of a larger enterprise, and this must be recognized along with financial as well as other dimensions."
If questions of ownership in today’s fluid environment are vexing, no less so are questions about use of copyrighted materials. Debates over what "fair use" means and how it can be applied in a vast array of different kinds of circumstances continue unabated. The failure of the Conference on Fair Use (CONFU) convened in 1994 by the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force to achieve wide consensus on guidelines to deal with just six types of works and uses—digital images, distance learning, educational multimedia, electronic reserve systems, interlibrary loan and document delivery, and use of computer software in libraries—after over two years of intense discussion involving nearly one hundred organizations shows how complex and controversial questions of "fair use" have become in the digital age.
These debates do not divide just commercial from non-profit entities but also different groups within academia whose interests may be severely affected by how decisions on "fair use" are made and what policies are adopted to interpret and apply this doctrine. Thus, for example, university presses that otherwise share many common concerns and values with academic libraries often find themselves on opposite sides of disputes over "fair use," fearing that the markets for their publications—already eroded by the diversion of funds away from purchases of monographs to maintenance of costly subscriptions to journals—may be eroded even further by too aggressive a policy about what activities can be pursued under the blanket of "fair use" exemption, whereas libraries for their part worry about losing access to more and more materials as restrictive licenses deprive them of the privileges tradtionally bestowed by resort to "fair use." And faculty, depending on whether they are thinking of themselves principally as teachers or principally as authors, can take different viewpoints about "fair use" in different circumstances.
The flexibility that is the virtue of "fair use" is also its chief shortcoming, as the four factors enumerated in Sec. 107 offer only a very general framework for reaching decisions about what is "fair use" in any given set of circumstances. (As the Copyright Office’s Report on Copyright and Digital Distance Education says, "Although flexibility is a major benefit of the fair use doctrine, the corollary is a degree of uncertainty and unpredictability.") Hence early on in the development of the Copyright Act of 1976 came a felt need for more specific "guidelines" to help users apply the "fair use" factors to different situations. The legislative history of the 1976 Act contains three sets of guidelines pertaining to classroom copying in non-profit educational institutions, educational uses of music, and interlibrary arrangements (the latter popularly known as the CONTU guidelines). The House Committee on the Judiciary, while noting in its Report the objections from the American Association of University Professors and the Association of American Law Schools to the first two sets of guidelines as "being too restrictive with respect to classroom situations at the university and graduate level," nevertheless "believes the guidelines are a reasonable interpretation of the minimum standards of fair use…[and thus] serve the purpose of fulfilling the need for greater certainty and protection for teachers."
These and other guidelines proposed since (as in the CONFU discussions) have a mixed reputation, however. In speaking about the role of guidelines in distance education, the Copyright Office’s Report notes: "Many copyright owners recommend pursuing the development of guidelines…and suggest that further discussion could be productive in achieving greater mutual understanding and certainty. Educational and library groups were less positive, expressing varying views. Some educators see guidelines as valuable guides to decision-making; other participants are critical of the concept or doubtful about the efficacy of any results." And, later in the Report, it is observed that "the topic of guidelines as a whole has become controversial in recent years, at least in part due to concerns about their tendency to be treated as absolute rules, and their impact on possible legislative alternatives." Among its final recommendations, the Report urges clarification of fair use: "Because there is so much confusion and misunderstanding about the fair use doctrine, including the function of guidelines, we believe it is important for Congress to provide some clarification." And it continues: "While CONFU may not have produced definitive guidelines for the digital environment, the discussions that took place helped to further the parties’ understanding of their respective issues and concerns. The Copyright Office believes that additional discussion among the interested parties of fair use as applied to digital distance education could be productive and valuable in achieving a greater degree of consensus. Such discussions in themselves, however, cannot provide the certainty that guidelines can. If guidelines or similarly broad-based solutions are to be successfully developed, the parties must be ready to accept the concept. In the past, such efforts have been successful where a consistent group of participants worked within a structure under the auspices of a government agency, with some direction provided by Congress."
Meanwhile, lacking more agreement on guidelines than we have now, what should our attitude toward them and use of them be? Different universities have taken different approaches to this question. Perhaps because they have been cited in several court cases already, the classroom guidelines are accorded explicit deference in the policies of some universities. The Copyright Committee of the University of North Carolina, Chapel Hill, proposes that these guidelines govern the distribution of materials to students in the classroom and (unlike many institutions that believe these guidelines can be applied to coursepacks) holds that "production and sale of coursepacks is not fair use and that permissions to copy must be obtained from the copyright holder and royalties must be paid if requested." At the same time, in another of its recommendations, the Committee expresses the confidence of the university that "its faculty, librarians, and staff are able to make good-faith decisions about fair use that reflect the particular circumstances relevant to such decisions."
This last quotation repeats almost verbatim Principle 4 from Indiana University’s Policy on Fair Use of Copyrighted Works for Education and Research: "The university is confident that its faculty, staff, and librarians are able to make good-faith decisions about fair use, and that their decisions will best reflect the particular circumstances relevant to the decision." The chief difference between Indiana’s approved policy and North Carolina’s proposed policy lies in their differences over the role of guidelines. Indiana’s Principle 8 states: "Fair use is not determined by ‘guidelines’ that purport to quantify the boundaries of fair use." In elaborating on this refusal to accord guidelines much, if any, respect, Indiana’s policy explains: "Such guidelines are too often an unduly narrow or rigid definition of fair use, and they usually impose additional restrictions and conditions that are not part of the law." Instead of relying to any degree on guidelines, even as a "safe harbor," Indiana prefers the protection afforded by Sec. 504(c)(2), as stated in Principle 6, where it is noted that the law "limits the liability that educators may potentially face, as long as they hold a reasonable and good-faith belief that their activities are fair use in light of the four factors." (However, as explained above, Sec. 504(c)(2) provides this protection only to a faculty member operating in his or her capacity as an "employee" of the university "acting within the scope of his or her employment"—which, depending on how employment is interpreted in any given university setting, only covers a part of any faculty member’s normal activities as teacher and scholar.)
Inhabiting a place somewhere between North Carolina and Indiana, the University of Texas—which has probably done more than any other university so far to help educate its constituents about copyright law—takes a selective approach to guidelines. Eschewing reliance just on "good faith" alone, Texas’s policy resorts to a modified use of guidelines, as explained in the opening section of its document entitled "Fair Use of Copyrighted Materials": "We have reviewed all the Guidelines [including the CONFU guidelines] and have decided to take a different approach …. We call our approach ‘Rules of Thumb’ for the Fair Use of Copyrighted Materials. Like the Guidelines from which they are in some cases derived, the Rules of Thumb are tailored to different uses of others’ works. But unlike the Guidelines, they are short, concise, and easy to read. And they are part of a larger strategy to meet our needs for permission when fair use is not enough; to reduce our need for permission in the future by licensing comprehensive access to works; and to take a more active role in the management of the copyrighted works created on our campuses for the benefit of the university community." Texas’s "Rules of Thumb" provide help to faculty, staff, and students in using coursepacks, distance learning, image archives, multimedia works, music, copies for research, and electronic reserves. With respect to coursepacks, they depart from the Congressionally approved classroom guidelines by dropping the requirement for "spontaneity" of use and the prohibition against creating anthologies (thus making them applicable to coursepacks in a way they otherwise—as North Carolina recognizes—are not); they also sanction use of "single chapters, single articles from a journal issue, several charts, graphs, or illustrations, [and] other similarly small parts of a work" without permission for one semester but suggest that permission be obtained "for materials that will be used repeatedly by the same instructor for the same class." (Whether this restriction is enough to avoid harming the market for a copyrighted work—as the fourth factor of "fair use" requires—is a question that can only be decided on a case-by-case basis.)
Which of these models should Penn State follow? It is probably premature to make a recommendation at this early point in our deliberations. In its interim Policy Governing Copyright Clearance, the university has already taken one step in the direction of adopting guidelines—conservatively enough, as the classroom guidelines have so far received more Congressional and judicial sanction than any others. Short of adopting guidelines or some modified version of them like Texas’s "Rules of Thumb," it is possible at least to use the existing guidelines as informational resources, in the sense that they do reveal facts about the attitudes of the various parties that agreed to them. For example, since the Association of American University Presses (along with the American Council of Learned Societies, American Association of Law Libraries, Music Libraries Association, Special Libraries Association, Indiana Partnership for Statewide Education, and the National School Boards Association) agreed to the electronic reserve guidelines—in order to forestall the use of electronic reserves as coursepack-producing facilities—it may be presumed that the publications of university presses that are members of the AAUP can be used safely in accordance with those guidelines’ provisions. Similarly, knowing that the publishers who belong to the Association of American Publishers, which endorsed the educational guidelines for multimedia, presumably would not object to uses that conform to these guidelines is a start in the direction of determining what "fair use" in this context means, although it hardly need be the end point of the analysis, especially inasmuch as "transformational" use—which is characteristic of uses of works combined to form multimedia—is especially favored by judicial interpretations of "fair use," as in cases like Campbell v. Acuff-Rose (1994) cited above. Making use of guidelines as informational resources in this manner does not have to lead to overly restrictive applications of "fair use"—a common complaint against employing guidelines at all—so long as this does not result in shortcircuiting the full four-factor analysis that any court in interpreting "fair use" must itself follow. As Texas’s policy advises, "If you need to make a more extensive use of another’s work than suggested by the appropriate Rule of Thumb, or if there isn’t an appropriate Rule of Thumb, use the four-factor fair use test to determine whether the use is fair or requires permission." It must be stressed, however, that this approach and any other that relies even less on any kind of guidelines, while it "encourages active exploration and negotiation of the boundaries of fair use" (to quote from California’s Task Force Report), "will be institutionally viable only if it is supported by a well-staffed infrastructure of education and support that will help faculty, students, and staff throughout the university become competent to make reasoned judgments"—the kind of infrastructure that Texas has already made great strides toward developing but Penn State has only barely begun to create. Putting such an infrastructure in place surely must be the first and most essential step in implementing a copyright policy here that accords with the new responsibilities the university has taken on in registering itself as an online service provider under the provisions of the Digital Millennium Copyright Act, which mandates that the university "provides to all users of its system or network informational materials that accurately describe, and promote compliance with, the laws of the United States relating to copyright."
