March 31, 2021 Feature

Virtual Teaching and Copyright Concerns: An Interview with Aaron Nisenson, AAUP

©2021. Published in Landslide, Vol. 13, No. 4, March/April 2021, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Aaron Nisenson is senior counsel and director of the legal department for the American Association of University Professors (AAUP). He joined the AAUP in January 2013 and speaks and writes extensively on higher education, faculty rights, constitutional, labor, and employment law.

Could you tell us a little bit about the American Association of University Professors?

The AAUP is a nonprofit professional association that has faculty members throughout the U.S. We also have some graduate student members and other professionals at universities. Our membership is open to faculty and others at public and private universities. Our members tend to be in traditional higher education campuses and community colleges. The AAUP is headquartered in Washington, D.C., but we generally operate through local chapters. Members can gather and form a local chapter and then ask for a charter from us, and then they have a local chapter. We also have a national at-large chapter that includes retirees and other faculty who do not have a home chapter. Much of our work is done through local chapters that exist at colleges and universities and centers around helping our members advocate for beneficial rights on their campuses.

What types of issues does the AAUP address on behalf of its faculty membership?

We typically see a couple of different things that faculty are interested in. One is at their particular institution. For example: What are the policies? What are the academic freedom rights? Many of our chapters are collective bargaining chapters, so they might bargain wages and benefits for the faculty. Faculty also often have a more national perspective on academic freedom, faculty advancement, pay for faculty—things like that that might be more nationwide. Local chapters can be involved in both. The national chapter tends to be faculty and retirees who are more interested in the national issues and not as much in the issues on their particular campuses.

We’re also very active in setting standards and policies for the profession, and in some instances, we’ve worked with college and university groups to do that. Our statements on academic freedom and on tenure and governance have been adopted by the AAUP, but also by hundreds of university higher ed organizations. And we have specific guidance that we provide: we have guidance documents that interpret and explain our policies; we also have sample documents, for example, on copyright. We have a lot of papers that we put out to give guidance to faculty members. And then we also give guidance to chapters on particular issues they might be facing on their campuses.

What is your role at the AAUP?

I am the senior counsel and director of the legal department. So I’m the senior in-house lawyer for the AAUP. We also have an outside general counsel who is a faculty member and currently a professor of labor and employment law at Cornell. I do lots of training and lots of guidance, publishing articles, running training seminars, and the like.

Thinking back to before we were in the midst of a global pandemic and this age of working and teaching from home, what were some of the IP-related issues that came up in the AAUP?

As far as the issues that we faced pre-COVID in recent years, one was the massive open online courses (MOOCs). Remember the MOOCs? These were going to revolutionize higher education and learning of all sorts. It turned out to be not much of anything. But there have been various developments in online learning and distance education. The MOOCs are still around in some minor forms. The other big pre-COVID issue was, and still is, the surreptitious recording and publication of faculty lectures, particularly by partisan groups that seek to embarrass faculty members for things that are said in classes.

Some institutions have gone back to in-person learning, while others provide the option to access courses remotely—via livestream or recording. Can you explain the differences between remote and distance learning? How do those differences affect copyright ownership?

Faculty traditionally have copyright ownership over their traditional academic work, which includes things like the syllabus, lectures, and other classroom materials they create. So they typically have ownership of those materials, and there can often be agreements with universities where the university has a license. Sometimes it works the other way, but typically, the faculty own that underlying part of their work.

For example, in a typical classroom, the syllabus is copyrightable and considered copyrighted work owned by the faculty member that can be used by the students in the class. The same applies to the lecture itself. So from our perspective, when the faculty shifted to remote learning, the remote learning did not change those underlying rights to their intellectual property and the copyright over their traditional academic work. It just changed the method of delivery; it did not change their ownership right to the syllabus, to their recordings of the words that they speak in the classroom, etc.

So we view it as traditional work done remotely, just through a medium and mechanism that is remote. That should not in and of itself change the faculty’s copyright or intellectual property rights.

There is a difference, at some institutions, between traditional academic work and online or distance learning. Again, copyright policies are generally institutional—they’re not personal to the individual faculty member. They’re not universal across the U.S. There are institutions that have online or distance learning that tend to be more traditional types of classes, just delivered online. In most of those instances, the faculty would own their copyright, as in a traditional setting.

There can be differences when there is an online class where there’s a heavy use of technology, not just to deliver the class, but to formulate the class and put it together. There might be courses in which you have multiple faculty, for example. Those can be different, and there can be different institutional policies affecting those types of classes.

I think what we try and make clear to faculty is that while moving to remote work you may be teaching online, but you’re continuing to do your traditional academic work. You’re not becoming an online instructor. They should be aware of those differences.

Is there any difference in IP rights if the course is being livestreamed?

