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California State University: "Intellectual Property Rights"
[Also see: Powerpoint: Intellectual Property Rights]
Do teachers have the right to make and sell derivative works or products from the lectures they prepared and taught as part of their teaching duties?
Can an instructor sell access and/or the rights to instructional videos created during classroom instruction in the California State University System?
What does the CSU Collective Bargaining Agreement (CBA) have to say on the matter?
"Thriving as Faculty via Creator/Owner Copyright of Your Lectures and Materials"
- By William Vicars, Ed.D
On December 8th at 4:30pm I met with a California State University Sacramento (now known as "Sacramento State") administrator at the administrator's request. The administrator asked me a lot of questions about my YouTube channel and the creation process of various videos I had posted on YouTube.
The next day the administrator sent me an email asking me to delete the "donate" button from my YouTube channel. I didn't want to (of course) but I decided to go ahead and do so to "avoid" problems. However, just removing my donate button wasn't enough. The "University" actively began engaging in a process known as "chilling."
The actual correspondence is posted below.
The administrator's name has been redacted from the correspondence and replaced with "Name on File" to protect the individual's privacy.
In a message dated 12/10/2015 12:18:43 P.M. Pacific Standard Time, [Name on File] writes:
Thank you for removing the donate button from the Youtube page. The university has asked that donate buttons be removed from any other pages on which the videos are on display.
Also, the university must follow FERPA guidelines, as well as state law, regarding student privacy. Since Sacramento State students are in the videos that are available to the public, the university will need to have their signed waivers on file.
If the students have not signed a waiver, they will need to do so: http://www.csus.edu/sacstatenews/PA/docs/Release_Form.pdf
If you have any questions, please do not hesitate to ask me.
[Name on File]
From: Bill Vicars
Sent: Thursday, December 10, 2015 1:30 PM
To: [Name on File]
Subject: Chilling: Videos / Video Releases
[Name on File],
I'm cognizant of the need for release forms, I have a release form signed by my earliest models. However I will go back and use the official form referenced in your link and will provide them within a reasonable time frame.
I do however have a question and some concerns. I've been looking at: http://www.csus.edu/umanual/acad/umc02750.htm
and at: http://www.calstate.edu/AcadSen/Records/reports/Intellectual_Prop_Final.pdf
For example, in the "Guidance for CSU Policies on Intellectual Property" document, see page 99 of the wherein we read..."A professor has created a set of instructional materials that has the potential to be reused by other instructors who might teach the same course. The materials might be a set of videotaped lectures..." and goes on to state, "...Under the principles in this publication, the professor ordinarily would hold the copyright to the expressions of the substantive content of the course, and the university would not be able to use the materials without permission from the professor. Thus, if the professor retires, resigns, dies, or leaves for any reason, the university's right to continue using the materials would terminate."
On page 100 we read, "The professor may create other works -- such as textbooks, articles, videotapes, CD-ROMs, etc. -- based on the copyrighted materials. The professor may sell them to third parties."
On page 101 we read, "The professor should not be restricted from utilizing the substantive content in future work, which could result if the university claimed full ownership."
On page 13 we read:
"In all cases, matters of ownership of intellectual property -- and subsequent licensing of intellectual property rights, and the allocation of revenues (if any) -- shall be decided in a fair and equitable manner."
So my main question to you and the "university" is how is this request to remove the donate buttons associated with my videos a "fair and equitable resolution"?
I think "critical" to this discussion is the section on page 78 that states:
"To avoid chilling the creative efforts that are essential to the mission of higher education, the new university policies required by the California Education Code must clearly state that the authorizing agent for any such recording is the author(s) or creator(s) of the instructional material in question."
The above is one of the reasons why I bring my own video camera to the classroom. And make my own video recordings -- so that I can be considered "the authorizing agent" of my instructional materials.