SENATE COMMITTEE ON RESEARCH
(Advisory and Consultative)
[Implementation Date: Upon Approval of the President]
In November 1998, Rodney Erickson, former Vice President for Research, appointed a Task Force on Intellectual Property Policies and Procedures and charged it to review existing University policies and procedures and to provide recommendations that would:
·establish a consistent set of University policies and procedures for intellectual property
·strengthen Penn State’s faculty support infrastructure in order to increase the magnitude and effectiveness of research activity
·enable the University to capitalize better on the transfer and commercialization of its intellectual property
·avoid the unplanned loss of ownership of intellectual property
The Faculty Senate Committee on Research has reviewed the Report of the Task Force on Intellectual Property Policies and Procedures. The committee commends the members of the task force for the time and effort they put into developing the report. However, the committee believes the task force report is not fully responsive to the charge the task force was given. Specifically, the report does not "establish a consistent set of University policies and procedures for intellectual property," and the value of the report in meeting the other charge items is unclear without the policy development. The Task Force report notes that it has not attempted to develop detailed policies, procedures, and programs to address intellectual property issues and recommends that the Vice-President for Research form committees to do that development. However, because the Task Force report is in response to a formal charge, the Senate Committee on Research believes it is important to formally recognize the limitations of the Task Force Report for setting policy. Therefore:
The Senate Committee on Research asks that the Senate advise that the Vice President for Research receive the Report of the Task Force on Intellectual Property Policies and Procedures for information only, and that the report not be used to define or implement intellectual property policy.
The Senate Committee on Research believes that the charge as originally given to the Task Force on Intellectual Property Policies and Procedures was, and remains, of great importance for Penn State. The scope of the intellectual property issues that the current task force attempted to deal with, including copyright, patent, and courseware policy, is very large and appears to have limited the Task Force effectiveness. Therefore:
The Senate Committee on Research recommends that the Vice President for Research appoint small bodies, composed of faculty and administrative representatives, to focus on copyright, patent, and courseware policy issues separately.
The report produced by the Task Force on Intellectual Property Policies and Procedures provides a useful educational foundation for intellectual property policy development and will aid the new bodies in their work, as will the information gained in the Senate forensic session.
SENATE COMMITTEE ON RESEARCH
Guy F. Barbato, Vice-Chair
James J. Beatty
Frank A. Behum
Phillip R. Bower
Roy B. Clariana
Stephen E. Cyran
Thomas N. Jackson, Chair
Ernest W. Johnson
John D. Kissick
Eva J. Pell
Gary W. Rogers
Joan S. Thomson
Vasundara V. Varadan
SENATE COMMITTEE ON COMMITTEES AND RULES
Revision of Constitution, Article I, Section 1
[Implementation: Upon Approval by the President]
Article I of the University Faculty Senate Constitution defines the three functions of the Senate as Legislative, Advisory and Consultative, and Forensic. In 1985, the Senate passed legislation under the title "New Categories of Senate Actions" that specified five kinds of actions that the Senate could take. It was that legislation which created the distinction between Legislative reports and Advisory and Consultative reports. However, the rest of the legislation is not reflected in the Constitution. This legislation is intended to bring the Constitution into line with the 1985 legislation and with historical practice by adding two additional categories to the functions of the Senate--Informational and Recognition.
Revise Article I of the Constitution of the University Faculty Senate by adding the following to Section 1:
To receive and disseminate information to the Senate and the University that is
deemed important by the Senate or its committees.
To recognize or honor those individuals, organizations, or institutions the Senate deems worthy of special recognition by the University Faculty Senate. Such courtesy actions normally shall originate from Senate Council or the Senate Officers.
The current Constitution recognizes only three functions of the University Faculty Senate. However, by historical practice, the Senate has also served other functions such as receiving and disseminating information and honoring those persons it wishes to recognize for their contributions to the Senate or the University. In fact, those functions are listed under the order of business in the Standing Rules, Article I, Section 2 of the Senate. Furthermore, those functions were formally included in the legislation passed by the Senate at its March 26, 1985 meeting. The present legislation is intended to bring the Constitution in line with historical practice, the 1985 legislation, and its own Standing Rules by including informational and courtesy functions in Article I of the Constitution.
COMMITTEE ON COMMITTEES AND RULES
Leonard J. Berkowitz
Christopher J. Bise
Edward W. Bittner
Barton W. Browning
Mark A. Casteel
Caroline D. Eckhardt, Vice Chair
Deidre E. Jago
Murry R. Nelson
Jean Landa Pytel
Tramble T. Turner
Nancy J. Wyatt, Chair
SENATE COMMITTEE ON UNDERGRADUATE EDUCATION
Toward a More Vibrant Learning Culture at Penn State
[Implementation Date: Upon approval by the President]
The Vision of a Vibrant Learning Culture
Imagine an atmosphere thick with the continual exchange of knowledge and ideas, teacher working with student, student working with student, researchers, graduate students, visitors, scholars of all types working together to learn and understand more, creating, clarifying what is unclear, learning to apply knowledge with technology, uncovering the unknown and assimilating the known. Imagine a Penn State where faculty and students are continually engaged in intellectual activity, where learning is so thick in the air it is palpable and where knowledge and understanding are explored everywhere, in classes, in residence halls and outdoor commons areas, in seminars, films, lectures, debates.
Our vision of a Vibrant Learning Culture at Penn State is admittedly an idealized one, a vision tempered with the reality of a large state university where budgets are limited, where faculty time is split among a multiplicity of directions, and where young students face a bewildering and demanding new environment, often with additional pressures such as outside employment. Nevertheless, great potential for movement exists at Penn State if this vision of a Vibrant Learning Culture is continuously held up as a beacon, by faculty to direct their teaching, by students to direct their learning, and by administrators to direct the development and implementation of policy. This vision underlies this document and all recommendations herein.
The Focus: Student Involvement in Learning
A vibrant learning culture with teachers and students energetically participating in the learning process requires dedicated interaction between teacher and learner. Proposals to improve education have historically focused on the teacher. Many programs have been created at Penn State to help faculty improve their teaching and faculty are continually encouraged to apply new teaching methods and add new tools to their teaching portfolio. The primary goal for most faculty, however, is that their students learn, and learn well.
Whereas the teacher has the responsibility to apply effective teaching methods and learning tools, overall improvement in learning can take place only if the student responds responsibly to the teacher and applies the learning tools as instructed. Both quality teaching and quality learning require hard work, diligence, and major time commitment. Given the focus of the past several years at Penn State on improving the teaching process, attention should now be directed towards the student in the learning process if improvements in teaching are to have the desired impact.
Most students bring to the university an honest desire to learn and progress in their chosen fields of study. The recommendations in this proposal address the partnership between the faculty-teacher and student-learner in the personal process of learning with a focus on the maturation of our students in the learning process. Our report addresses the question "what are the more essential elements required to learn?" We outline expectations of our students to learn well and discuss elements in teaching necessary for our students to master the learning process. We hope that both faculty and students recognize the necessity of the messages in this report for effective learning and can suppress the human tendency to respond defensively while reflecting on the importance of this proposal to the future of our students and the learning culture at our university.
We ask our student learners and our faculty teachers to embrace the messages in this report with the underlying vision of a continually more vibrant learning culture at Penn State. The success of this long-term process will depend on constructive positive action which maintains the philosophy underlying our objectives and vision. Our proposal should be viewed as one element in a continuous process and we invite our faculty, students and administrators to put into practice additional constructive measures to help move the Penn State community to ever-increasing levels of learning and scholarly activity.
Elements of the Proposal
The proposal contains two basic elements to encourage better learning and continuous movement towards and ever more vibrant atmosphere of scholarly activity:
It is essential that we teach our students consistently how to learn and that learning requires attention, responsibility, diligence, and hard work. We consequently identify "Expectations for a Vibrant Learning Environment" which describe explicitly to our students essential elements underlying quality learning, and to our faculty elements underlying effective teaching of the learning process. We propose that the expectations be continuously communicated to our students, from the day the student applies to the University to the day of graduation, and that faculty implement these expectations by teaching the learning process together with course subject matter. We propose specific places in the academic career of our students where the messages should be communicated. However, there will be no impact (or even negative impact) unless Penn State faculty embrace these expectations and adjust their teaching to encourage the highly charged atmosphere of vibrant learning we seek.
Coordinated assessment of change in learning behavior with constructive feedback loops to enhance the learning culture
To enhance the learning culture over time it is important to assess change in learning behavior of our students in coordination with constructive feedback both to the faculty and to the student to continually encourage improvement in the learning-teaching process. The goal is to develop a structure that naturally moves the Penn State academic community continuously to higher levels of dedication to the learning process and a more energized atmosphere of scholarly activity.
How to attain useful assessment and feedback with the natural effect of enhancing the learning culture is not obvious, nor simple. Creative ideas must be developed and explored, initially at the experimental level, to discover what data collection instruments coordinated with what feedback methods have the greatest potential to constructively improve the educational process over the long term, and what approaches do not. Whereas we do not recommend specific methods in this report, we propose guidelines under which methods should be developed, and we suggest a few ideas with potential merit. We recommend that the further development of ideas and methodology be made a responsibility of the Senate Committee on Undergraduate Education for presentation to the Faculty Senate during academic year 2000-2001.