There really should not be any difference in that scenario as far as the underlying copyrights. One thing we do tell faculty is that they want to be aware of whether or not the university or the institution is seeking to define their work differently or have different policies apply. For example, if the university were to say all of our online copyright policies now apply to your work from home, that could be viewed as a change in their copyright ownership. Assuming that’s not the case, the livestream would again be another method of delivery and not a change in the underlying rights; it is still traditional academic work owned by the faculty member.

With research and innovation being secretive at times, have you come across any issues or concerns from faculty researchers about using online platforms for collaboration, such as surreptitious recordings?

There really are several issues that are involved in that question. One is a security issue and whether you’re going to have outside third parties bombing the Zoom rooms and the like. That’s mainly a security issue.

There are other issues that we hear about more frequently. For instance, do those platforms get any ownership over the copyrighted material? If you look at the agreements, they do provide those platforms with certain very limited rights but generally don’t transfer copyright ownership. They just allow the platform to be an intermediary and deliver the services. There is no transfer of ownership rights. We’ve heard concerns about the potential for them to take work. Legally, it’s unlikely that they could actually appropriate anything. Also, the platforms have a business interest in not being perceived as stealing faculty work because, one would think, they have an interest in getting more work with the universities and not less.

Another issue involves recordings by individuals who are authorized to have access to the lecture, either in a course or in a research conference or the like. Sometimes universities record the lectures or conferences because they want to be asynchronous. They want students to be able to view the classes at any time (not live). Another reason for recording is disability. Under the Americans with Disabilities Act (ADA), if an individual student has a need for a recording, they can request one as an accommodation. That’s done on an individual basis; it’s not a reason for a university to record all classes. The federal government has been clear that conditions can be placed on those recordings. Faculty can place conditions such as “I retain all my ownership rights, and this recording is not to be distributed, other than solely for the use in this classroom.” So there are those protections against misuse of the university’s recording of lectures, research conferences, etc. We also recommend that universities only maintain copies for as long as needed to deliver the course, to satisfy any ADA requirements, and to deliver the course for asynchronous purposes.

Recordings by students and others who are involved in the courses are a little more difficult to deal with. However, it’s not appropriate for students to record the class. They are not just recording the faculty member—they are recording all the other students and students’ comments. In many instances, it’s not appropriate under the policies of the university. And faculty members have a right to their intellectual property.

For our IP practitioners who are adjuncts, what should they be looking for in the university’s policies to ensure that their lectures are protected?

The first thing to note is that these copyright policies are usually done on an institution-wide basis. Occasionally, there might be a particular school or department that has a different policy, but usually it’s done on an institution-wide basis, not per faculty member. And there might be different provisions that apply to different types of faculty members, such as adjuncts versus full-time faculty.

Faculty members should look at the institution policy first and then advocate for policies that really protect their interests. The AAUP has a lot of material, such as sample policies and explanations of how copyright policies work at institutions, to help guide faculty. But the first thing for faculty to do is to get a policy that is appropriate for their work.

This is a good example of why it’s important to have an AAUP chapter, because rather than having an individual faculty member try to convince the administration to change a policy, you can have a chapter advocate on the faculty’s behalf.

Once the policy is in place, you must ensure it’s enforced. As I mentioned before, something that we always have to keep in mind is whether the institution is making exceptions to it. Are there other attempts to modify the policy or put work in different kinds of buckets? If the institution has one bucket for distance learning versus traditional work, faculty want to be clear that they’re doing traditional work remotely and that it’s not in a different bucket for online or distance learning.

During the COVID pandemic, we have seen more concern with recordings, as I mentioned, with respect to when they are recorded, how long they’re kept, and for what purpose they are used. We have seen faculty chapters, for example, get assurances from the university that recordings will be destroyed after the course is completed, or that recordings will not be used for any purpose other than for the purpose of the particular class, or that they will not be made public, etc.

Because there is uncertainty as to how long we will be in a lecture-from-home situation with the universities, should there be specific requests regarding the retention of labs or courses? Should the retention be looked at semester to semester, or annually?

I think that question is something that faculty really need to work through in their department and with their administration. Keeping in mind that you know they own the content, the questions to ask are: What do the faculty members want to do with the content? How does the content need to be used for the purpose of the particular course? I think those are the real questions. The course content is available online for the one or two semesters that the course is offered, for example, but any continued use of it should be with the consent of the given faculty member, because they own the content.

Of course, one of the big reasons for doing this is to protect the intellectual property of the faculty member. Not just in the sense that they produced it, but also in the sense that knowledge changes and they need to have the ability to change the teaching. This ensures that content is not just reused to the point that faculty are no longer adequately teaching the students and students are not getting old material that has not been updated. Both faculty members and students have an interest in making sure that the material is updated and that faculty have control over the content and it’s not just used ad nauseam.