I do realize that "the university" can choose to locate various rules and regulations to use "against me" on this but I would point out that doing so would and will have a definite "chilling" effect and would seem contrary to the new guidelines posted at calstate.edu.
In a message dated 12/10/2015 4:23:34 P.M. Pacific Standard Time, [Name on File] writes:
Since you already have signed forms, I can archive those here. I was providing the link only in case you didn't have any -- sorry that I wasn't clear.
So, the issue is not one of intellectual property; the issue is that the videos were taken on campus (the curtain was easily identified as a green sac state curtain); therefore, someone could either affiliate the tape with the University or complain that you used University resources (recording here and using space) to make the videos. In either case, if you solicit money in connection with the tapes, you may be vulnerable. The primary goal is to avoid an issue where anyone can assert that you have used University resources for personal use.
Not having the donate button near the videos is helpful; it is also essential that nothing appears to link the University to your site and that there is no gain directly from the videos which were made on campus. To completely separate yourself in the future, you should consider having a location off campus for recording.
[Name on File]
From: Bill Vicars
Sent: Thursday, December 10, 2015 7:46 PM
To: [Name on File]
Subject: Re: Chilling: Videos / Video Releases
[Name on File],
I think an examination of the Collective Bargaining Agreement will show that I am not vulnerable -- but thank you for your concern.
This type of thing (Intellectual Property Rights and Copyright Ownership) is very clearly covered in the Collective Bargaining Agreement / California Faculty Association (CFA) - Unit 3 in article 39.
"39.3 Faculty bargaining unit employees may use for non-CSU purposes materials created by them without extraordinary University support, if in the past the CSU has never disputed the use of such materials by faculty bargaining unit employees for non-CSU purposes. Such works may include, but shall not necessarily be limited to, lecture notes and materials, course syllabi, instructional text and manuscripts, software, or plans, patterns and works of art or design. Unless there is a separate individual agreement or past practice at a campus to the contrary, faculty bargaining unit employees shall be entitled to grant licenses or make assignments with respect to such materials to publishers and publishing agents, or any other third party."
Thus we see in the Collective Bargaining Agreement that it is perfectly alright for employees to make NORMAL use of NORMAL university resources in the NORMAL course of their employment (which includes teaching according to CBA Article 20) to produce "lecture materials," software, etc. and then use those materials for non-CSU Purposes.
I wanted to make absolutely sure I understood this so I went and read multiple other sources.
Other CSU websites state it in very obvious terms. For example at CSU Monterey Bay's site we read:
"Copyright and Work for Hire: Copyright law defines two types of work for hire:
(1) work prepared by an employee within the scope of his or her employment; and
(2) work that has been specifically ordered or commissioned by contract.
1. Copyright and Work for Hire and Faculty: Article 39 of the CFA/CSU Collective Bargaining Agreement states that works created by bargaining unit employees in the course of normal faculty bargaining unit work (as defined in Article 20 of the CBA) without "extraordinary university support" (see below), shall not constitute "works made for hire", and the faculty creator shall retain sole ownership."
What it comes down to is the phrase "without extraordinary University support."
If a teacher creates something as part of his teaching duties and does so without extraordinary University support" that teacher OWNS the creation and can do with it what he/she wants -- including post it at a website and put a donate button on it.
A green background with NO LOGO nor text in the background is not going to be considered extraordinary. The background was immaterial to the video. I would have preferred a plain white background. Using university space to make a video is no more extraordinary than it is to use a "university office" and "university laptop" to type a book (for publication). I used my own monitor, my own camera. My own tripod. My own storage media. I edited and rendered the video on my own using my own computer that I built with my own two hands. I ran the camera on my own. I did the set up and the take down of all of my own equipment. If this goes to court and "the university" tries to claim that they did something "extraordinary" to contribute to the creation of MY videos -- the University will lose.
One last comment here, you state, (and I quote) "the curtain was easily identified as a green sac state curtain" -- LOL, seriously?!?