Expectations for a Vibrant Learning Environment
The Student in the Learning Process. To maintain a high level of learning and scholarly activity requires the following characteristics of the student learner:
a) Maintain an atmosphere of academic integrity, respect and civility.
A vibrant learning culture assumes honesty and integrity in one’s work. Academic integrity must be accepted as a way of life. Respect for teachers and fellow students and civility in voice and word is necessary.
b) Have a strong work ethic.
Quality learning requires a strong desire to learn, to relearn and to progress. A university education requires hard work and major time commitment (typically 48-64 hours/week for a 16-credit load). High quality effort is expected.
c) Manage their time wisely.
Quality learning requires sufficient time to study, analyze, absorb and synthesize knowledge into understanding. Careful organization and use of time are therefore essential, including beginning and completing assignments in a timely manner and allowing sufficient time to assimilate knowledge during exam preparation to maximize learning.
d) Participate actively in class.
Complete class attendance is assumed. A strong learner is an active participant in class, mentally and verbally, and students should come to class prepared to clarify understanding from out-of-class readings, assignments and previous lectures.
e) Properly approach out-of-class learning.
The student must understand that he or she is ultimately responsible for his/her own personal learning process and must respond responsibly to the instructions of the teacher to learn. It is essential that the learner make proper use of learning tools and strategies as directed by the teacher (reference material, assignment analysis, follow-up material, etc.). To learn well it is necessary that assigned readings be studied before class, and it is essential that material from previous courses be relearned when needed. Furthermore, the necessity of quality written and oral communication cannot be overemphasized for learning and the future career of the student. Students must seek help from the teacher and teaching assistant when needed and should take advantage of university-wide resources for learning if necessary. A healthy and balanced lifestyle is important.
f) Reflect on the educational process.
It is essential that the student recognize that learning is not memorization of facts, but rather development of understanding and the integration of knowledge. The learner must therefore assimilate new material with material from previous courses and must relearn material as necessary. It is useful to interact with colleagues in the assimilation and clarification of knowledge.
g) Perform self-assessment.
A student learner should regularly evaluate his/her strengths and weaknesses, effectiveness of study habits, level of responsibility in learning, and progress toward educational goals. Effort should be continually directed to improve weaknesses, and to strengthen oral and written communication skills and group interaction skills. Student portfolios to record and track progress can be useful for this purpose.
The Teacher in the Learning Process. Certain elements within the teaching process are necessary to instill effectively the process of learning in our students. For each item in the list above there exist characteristics in teaching necessary for a strong teacher-learner relationship:
• Maintain an atmosphere of integrity, civility and respect within and outside the classroom.
• Have a strong desire for your students to learn well, provide effective tools to help your students learn, and teach the learning process through the course structure. Encourage constructive feedback to enhance student-teacher interaction.
• Quality teaching requires a reasonable balance among teaching, advising, research, and service. It is important that student assignments and tests be designed to encourage and enhance student learning, and that student work be returned to students in a timely manner to encourage continued learning.
• It is important that the classroom structure include student interaction to encourage active student participation in learning, and that time is allowed for the clarification of understanding.
• For quality learning it is necessary that effective tools and strategies be provided by the instructor that, when used properly, lead to a high level of learning by the student. The expectations of the teacher (e.g. assignment and course strategy) should be clear to the student. Sufficient availability for students to seek help must be provided.
• It is important for quality learning that the teacher relate course material to other courses and demonstrate linkages in knowledge and understanding.
• In order to develop an effective personal teaching approach, faculty should monitor the progress of their students and effectiveness of teaching strategies, and improve where possible. To advance ideas for improving student learning, faculty should take advantage of the many university programs available.
The University Faculty Senate endorses the following recommendations:
1. That faculty embrace, communicate and continually reinforce the "Expectations for a Vibrant Learning Environment" in their course structure. The Provost and President should actively support faculty in this process.
Rationale. For the process we propose to work, it is essential that a critical mass of faculty not only accept the above expectations as a necessary part of quality learning, but also incorporate these expectations at the core of their teaching and advising. Indeed, verbalizing expectations to our students without requiring a responsible approach to learning can have a negative impact by creating ambivalence and cynicism towards education at Penn State. Students must be continually taught how to learn, and that irresponsible behavior towards learning is not acceptable. Continual discussion among faculty of the application of expectations in teaching the learning process is important. Similarly, the improvement we seek will not occur if faculty simply increase student expectations without providing adequate support and feedback. For effective student learning, it is important that faculty also embrace the elements underlying effective teaching identified above.
2. That faculty teaching First Year Seminar emphasize the "Expectations ...", and the importance of these expectations to the educational process during the stude studies at Penn State and beyond.
Rationale. Entering university students cannot be expected to comprehend fully the implications of the expectations to their personal learning process. We suggest that first-year seminar is an ideal place to initiate exercises that teach the implications and importance of the expectations. For example, a time management web site (recommendation 4) could be used as part of a lesson on time management in the first-year seminar. Elements underlying the learning process might be taught through example, while ethics, academic integrity and civility might be addressed in discussion format. Residence life might develop programs supporting the expectations, and could consider other ways to help make the residence experience more conducive to vibrant culture of scholarly activity.
3. That the Provost initiate appropriate steps within the admissions process, FTCAP and orientation to explain the "Expectations ..." to new students.
Rationale. To underscore the importance of these expectations, students must be exposed to them early in their education. We propose that the expectations be included in the material sent to students with their letter of acceptance, for example within a special pamphlet created for this purpose. We propose that the expectations be prominently displayed on the Penn State web site, with links to related web sites (as proposed, for example, in recommendation 4). We propose that presentations made during FTCAP include discussion of the above expectations, and that expectations be incorporated within discussion sessions among students.
4. That an appropriate University agency develop, catalog and disseminate time management and related tools, references and best practices for use by students, advisors and other teaching groups.
Rationale. How faculty teach the learning process and underlying expectations should not be prescribed, but the University can nevertheless provide support, for example through CELT and other instructional support offices. A major element in learning is the application of quality time by students to assimilate and learn at a high level. Poor learning is often associated with ineffective use of time, sometimes exacerbated by outside employment responsibilities. We envision an interactive time management web-based tool with which students may input class, work and private schedules and have returned viable weekly study and living schedules with recommendations for time management. Such a site could be expanded over time to include, for example, statistics showing the average performance of a student in a given major with given work and course load. Such tools will help teach students the time requirements necessary to learn at a high level and how better to organize their time. Data collected on the learning process (below) can be subsequently organized and disseminated to students and faculty to encourage improvement in learning.
5. Towards the development of instruments to assess change in student learning with constructive feedback loops, we recommend:
5a. That a consultative and advisory report be developed by the Senate Committee on Undergraduate Education which proposes a plan for assessment of student learning behavior coordinated with feedback of useful data to the student, instructor, department and college in a manner which constructively encourages growth in both learning and teaching over time.
5b. That the report be developed with the considerations below, but always in context with the vision and philosophy presented in the first two sections of this document.
5c. That the Committee make every attempt to present its report to the Faculty Senate during academic year 2000-2001.
Rationale. For the application of expectations to create continuous natural growth in the learning culture at Penn State it is important that feedback structures exist in which useful data describing the maturation of our students in learning and student response to learning tools and teaching methods are constructively fed back into both the teaching and the learning process. We propose below guidelines for development within the vision of an enhanced learning culture, a vision that must underlie all potential proposals. Because reference to "assessment" often directs attention to the SRTE, we emphasize that the SRTE is not a model for what we propose. We propose instead assessment of change in the student learning process with a feedback loop structure designed to help the teacher, student, department and college continually enhance a lively atmosphere of scholarly activity in which life-long learning is a natural consequence of a Penn State education.
Considerations for the development of instruments
to assess change in Student learning
with Constructive Feedback Loops
1. We suggest that data of two general types be collected in standardized formats that assess student improvement in the personal process of learning at two levels:
A. locally: assessment from beginning to end of individual courses
B. globally: periodic assessment over the academic career of the student
We propose assessment of maturity in the personal process of learning within our students as they progress through their courses and programs of study, and the level and quality of response to tools for learning provided by the teacher. A variety of data could be collected to allow for a multiplicity of statistics relevant specifically to the elements underlying the process of learning described in "Expectations for a Vibrant Learning Environment." These data should be designed to (a) help the teacher determine the value of specific techniques and tools implemented to aid the student in learning, (b) help the student improve their personal process of learning, and (c) help departments and colleges foster ever more vibrant atmospheres of scholarly learning. Because the student body and the structure of the learning process varies from program to program, we suggest that the data be collected at the Department level (or equivalent) with coordination by the College and University.
2. We suggest that data on student learning be collected as paired groups over local or global periods of time (guideline 1) so as to obtain Statistics on change over time.
Assessment data typically provide only single-time statistics with no direct measure of growth in learning of individual students over time. We suggest that the value of our teaching methods, "new" or "old," are best measured through the changes in the process of personal learning by our students between the time they enter our courses to the time they leave (local), and between the time they enter our programs to the time they leave (global). We therefore recommend that data that assesses improvement in personal learning be collected from the same student at multiple points in time for local assessment (e.g., at the beginning and end of a course) and for global assessment (e.g., in the Fall of every year). The responses to a variety of questions useful to measure the progress of our students in their learning process should be organized statistically in a variety of ways to track change over time (e.g., differences). A variety of statistical measures might be developed to describe: (a) change among all students within an individual course for use by the instructor (local), (b) change across courses taken by an individual student for use by the student (local), (c) change within a single term among all students and all courses taught within a department for use by the department (local/global), (d) change across student years (1st year, 2nd year, etc.) for use by departments and colleges (global), and (e) change over multiple years showing growth over time also for use by departments and colleges (global).
3. We suggest that various feedback mechanisms be constructed and tested with the dual objectives of enhancing the personal learning process of our students and encouraging faculty to focus their teaching methods on the learning process. We further suggest that the recommendation be made that proposed feedback methods be closely monitored and that only constructive approaches that foster improvement in the learning culture be allowed to survive.
The time and effort required for assessment of student learning behavior will have no impact unless a feedback structure exists which constructively feeds assessment data back into the teaching-learning process with the natural consequence of improvement in the learning culture over time. Ideally, feedback loops which lead to higher levels of scholarly interaction between student and teacher should be a natural outcome of the assessment process. Because it is difficult to know if any particular method will, in fact, have this as a natural outcome, it is imperative that no feedback structure be institutionalized until it has been demonstrated to have a positive impact on the learning culture at Penn State. As with development of assessment instruments themselves, we suggest that the development of constructive feedback loops be incorporated into the assessment structure at the department level with strong support from the College and University.
Local Assessment. It could be valuable to design well-coordinated pairs of questionnaires, the first distributed at the beginning of a course (e.g., first week) and the second at the end (e.g., final week) with well-designed questions that probe the students on their personal process of learning. The questionnaire would include elements from the "Expectations ..." as well as questions of particular interest to the instructor, department and college. The questionnaires might be placed on the web to facilitate the automated collection, assimilation and presentation of statistics. Questionnaires would be identified with a single student to track change over time. Feedback might be achieved through well-designed presentations of data to the instructor, student, department, and college using easily interpretable graphical techniques.
Global Assessment. The data collected within courses might also be used for global assessment of longer term changes by the statistical measures formulated. It might also be useful, however, to collect data outside the classroom, perhaps on a yearly basis of more direct relevance to the environments of learning at the departmental and college levels. Again, these data might be collected via the web with identifiers to allow for comparisons over previous years and growth statistics easily generated for students grouped in various useful ways to ascertain patterns of overall growth as our students progress through their programs of study.
SENATE COMMITTEE ON UNDERGRADUATE EDUCATION†
James G. Brasseur
George J. Bugyi
John J. Cahir
William J. Campbell
Joseph J. Cecere
Paul F. Clark
Gregory K. Farber
Erika R. Fullerton
M. Margaret Galligan
Andrzej J. Gapinski
David J. Green
Gary L. Hile
William C. Lasher
Jamie M. Myers, Chair
Robert D. Ricketts, Vice-Chair
Thomas A. Seybert
Carol A. Smith
Jane S. Sutton
Eric R. White
Charles E. Yesalis
†report prepared by the
Subcommittee on the Learning Culture at Penn State
James G. Brasseur (Chair)
John J. Cahir
William C. Lasher (Co-Chair)
Arthur C. Miller
Eric R. White
Student Computing Initiative
Penn State has made steady progress in implementing the recommendations of the "Student Computing Initiative." As you will recall, Penn State has recommended that all first-year students either own or have easy access to a personal computer. The initiative has been widely discussed by various committees of the University, including CADs and ACUE. Information about the initiative will be sent in May to all 16,000 of the "paid accepts," and information will also be provided at FTCAP for first-year students. In addition, the Access userid and password will be made available to students at FTCAP, enabling students to use the MOC website for ordering hardware or software and to use other University resources that are password protected.
To make it easy for students, parents, and faculty to find answers to their questions, we have created a website that will have accurate information about this effort (www.psu.edu/studentcomputing). In addition, there will be an article about the initiative in Orientation Express and Preface, publications that will reach about 13,000 students who are new to the University each year. There will be several articles in Intercom later this spring, the focus of which will be how first-year students have used computing in their coursework.
The Center for Academic Computing will be providing three week-long series of workshops this summer at University Park (May 15-19, June 19-23, and 17-21) and will work with the Royer Center to provide workshops for non-UP faculty in late May. (The precise dates and locations have not yet been finalized.) We will target some workshops on the special needs of teaching assistants and the special opportunities of the freshman seminar. We believe that all first-year students will find several courses in which information technology plays an integral role.
In support of increased training opportunities for faculty and students, central administration has provided funding to the Center for Academic Computing to increase the number of web-based tutorials from ~50 to ~600 and to hire an additional training specialist. We will develop focused training plans and resources for students in various curricula, thereby complementing seminars and workshops offered by CAC and the campus colleges.
We are confident that this initiative will enrich the educational experience of our students.
Gordon De Jong
Murry Nelson, Chair
P. Peter Rebane
ADMISSIONS, RECORDS, SCHEDULING AND STUDENT AID
Report of High School Nondegree Students Enrolled in Credit Courses
The Senate Committee on Admissions, Records, Scheduling and Student Aid reviews the data concerning the non-degree enrollment of high school students in credit courses.
The attached tables give the information that the Senate requires in the current legislation and additional historical data as follows:
Table 1 Summary of the number of students enrolled by campus
Table 2A Grade point average distribution for all students enrolled SU97, FA97, SP 98
Table 2B Grade point average distribution for all students enrolled SU98, FA98, SP99
Table 3A SU97, FA97, SP98 enrollment numbers by high school level and admission status of students with expected entrance 1998
Table 3B SU98, FA98, SP99 enrollment numbers by high school level and admission status of students with expected entrance 1999
Table 4A Courses taken SU97, FA97, SP98
Table 4B Courses taken SU98, FA98, SP99
Table 5 Campus Programs and Recruitment Efforts.
The data supports the continued efforts at recruitment and enrollment of high school students in credit courses. Students take a wide variety of courses and experience a level of success comparable to traditional students. Additionally, the yield of admissions from this population is higher than most other recruitment methods.
SENATE COMMITTEE ON ADMISSIONS, RECORDS, SCHEDULING AND STUDENT AID
JoAnn Chirico, Chair
Lynn E. Drafall
Renata S. Engel, Vice-Chair
Peter D. Georgopulos
Geoffrey J. Harford
Arthur C. Miller
Robert B. Mitchell
Steven M. Paladini
Barbara L. Power
John J. Romano
J. James Wager
Adrian J. Wanner
SENATE COMMITTEE ON COMPUTING AND INFORMATION SYSTEMS
In today's computing and communications climate, Virtual Reality (VR) tools and interface techniques are becoming increasingly relevant within many research, instruction and communication contexts. Ever-increasing amounts of data are becoming available to academics and the public, greater graphics and computing power is becoming more widely distributed in the marketplace; and the convergence of formerly disparate media forms is occurring at breakneck speed (rich multimedia, video and 3D graphics content on the internet, for example). In particular, support for VR facilities and investigations may be critical for Penn State to maintain its competitive position in research, to provide opportunities for inter-institutional collaboration, and to offer a rewarding educational experience for our students.
Several VR initiatives are emerging at Penn State. The Center for Academic Computing offers a Visualization and Immersive Environments Testbed, the centerpiece of which is an Immersadesk large-format VR display system. CAC Visualization Group staff investigate VR techniques and support the use of various programming methods, applications and devices in the facility. The CAC makes this facility freely available to faculty and students who are interested in exploration of VR techniques within their respective disciplines. In particular, CAC facility has provided a context for several recent and forward looking investigations in the use of projection-based VR: for geographic and climatological data visualization, architectural design education, visualization of human movement studies, visualization of molecular dynamics and structure, developmental psychological study of 3D spatial awareness in children, investigation into cross-platform and networked programming development environments, and independent graphical programming projects by students in computer science. In addition, the Immersadesk facility at CAC has been actively used in a number of courses taught in the Departments of Architecture (ARCH481) and Communication (CSE497), as well as in first-year seminars conducted by the Departments of Nuclear Engineering and Communication.
Other on-campus projection-based VR initiatives are beginning as well. The Applied Research Laboratory has received funding to build a C2 (CAVE-like) system, which will be available on a limited basis to the broader University community. A recently successful NSF Major Research Instrumentation grant will fund VR acquisitions in three University Park locations. These will be shared among researchers from several departments in the Colleges of Science and Engineering who are involved in the grant. With these several initiatives, there is an emerging opportunity to develop a significant community of VR developers and researchers at Penn State.
Networked VR holds the promise of highly interactive, experiential collaboration among students or researchers at remote locations or from different institutions. For example, computational chemists could get together in virtual space to review the results of their most recent dynamics simulation, or architecture students could hold shared design review sessions in which remote participants get together within a shared virtual architectural space. There is an active and open national research community involved with telecollaborative VR applications, a community with which the CAC and Penn State faculty from Geography and Architecture have already begun participation in explorations of networked VR. The availability of multiple VR facilities at Penn State, combined with high-performance networking (e.g. Abilene, Internet2) among these local facilities and between Penn State and potential collaborators at distant institutions, will be invaluable for Penn State researchers to participate in this growing collaborative research community.
VR is inherently an interdisciplinary and people intensive pursuit. Successful use of VR involves the knowledge specific to the academic discipline in which VR techniques are to be employed. For VR systems to be employed reliably within a given context, it is important to combine and encourage efforts of Penn State experts in human computer interface design, computer mediated communication, interactive graphics programming, data communications networking and system administration. Open, active, and interdisciplinary use of the emerging Penn State facilities may significantly improve the overall quality of research and instruction. Such an approach can provide a collaborative environment in which productive cross-fertilization can occur. By providing such an environment, Penn State can develop the interdisciplinary teams that will foster a rewarding educational experience for our students, and can successfully attract further funded research in this area.
SENATE COMMITTEE ON COMPUTING AND INFORMATION SYSTEMS
Thomas W. Abendroth
J. Gary Augustson
Joseph E. Borzellino
Fred G. Fedok
Terry P. Harrison
Pamela P. Hufnagel
Carly M. Lipsitz
Ronald L. McCarty
Terry J. Peavler, Chair
Semyon (Sam) Slobounov, Vice-cair
John B. Urenko
Roger P. Ware
Senate Committee on Faculty Benefits
Faculty Salaries Report, External Comparison
The Faculty Benefits Committee is charged by the Senate with preparing an annual Faculty Salaries Report. The report focuses on internal or external comparisons in alternating years. This year the report emphasizes comparisons of Penn State faculty salaries with those at other universities.