Look again more closely: That curtain is BLUE!!! It is the SAME curtain in ALL of the videos -- in various shades of blue depending on the white balance of the camera. So whomever "easily identified" it as a green Sac State curtain would ostensibly seem to be operating from an "attack" agenda (designed to "chill") that is coloring his/her perceptions.
I hope it isn't you. If it was you who made the "green" assessment then I hope it was a simple oversight. In any case, the fact that the curtain is blue (not green) destroys any argument that the background could reasonably be construed as being associated with CSUS in the minds of typical (or even atypical) internet users.
Forgive all my bolding and some use of caps (I honestly think you are a good [person] simply striving to look out for the best interests of both the University and other employees -- thank you) but it is looking more and more like "the university" needs some retraining on this topic.
William G. Vicars, Ed.D.
Associate Professor of American Sign Language
In a message dated 12/11/2015 7:00:27 A.M. Pacific Standard Time, [Name on File] writes:
For context, I simply take the questions/issues as they come to me, and then try to find answers/solutions. I try to be objective and accurate in what I present in terms of both the issue and the solution.
I am not a lawyer, so I have to defer to others who have that particular expertise when issues, such as yours, arise.
Let me find out if your assertions are on solid ground.
[Name on File]
From: Bill Vicars
To: [Name on File]
Subject: Intellectual Property Rights
Date: Fri, Dec 11, 2015 10:10 AM
[Name on File],
For a sample situation, see:
The ground is feeling pretty solid.
** Note to external readers of this thread -- the page and article at the above link was removed by the webmasters of that site.
I tracked it down on Archive.org at the following address and retrieved it on 9/16/2021:
Since the article is important to understanding this thread I'm pasting the article below in case it disappears from the archive:
Faculty Intellectual Property Rights
California Faculty Association (CFA) at Humboldt State University
Our faculty contract safeguards intellectual property rights, and we wish to highlight for you a recent intellectual property grievance at another campus that was resolved favorably for a faculty member.
Intellectual property rights are held by the faculty member unless the intellectual property was created with "extraordinary university support" or there is a separate individual agreement that a faculty member has made with the university. (Article 39 of our contract covers Intellectual Property Rights: http://www.calfac.org/2014-2017-contract)
In the grievance at issue, a commercial firm was interested in licensing intellectual property created by a faculty member. The commercial firm asked for confirmation that the university did not have rights to the intellectual property. Instead, the university claimed ownership, asserting that the faculty member utilized "institutional support" in developing the intellectual property and, thus, it belonged to the university.
CFA assisted the faculty member in filing a grievance and provided representation in meetings with university officials. CFA argued that the intellectual property at issue was developed without "extraordinary" support from the university, the standard set out in the faculty contract. It's not enough for the university to provide support that is merely ordinary; the support must be "extraordinary."
The university declined to agree with CFA's position, but after a brief review process, the university opted to waive any ownership rights to the intellectual property. In short, it appears that the university found a face-saving way of backing out of a case that it likely would have lost, had CFA brought it before an arbitrator.
Key to success in this case was that the faculty member contacted CFA early and met the deadline for filing a grievance. In instances where there is a violation of our Collective Bargaining Agreement, a faculty member may file a grievance "no later than 42 days after the event giving rise to the grievance."
We bring this case to your attention in the event that you find yourself in a similar situation. If we can be of assistance on an intellectual property rights issue (or any other faculty right under our contract), please feel free to contact the campus CFA office at any time at firstname.lastname@example.org or 826-3340.
Online Newsletter: "California Faculty Association (CFA) at Humboldt State University"
Originally on the web at: http://www.calfac.org/post/faculty-intellectual-property-rights-0
Due to the original page having been deleted the above was retrieved on 9/16/2021 from:
In a message dated 12/11/2015 11:37:01 A.M. Pacific Standard Time, [Name on File] writes:
Agreed. Let's close the issue.
[Name on File]
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