Data and tables were provided by the Center for Quality and Planning, Louise Sandmeyer, Executive Director. Their assistance is greatly appreciated.
The University participates in two faculty salary data exchanges. Penn State faculty salaries can be compared to data from each of these two sources.
Association of American Universities Data Exchange (AAUDE) is a group of 64 universities that share salary data. We usually compare to the 32 public universities in the group. In any particular year, 20 to 30 of the public institutions will release salary information. These institutions include the Big Ten universities and other large state universities. This year data was available from 27 public institutions: Arizona, Colorado, Cornell, Florida, Illinois, Indiana, Iowa, Iowa State, Kansas, Maryland, Michigan, Michigan State, Minnesota, Missouri, Nebraska, North Carolina, Ohio State, Oregon, Penn State, Pittsburgh, Purdue, Rochester, Texas, Virginia, U of Washington, Washington Univ., and Wisconsin. Reported faculty salaries are averaged across this group of universities for each college and rank. The shared salary data only includes the primary campus location and excludes administrators, including department heads. All AAUDE schools agree to follow a standard conversion of 0.818 (9/11) for full year to 9 month salaries for data exchange purposes. This is only used for the faculty in Agricultural Sciences who are on twelve-month salary. The AAUDE does not collect data for librarians and colleges of medicine. At other institutions, librarians may be part of academic colleges or may be staff positions. Moreover, the number of rank levels for library faculty is not consistent across institutions. Thus, it is not possible to compare PSU library faculty with data from other universities in the AAUDE. For colleges of medicine, clinical and academic responsibilities can not be clearly distinguished at all universities. Also, the College of Medicine may not be at the primary campus location (as is the case for Penn State’s Hershey Medical Center) and AAUDE only considers the main campus. Faculty salaries within the College of Medicine are not reported here due to the restructuring of the Hershey Medical School and the difficulty in defining the
different components of the faculty salary. The committee will continue to work on a report of faculty salaries in the College of Medicine and plans to present a separate report in Fall 2000.
American Association of University Professors (AAUP) reports average faculty salaries by rank at each campus location for all universities nationally. AAUP does not report average salaries for each college; it only reports averages across the entire campus location. Administrators, including department heads, are not included in the data. The AAUP data includes salaries for library faculty but not for faculty in colleges of medicine. All AAUP data also applies the standard conversion of 0.818 for full year appointment salaries to 9 month salaries for comparison purposes.
Tables 1a-d list the Penn State average salaries at University Park by rank and college. Comparison is made with the average AAUDE faculty salaries by rank and college. Each of Tables 1a-1d highlights a different way to compare data. The tables show that faculty salary relationships by rank and college generally follow similar patterns at Penn State and at other AAUDE institutions.
Table 1a compares the Penn State average salaries to the average AAUDE salaries in three different years. This can reveal a change in the competitiveness of Penn State salaries compared to the group. A drop in the ratio from 1994-95 to 1998-99 indicates that the present PSU salaries are less competitive than four years ago. A ratio of University Park salaries to AAUDE average salaries that is less than one indicates that Penn State salaries are below the average in the AAUDE. It can be noted that the PSU Assistant Professor salaries in Arts & Architecture and Education are clearly below the AAUDE average. Across all ranks and colleges, PSU average salaries lag behind AAUDE average salaries in the majority of categories (55%). In addition, average salaries in the Colleges of Agricultural Sciences (12 month), Business Administration, Education, and Engineering lag behind AAUDE averages in all three ranks. In the Colleges of Arts & Architecture and Science, average salaries lag behind AAUDE averages in two of three ranks. The U.S. News and World Report rankings of graduate programs in Business, Education, and Engineering were used to determine Penn State’s standing within the AAUDE. The rankings of these graduate programs are reported on the U.S. News web site at www.usnews.com. (Two other graduate programs, medicine and law, were ranked by U.S. News but are not being studied here.) In Business, only 9 of the 27 public AAUDE universities had a ranking above Penn State’s. In Education, 12 of the 27 public AAUDE universities ranked above Penn State. And in Engineering, only 6 of the 27 public AAUDE universities ranked above Penn State. In these three colleges, Penn State was ranked academically above the average within the AAUDE but faculty salaries were less than average. The committee fears that the low faculty salaries at Penn State will jeopardize its ability to attract the best faculty and maintain strong programs.
Table 1b tabulates the ratios of assistant professor salaries to full professor salaries and associate professor salaries to full professor salaries in each college. A higher ratio indicates that full professors are not compensated significantly more than those of lower rank—a possible salary compression. Comparison between the PSU ratios and AAUDE ratios can determine if the salary compression is unique to PSU or typical. The ratios for AAUDE and PSU are within five percentage points difference for most colleges. One notable exception is in the College of Science where the faculty ratios at PSU are eight percentage points lower than the AAUDE average indicating a larger than average spread in salaries at PSU.
Table 1c shows the percentage increase in salaries in two, four, and eight years. Since the 90-91 academic year, PSU salaries have fallen behind the AAUDE averages in 16 out of 30 categories, across all colleges and ranks. Significant differences between PSU and AAUDE salary increases occurred for Assistant Professors in Education whose ten year increase is 14 percentage points below the AAUDE average and Full Professors in Liberal Arts whose ten year increase is 15 percentage points above the AAUDE average. Other notable exceptions are the nine percentage points below average increase in salaries of Assistant Professors in Science (which also produces the increased salary spread in Table 1b) and the nine percentage points above average increase in salaries of Associate Professors in Communications.
Table 1d presents a salary comparison for University Libraries. This data is from an Association of Research Libraries survey since AAUDE does not include librarians. Comparison was made with librarians at other Big Ten Universities. The position of "Senior Assistant Librarian" is equivalent to "Assistant Librarian" at Penn State. Therefore the salaries for "Assistant Librarian" at Penn State have been tabulated under the heading of "Senior Assistant Librarian."
Table 2 shows the yearly salary increases for faculty at Penn State and the AAUDE Universities. Administrators, including department heads, are not included in the data. The faculty salary increases are determined using only the salaries of faculty who were employed at Penn State for both academic years being compared. The total salaries paid to this group in the first and second years are used to determine the salary increase. Increase in salary due to promotion is not included in the calculation. Therefore the tabulated values give the average salary increase observed by individual faculty who were not promoted and the data is not distorted by attrition of faculty due to retirement or resignation and the addition of new faculty. All AAUDE data is collected in this same way. The five-year compound increase shows the total salary increase from the 1993-94 academic year to the 1998-99 academic year. It can be noted that Penn State salary increases rank near the bottom (17/23); with its 5 year compound increase roughly 2.5 percentage points below the AAUDE average.
Tables 3, 4, and 5 show comparisons of Penn State average faculty salaries by rank to several groups of institutions. Data in these tables is from the AAUP report and includes librarian salaries but not salaries from the colleges of medicine. In each table, the universities have been ordered from highest to lowest average salary. When comparing average faculty salaries at different universities, the different faculty compositions should be considered. A difference in the relative se of colleges within two universities can produce different average salaries even when a college-by-college salary comparison would show similar average salaries.
Table 3 compares average salaries at University Park to the average salaries at other Big Ten university main campuses. The data suggests that Penn State can expect difficulty in recruiting high-quality assistant and associate professors since average salaries in those two ranks are among the lowest in the Big 10.
Table 4 lists the average faculty salaries at each type of campus location for Big Ten universities having multiple campuses. Eight Big Ten universities (Illinois, Indiana, Michigan, Minnesota, Ohio State, Penn State, Purdue, and Wisconsin) have multiple campuses. The campuses are described as Type I: doctoral-level degrees granted, Type IIA: masters degrees granted (noted as comprehensive in Table 4), Type IIB: general baccalaureate degrees granted, Type III: two year institutions. For this report, the classification of each campus was based on the current plans for that location and may not reflect the current degree offerings. The designation of each campus may also change as the university plan further evolves. For the present report, University Park was Type I; Harrisburg and Great Valley were Type IIA. Type IIB locations included Abington, Altoona, Berks, Erie, Lehigh Valley, and Schuylkill campuses. Type III locations included Beaver, Delaware County, DuBois, Fayette, Hazleton, McKeesport, Mont Alto, New Kensington, Shenango, Wilkes-Barre, Worthington-Scranton, and York campuses.
Table 5 compares average Penn State faculty salaries by rank with other universities in the mid-Atlantic area.
The committee believes that comparisons with faculty salaries averaged across a group of universities for each college (Table 1) do not give an appropriately detailed comparison since the reader may not consider all universities in the group to be "peer institutions." In addition, the cost of living can vary significantly with location nationally and this effect has been lost in the averaging. Comparisons of average faculty salaries across the entire university (Tables 2-5) do not show the variation of salaries by college. In addition, the average salaries across the university will be influenced by the composition of faculty by college. Since the relative size of colleges can be different at other universities, the average salary does not give a representative comparison with Penn State. The committee considered a comparison of faculty salaries within each discipline to those at selected peer institutions to be the ideal way to make comparisons but this being impractical for this Senate Report, the committee promotes benchmarking by college to determine the competitiveness of Penn State. For each college, a list of peer institutions and the average faculty salary by rank at each institution would provide much detail and allow the reader to choose which institutions were most appropriate for comparison. The colleges at University Park and the College of Medicine were contacted to see if such comparisons were made. Ten colleges replied that this type of benchmarking was not done at the college level. Only the College of Engineering and University Libraries presented the committee with a detailed salary study comparing Penn State faculty salaries by rank within their college to those at peer institutions. The University Libraries comparison can be found as Table 1d.
Table 6 gives data from the College of Engineering salary benchmarking. The table is included in this report to demonstrate the type of detailed information that can provide better comparisons. The committee encourages each college to prepare similar benchmark comparisons and release this type of data publicly, including to the Faculty Senate. Average salaries in Engineering by rank were compared with salaries at 16 peer institutions, including the top ten programs nationally as ranked by the U.S. News and World Report, March 1999. The ranking of each university is noted in parentheses behind the school name. This detailed data allows the reader to identify peer institutions with similar cost of living and make a one-to-one comparison of average faculty salaries by rank. The ratio of Penn State salaries to those at each peer institution shows that Penn State Engineering salaries in each rank are lower than at any other institution (except Associate Professors at University of Texas Austin). This is a serious threat to the ability of Penn State to recruit and retain the best faculty. It is interesting to note that the PSU starting salary is higher than the average assistant professor salary. This indicates that there are many assistant professors who are paid less than a new hire. This will result in salary compression and low salary increases for the assistant professor once hired.
The committee has observed serious salary shortcomings as demonstrated in every table of this report. U.S. News and World Report ranks Penn State’s undergraduate program as tenth among public universities in the nation. To maintain this type of national recognition, Penn State must reverse the trend of continual decline in the competitiveness of faculty salaries. If not, Penn State will not be able to attract and retain quality faculty.
SUBCOMMITTEE FOR FACULTY SALARY REPORT
Laura Pauley, Chair
J. Randall Woolridge
SENATE COMMITTEE ON FACULTY BENEFITS
Laura Pauley, Vice-Chair
Allen Phillips, Chair
J. Randall Woolridge
SENATE COMMITTEE ON INTERCOLLEGIATE ATHLETICS
Annual Report of Academic Eligibility and Athletic Scholarships for 1998-99
Each year the Senate Committee on Intercollegiate Athletics is mandated to provide reports of NCAA activities to the Senate, One report usually addresses NCAA eligibility numbers and the other, later in the academic year, offers insights gained from recently passed NCAA legislation. This report focuses on the former and is reasonably self-explanatory. Please note that, as always, a number of athletes are counted twice if their sports overlap two seasons or if they compete in more than one sport. The latest graduation data is also included with comparisons to other Big Ten Universities.
1 . Total Number of Athletes Screened for Eligibility (Fall 98 & Spring 99)
2. Total Number of Athletes Not Approved for Participation (Fall 98 & Spring 99)
3. Total Number of Exceptions to Normal Progress Rule (Fall 98 & Spring 99)
4. Total Number of Scholarship Athletes (Academic year 1998-99)
5. Comparison of Data for Annual Report
Athletes Not Approved
Exceptions to Normal Progress
SENATE COMMITTEE ON INTERCOLLEGIATE ATHLETICS
J. Louis Campbell
SENATE COMMITTEE ON STUDENT LIFE
Incivility in the Classroom
Incivility is widely perceived to be a growing problem in the United States and, although no one can prove this, most parts of the world. Issues of civility and incivility matter in a university setting because, in addition to imparting knowledge or technical skills, higher education purports to set a standard for many aspects of social interaction. Merriam Webster's Collegiate Dictionary (Tenth Edition) defines "incivility" as follows: "1: the quality or state of being uncivil. 2: a rude or discourteous act." The word might better be defined, however, as an act or attitude that the feelings and needs of other people do not matter. Acts of incivility abound in many parts of this University, in residence halls, student unions, offices, perhaps even within the confines of the Faculty Senate, and certainly in classrooms. Those of us who teach may assume that students are the uncivil actors and can cite many instances where we have borne the brunt of such behavior, as no doubt can most of you. Instances abound of instructors who act uncivilly toward students, too, and many of us have sinned. Students are often uncivil to one another in classrooms. We may not be able to prevent or punish such behavior, yet we must try to set them a good example.
Opinions vary as to what classroom behaviors are uncivil. Some instructors and students object to others' eating or drinking in class. It may help to write out one's expectations: don't eat anything that may make it harder for other students to follow the lecture, such as raw celery, potato chips, or hot pizza. Talking to neighbors or conspicuously reading a newspaper during lectures are practices that teachers should discourage. Most of us do not like students who walk out in the middle of a lecture, though it is impossible to know whether the student may have an intestinal spasm, an attack of nausea, or a coughing fit--and is it really civil to ask? Students may also walk in after class has begun, but is it better to wait for them to get seated or even to ask them why they are late? Is it uncivil to single out a student, perhaps to ask her or him a question? Today's rules of classroom civility are written in jello.
Because the classroom is the place where those of us who teach are sure to encounter those who are trying to learn, we should be aware of the environment we are helping to create. Do we state our expectations of considerate behavior, in speech and in writing? Is the classroom one in which uncivil behavior is almost mandatory? Many buildings seem to have been constructed without any care to ensure ventilation or climate control in their large lecture halls. The University Committee on Instructional Facilities seeks information about any classroom conditions that are adverse to the learning process. The Classroom Hotline (Office of Physical Plant), 863-6000, is meant for emergencies that can be quickly remedied, but long-term problems at University Park should be referred to Rebecca Carolus, Staff Support person for the University Committee on Instructional
Facilities. Large classes in stuffy rooms cannot remain civil. Student seating that is not easily accessible is also problematic, and we have lecture halls (112 Kern is a good example), where a student needing to enter or leave is almost bound to disturb others.
The administration has, especially under Graham Spanier, tried to improve the climate for civility. Six criteria, put forward by Ernest Boyer in his definition of an effective campus environment, published in 1990 by the Carnegie Commission for the Advancement of Teaching, lay out a set of goals for a civil community of scholars and students. These are:
1. A college or university is an educationally purposeful community, a place where faculty and students share academic goals and work together to strengthen teaching and learning on campus.
2. A college or university is an open community, a place where freedom of expression is uncompromisingly protected and where civility is powerfully affirmed.
3. A college or university is a just community, a place where the sacredness of the person is honored and where diversity is aggressively pursued.
4. A college or university is a disciplined community, a place where individuals accept their obligations to the group and where well-defined governance procedures guide behavior for the common good.
5. A college or university is a caring community, a place where the well-being of each member is sensitively supported and where service to others is encouraged.
6. A college or university is a celebrative community, one in which the heritage of the institution is remembered and where rituals affirming both tradition and change are widely shared.
The Office of Student Affairs has conducted two Pulse surveys specifically on civility. The first report (published in November 1995) commented on students' willingness to clarify the meaning of "civility" and felt that their own actions and attitudes reflected positive and responsible behaviors, but that "others" in the University community were less likely to act in a positive, responsible, and "civil" manner.
Of the students who agreed to take part in the 1995 Survey, 90% felt that they had "an obligation to treat others at Penn State in a courteous and civil manner, 83% did not feel that they had been unjustly excluded from some opportunities available on campus, and 90% claimed to act in ways that show they respected the rights and dignity of others within the Penn State community. Underclass students saw the Penn State community as more civil and purposeful than upperclass students. Nonwhite students were more likely than white students to feel that Penn State is a caring community where service to others is encouraged and the well-being of each individual is important, yet they were more apt to show respect for the rights and dignity of others. Female students were more likely than male students to state they had protested the use of language that demeans or hurts others and to oppose actions that are mean-spirited or rude. Women were more apt to act in ways to show they respect the rights and dignity of others within Penn State, to agree that Penn State is an educationally purposeful community where faculty and students work together and share academic goals and a caring community where service to others is encouraged and the well-being of each individual is important. They tended to disagree that they had violated some community legal and social standards while at Penn State. More often than their male classmates, they claimed to have protected the rights of others within the community (even those who differ from themselves).
Penn State students stated from direct experience that the faculty was committed to teaching and listen to students, although only one quarter had actually interacted with faculty outside the classroom. Partying mattered more than academics to 3.3%, although students averred that this was the case for 31% of their classmates.
In terms of Boyer's definition of a civil environment, the strongest 1995 student agreement was with the component of a "celebrative community." Only 11.3% found Penn State to fit perfectly the criterion of being "educationally purposeful," although 45.3% found it almost fit. Penn State's greatest perceived shortcoming was as a "disciplined community" (10.8% perfect fit, 35.6% almost perfect fit). Student responses at other campus locations were not compared with those garnered at University Park. Graduate students have not been polled.
How did student perceptions change between the 1995 and 1998 Pulse surveys? Interestingly, undergraduates in 1998 were more likely to rate the University Park environment as fitting Boyer's measures of civility, except that even fewer found it a "disciplined community," where obligations and behaviors are regulated for the good of the group, than three years before! In terms of their own behavior, 21% of the students reported having violated some legal standard while 12% said they failed to abide by an academic or social policy while at Penn State. While 92% felt obliged to treat others in a courteous and civil manner, only 51% said they spoke out to oppose mean-spirited actions. Penn State's rating as a caring community rose, as more than half reported having a sense of belonging. A third had done volunteer service and a quarter felt that their needs were considered when decisions were made at Penn State.
As an "educationally purposeful community," the percentage of students who felt that their instructors were committed to teaching declined from 68% to 62% whereas the percentage believing that their instructors were open to learning from student had risen by about the same percentage. There was a marked increase in affirmative answers to such statements as "participating in ceremonies makes me feel part of PSU," "academic and athletic successes are celebrated in proper balance," "I have attended celebrations honoring PSU students, faculty, staff or alumni," and "I want to know more about PSU history and traditions."
Those students who found the campus climate "supportive" were significantly more likely to feel that the University Park environment fit all of the six Boyer dimensions of civility. Underclass students were more positive than juniors and seniors. Women were significantly more likely than men to feel that campus was "caring," "just," and "disciplined." Minority students were less apt to feel that the campus environment was "just." We should be concerned about this.
What must now be studied is the impact of these attitudes on interaction between students and faculty, outside as well as inside classrooms. There are questions that a scientifically conducted survey of faculty, as well as students at all locations and levels, ought to address:
1. What student behaviors seem most uncivil to faculty, staff, and teaching assistants?
2. Are students less considerate of the needs and feelings of faculty and staff who are perceived as younger or lower in status?
3. Do women experience more uncivil student behavior than their male counterparts?
4. Do large classes engender uncivil behavior to a greater degree than small ones and, if so, can anything be done about the way they are taught or the physical environment of the classrooms?
5. Are there cases of incivility that occur frequently in campuses other than University Park, especially ones where first and second year undergraduates are preponderant?
6. Do faculty, staff, and teaching assistants behave in ways viewed as uncivil by students?
7. What strategies can instructors use to persuade their students that PSU is a learning community?
Faculty, staff, and administrators should join with student leaders in occasional dialogues, at Encampment and elsewhere, about how well PSU is meeting the six Boyer criteria. Civility is not servility, nor is it a set of outworn rules of deportment. It is an essential ingredient in any healthy society. It belongs in our classrooms and all places where teachers and students meet.
SENATE COMMITTEE ON STUDENT LIFE
William W. Asbury
John F. Bardi
Dennis D. Calvin
Wayne R. Curtis
Joanna Floros, Chair
Arthur E. Goldschmidt Jr., Vice-Chair
THE PENNSYLVANIA STATE UNIVERSITY
The University Faculty Senate
University Park, PA 16802
(814) 863-0221 – phone (814) 863-6012 – fax
E-mail address: http://www.psu.edu/ufs/
Date: April 10, 2000
To: Murry R. Nelson, Chair, University Faculty Senate
From: Peter Deines, Chair, Senate Committee on University Planning
Re: Construction Programs Status Report
The attached report by W. J. Anderson, Assistant Vice President of the Physical Plant, summarizes the status of the Department of General Services and Penn State University's major construction programs.
Senators interested in reviewing any particular item should contact the Senate Office for more detailed information.
SENATE COMMITTEE ON UNIVERSITY PLANNING
P. Richard Althouse
William Anderson, Jr.
Anthony Baratta, V-Chair
Peter Deines, Chair
Peter B. Everett
John T. Harwood
Brandon B. Hunt
Ali R. Hurson
Philip A. Klein
Larry J. Kuhns
Jeffrey S. Mayer
B. Tracy Nixon
Winston A. Richards
Dennis C. Scanlon
Derek R. Schuelein
THE PENNSYLVANIA STATE UNIVERSITY
The University Faculty Senate
MINUTES OF SENATE COUNCIL
Tuesday, April 11, 2000 1:30 PM Ballroom C, NLI
J. W. Bagby
L. J. Berkowitz
C. J. Bise
M. E. Broyles
R. A. Erickson
D. S. Gouran
P. C. Jurs
P. A. Klein
M. R. Nelson
P. P. Rebane
R. D. Richards
A. B. Romberger
A. W. Scaroni
C. L. Schengrund
S. R. Smith
B. B. Tormey
G. J. Bugyi
B. S. Hockenberry
V. R. Price
L. A. Carpenter
G. F. De Jong
L. P. Miller
G. B. Spanier
Chair Nelson called the meeting to order at 1:37 PM on Tuesday, April 11, 2000, in Ballroom C of the Nittany Lion Inn. The minutes of the meeting of March 14, 2000 were approved as distributed on a Jurs/Richman motion.
ANNOUNCEMENTS AND REMARKS
Dr. Nelson announced that the Faculty Advisory Committee met on Thursday, April 6 and discussed the following items: Hershey Search Update; The Summer Calendar; Krebbs Commission; Intellectual Property; SCCCTS (South Central Centre County Transportation Study) - the University's Position; President's Input to Senate Council; Academic Eligibility at Behrend; Indirect Cost Recovery and Research Infrastructure Support; South Carolina Confederate Battle Flag Issue; and Sweatshops.
This was to be the last meeting of FAC for the Senate year, however, because of pressing issues an additional meeting for Tuesday, June 6 has been scheduled. By that time, the new members of FAC will be in office. Please contact any member of FAC if you have an item you wish addressed. Election results will be announced at the April 25 Senate meeting regarding the new members of FAC.
The Senate has received several memos from President Spanier accepting reports passed by the Senate. First, from our February 1 meeting: From the Senate Committee on Faculty Affairs, "Proposal to Change the Language in HR-23 Concerning the Relation of Tenure and Promotion in Tenuring Documents." Dr. Spanier has approved this report for implementation and has asked the Assistant Vice President for Human Resources to implement the new language in the policy as proposed, and has asked the Vice Provost for Academic Affairs to revise the Administrative Guidelines for HR-23.
Also from the February 1 Senate meeting, from the Joint Committee on Academic Integrity, "Report on Improving the Academic Integrity Climate." Dr. Spanier has asked the Executive Vice President and Provost to oversee the implementation of the recommendations that emerged in this report.
From the February 29 meeting, Dr. Spanier approved four reports for implementation. They are: from Committees and Rules, "Revision of Standing Rules, Article III, Section 7(d)." He has asked the Executive Secretary to amend the Bylaws and Standing Rules accordingly. From the Joint Committee on Academic Integrity, "Academic Integrity Report." Dr. Spanier is asking the Executive Vice President and Provost to oversee the implementation of the recommendations that emerged from this report. Two reports from Admissions, Records, Scheduling and Student Aid; "Proposed Change to Policy 14-00, Nondegree Students" and "Revision of Policy 51-50: Cumulative Grade Point Average." Dr. Spanier is asking that both these reports be implemented effective fall 2000.
Provost Erickson announced that the new Dean of the Smeal College of Business Administration has been hired. She is Judy Olian formerly of the Smith College of Business Administration of the University of Maryland. We are very excited to have a person of this quality as the new leader of SCBA. He noted that the search for the new Senior Vice President for Health Affairs and Dean of the College of Medicine is now down to the last two candidates of five finalists. It is hoped that the final decision will be made to have confirmation of this appointment at the May Board of Trustees meeting. He also shared that he has charged the search committee of the new Dean of the Berks/Lehigh Valley College. This search is still in a very early stage.
Professor Erickson announced that he has asked for the preliminary plans for the implementation of the new academic integrity policy from the deans by next week. He plans to share those plans among the Deans to examine them for consistency.
Dr. Erickson next turned to the University budget planning and the fact that everyone is working hard in Harrisburg to increase the allocation from the Commonwealth. In the meantime, very strong efforts are being made to increase faculty and staff salaries. With the combination of high needs of the University and low state appropriations, the likelihood of another year of high tuition will again occur.
The Provost noted that he was pleased to see that the Intellectual Property Taskforce report was coming before Council today. He encouraged everyone to get this report before the Senate so the faculty feedback will be a part of that report. This will be one of the most important reports to come before the Senate in the foreseeable future.
Dr. Erickson next spoke to the Emeritus Teaching Fellows program. This program will recognize some of our best emeritus faculty and provide them with a small account (not for salary) to use for teaching materials, research support, travel to conferences, etc.
Dr. Erickson concluded his remarks by stating that he was delighted to see that the report from the Teaching and Learning Consortium (TLC) is coming before the Senate. Under John Brighton's leadership, a very large number of faculty are becoming even better teachers as a result of the efforts of the TLC.
Immediate Past Chair Berkowitz next reported as the Chair of the Senate Council Subcommittee on External Matters. In a recent meeting, the subcommittee was brought up to date on the activities of the Office of Governmental Affairs. A second item was also discussed, which was the planning of how to get the Senate more involved in the activities of this office. He recommended that the subcommittee start its meetings earlier next year.
REPORT OF THE GRADUATE COUNCIL
Philip Klein reported on the Graduate Council meeting of March 15, 2000. A summary of those minutes is attached to these minutes. Dr. Nelson thanked Professor Klein for being the liaison to the Graduate Council this year.
AGENDA ITEMS FOR APRIL 25, 2000
Faculty Affairs, Libraries and Research -- "Interim Report of the Task Force on Intellectual Property and Procedures." Chair Nelson asked Council to consider the time that should be allotted to this session considering its import. He also announced that John Leathers, Chair of the Taskforce, will be at the Senate meeting. Tom Jackson, John Nichols and John Moore addressed Council's questions. It was also decided that the Provost would ask that University counsel be at the Senate meeting also.
Council advised the Chair to limit the discussion to 45 minutes after a 5-minute introduction for this report. It was also suggested that the Senate should focus on Recommendations 3 & 4 (on the Short List). Recommendations 1, 2 and 5 are in many ways being taken care of already. Dr. Nelson will ask that the discussion center on Recommendations 3 & 4 at the Senate meeting. This report was passed on a Jurs/Gouran motion.
In a second motion (Romberger/Tormey), Council voted to move the Advisory and Consultative report on Intellectual Property from the Research Committee to follow directly after the Forensic Session on Intellectual Property.
There were no Legislative reports for the Council to consider.
Research -- "Intellectual Property." Drs. Jackson, Nichols and Moore addressed the report to Council. Dr. Jackson noted that in the opinion of his committee, the Intellectual Property Taskforce was not able to fully meet the charge they were given. They were not able to put into place clear, concise policies for intellectual property for Penn State. Recommendation #6 now asks that the taskforce report be used as the basis for implementation. The Research Committee was not sure how the taskforce report was to be used in the implementation of policies.
Dr. Nichols noted that the Faculty Affairs Committee had trouble trying to digest such a large and complex report in the short time they were asked to review it. They also were not certain what role the Senate would have with the implementation.
Dr. Moore noted that the Libraries Committee adopted the taskforce report and he felt that the concerns of the Research and Faculty Affairs committees are addressed in the new Recommendation #6.
Council made a few editorial changes and suggested that the intent of the report should be made clearer so that the Senate will have a better idea of the thrust of the report. After discussion, a Bagby/Scaroni motion to include this report on the Senate Agenda was passed.
Undergraduate Education – "Toward a More Vibrant Learning Culture at Penn State." Jamie Myers and James Brasseur presented this report for Council and indicated that the report had been edited since it was presented to Council last month. Council asked that a few changes be made and passed it on a Jurs/Gouran motion.
Senate Council -- "Student Computing Initiative." Chair Nelson asked Council to sponsor this report authored by John Harwood, Chair of the Implementation Committee. This report will apprise the Senate of what will be going out to students regarding student computer ownership. After some reformatting asked for by Council, the report was placed on the Agenda with a Jurs/Lukezic motion.
Admissions, Records, Scheduling and Student Aid -- "Report of High School Nondegree Students Enrolled in Credit Courses. With little discussion, a Scaroni/Richman motion was passed to include this report on the April Senate Agenda.
Computing and Information Systems -- "Virtual Reality." Terry Peavler and Sam Slobounov presented the report and stated that they anticipate an Advisory and Consultative report next year as a follow-up to this report. They indicated that in today's computing climate, virtual reality is becoming increasingly relevant within many research and teaching contexts. Council asked several questions before passing a Jurs/Romberger motion.
Faculty Benefits – "Faculty Salaries Report, External Comparison." Allen Philips and Laura Pauley offered the report and indicated that the tables were comparable to what have been used in the past with the exception that a table for librarians has been included. A Broyles/Scaroni motion was passed.
Student Life – "Incivility in the Classroom." Arthur Goldschmidt presented the report. After a short discussion, a Jurs/Richman motion was accepted to put this on the Agenda.
Undergraduate Education -- "Update on the Teaching and Learning Consortium (TLC)." John Brighton addressed Council regarding this report by stating the goals of the TLC and that his presentation would take about 8 or 10 minutes. A Jurs/Lukezic motion was passed to include this report.
Next Chair Nelson asked Council to change the order of the Senate Agenda so that that this report would be listed at the beginning of the Informational reports. A Tormey/Romberger motion was passed to this effect.
University Planning – "Construction Programs Status Report." Dr. Nelson spoke to this report and informed Council that the report has not been submitted to date but since it is an update on construction and since Council has seen the format of the report several times before, he asked that the report be included. A Jurs/Richman motion was accepted without comment.
Chair Nelson asked Council to address the proposal from the College of Medicine (COM) to establish a Department of Emergency Medicine. Alphonse Leure-duPree spoke to the proposal on behalf of the COM. Dr. Leure-duPree informed Council that the Guidelines for the Review of the Establishment, Reorganization, or Discontinuation of Academic Organizational Units were explicitly followed. He noted that the faculty involved in this proposed department had voted unanimously to support this new department as well as the Executive Committee of the college. He continued his comments by stating that several leading teaching hospitals have Departments of Emergency Medicine including three Big Ten institutions. The following Gouran/Scaroni motion was passed:
Next Professor Nelson asked the Council to address the proposal from the College of Communications entitled "Proposal to Change the Organization and Governance of the College of Communications." Robert Richards spoke to Council and indicated that the college has gone from 855 students and 23 faculty to 2,121 undergraduates, 118 graduates and 55 faculty. It is now the largest Communications College in the country. It is the unanimous feeling of both the administration and faculty that it is time, in the maturity of the college, that departments should be formed. Council passed a Richman/Romberger motion as follows:
The last item for Council was the consideration of the Constitution from Penn State Erie-The Behrend College. Senate Secretary Bise stated that Behrend is proposing a minor change in their Constitution within the Committee on Scholarships and Awards. There is a provision that a student must sit on this committee, but there was nothing indicating what would happen if that student was a nominee for an award. The proposal is that if the member student is a nominee, another student may take the seat of the student on the committee while that particular scholarship/award is discussed. Without discussion, a Jurs/Scaroni motion was passed to ratify this proposed change.
Senate Chair Nelson thanked the members of Council for their hard work during the course of the year and adjourned the meeting at 3:37 PM
George J. Bugyi
THE PENNSYLVANIA STATE UNIVERSITY
The University Faculty Senate
University Park, PA 16802
(814) 863-0221 – phone (814) 863-6012 – fax
Date: April 11, 2000
To: Members, Senate Council
From: Philip A. Klein, Senate Council/Graduate Council Liaison
The Graduate Council met on March 15, 2000, and was chaired by Dr. Eva Pell.
ANNOUNCEMENTS AND REMARKS
Dr Pell reported that searches are underway for two associate dean positions in the Graduate School. One is for Associate Dean at Great Valley and the other is to take the position currently held by Dr. Lynne Goodstein as Senior Associate Dean here at University Park.
Dr Pell reported that Dr. Cathy Lyons would be moving to the College of Agricultural Sciences and a search will be underway to replace her.
Dr Pell distributed a draft of the new policy on Academic Integrity. It was developed by the Ad Hoc Committee on Academic Integrity and is designed, among other things, to highlight a University attitude toward academic dishonesty and it will apply to both graduate and undergraduate students. The Provost has charged the colleges to develop guidelines. Plagiarism is the most serious concern.
Dr Yahner reported that the Graduate School is revamping its web site to include announcements of upcoming events.
REPORTS OF STANDING COMMITTEES AND ACTIONS
The Committee on Academic Standards discussed the new report on Academic
Integrity in which it will, of course, be involved. It also received a number of communiques concerning the new policy concerning the simultaneous offering of both 400 and 500 level courses.
The Council approved changes in the advisor and doctoral committee membership proposed by the Committee.
There was a discussion noting that while it was inappropriate to include co-investigators as outside members on doctoral committees, they could still serve. It was agreed that it was essential to be fair to the students and to avoid conflicts of interest.
The Council was reminded that the role of the outside member was in part to represent the Graduate School and general university standards on doctoral committees. The changes were approved.
The Committee on Graduate Research reported on the preparations for the Graduate Exhibit (actually held March 22-23). 220 posters were to be shown, 17 performance options were to be presented, and 5 visual arts displays were to be included.
No other committees had reports.
The Graduate Student Association noted that some concerns had been raised about the new terms of offer of a graduate assistantship. There are difficulties in achieving parity across the system in terms of TA responsibilities.(teaching loads, hours of work, academic tasks, etc.).
The meeting adjourned at 4:44 PM.
THE PENNSYLVANIA STATE UNIVERSITY Date: April 14, 2000 From: George J. Bugyi, Executive Secretary To: All Senators and Committee Personnel Please note the scheduled time and location of your committee. If you
are unable to attend, notify the Senate Office prior to Senate Day -- if
possible. MONDAY, APRIL 24, 2000 Officers' and Chairs' Meeting MONDAY, APRIL 24, 2000 Commonwealth Caucus TUESDAY, APRIL 25, 2000 Intercollegiate Athletics Outreach Activities Student Life Admissions, Records, Scheduling and Student Aid Committees and Rules Curricular Affairs Intra-University Relations Research Undergraduate Education University Planning Faculty Affairs Libraries Computing and Information Systems Faculty Benefits University Faculty Senate The Caucus will meet at 11:00 AM on Tuesday, April 25, 2000,
in Penn State Room of the Nittany Lion Inn. A buffet luncheon
will be served at noon. The Pennsylvania State University The University Faculty Senate Birch Cottage (814) 863-0221 Fax: (814) 863-6012 Date: April 14, 2000 To: Commonwealth Caucus Senators (This includes all elected Senators
from Campuses, Colleges, and Locations Other Than University Park) From: Irwin Richman and Sandy Smith MONDAY, APRIL 24, 2000 -- MEETING CANCELLED TUESDAY, APRIL 25, 2000 -- 11:00 AM -- PENN STATE ROOM, NITTANY LION INN The Caucus will meet at 11:00 AM on Tuesday, April 25, 2000,
in the Penn State Room of the NLI. A buffet luncheon will
be served at noon. The tentative Agenda includes: I. Call to Order II. Announcements and reports from co-chairs of the caucus III. Committee Reports IV. Senate Agenda Items
V. Other Items of Concern VI. Adjournment and Lunch
Date: April 14, 2000
From: George J. Bugyi, Executive Secretary
To: All Senators and Committee Personnel
Please note the scheduled time and location of your committee. If you are unable to attend, notify the Senate Office prior to Senate Day -- if possible.
MONDAY, APRIL 24, 2000
Officers' and Chairs' Meeting
MONDAY, APRIL 24, 2000
TUESDAY, APRIL 25, 2000
Admissions, Records, Scheduling and Student Aid
Committees and Rules
Computing and Information Systems
University Faculty Senate
The Caucus will meet at 11:00 AM on Tuesday, April 25, 2000, in Penn State Room of the Nittany Lion Inn. A buffet luncheon will be served at noon.
The Pennsylvania State University
The University Faculty Senate
Birch Cottage (814) 863-0221
Fax: (814) 863-6012
Date: April 14, 2000
To: Commonwealth Caucus Senators (This includes all elected Senators from
Campuses, Colleges, and Locations Other Than University Park)
From: Irwin Richman and Sandy Smith
MONDAY, APRIL 24, 2000 --
TUESDAY, APRIL 25, 2000 -- 11:00 AM --
PENN STATE ROOM, NITTANY LION INN
The Caucus will meet at 11:00 AM on Tuesday, April 25, 2000, in the Penn State Room of the NLI. A buffet luncheon will be served at noon.
The tentative Agenda includes:
I. Call to Order
II. Announcements and reports from co-chairs of the caucus
III. Committee Reports
IV. Senate Agenda Items
V. Other Items of Concern
VI. Adjournment and Lunch