The University Record, January 10, 2000

James Hilton to assist provost on media rights issues

By Jane R. Elgass

Hilton
Provost Nancy Cantor has announced the appointment of Prof. James L. Hilton as special assistant to the provost for media rights, effective Jan. 1. In his new position, Hilton will be responsible for helping examine, coordinate and develop policy and use as they apply to all forms of intellectual property, from paper textbooks to CD-ROMs to online courses.

Creation of the position was recommended by the Media Rights Task Force, whose report was issued in December.

In considering the recommendations of the task force, Cantor indicated that she was “most concerned with finding someone who could translate the issues, using the expertise and perspective of a faculty member familiar with the academic culture of the University.”

Hilton, who chaired the task force, “very clearly fits the bill,” Cantor said.

“In addition, because of his position as a member of the faculty for the past 15 years, his keen understanding of the needs of this campus, and his first-hand experience with many of these issues as they have come up in his own teaching and research, he is well-positioned to establish the strong lines of communication that will be vital to achieving our goals. I was thrilled to be able to convince him to take on this challenge, and am confident that under his leadership we will make significant progress in this critical area,” Cantor added.

The task force was formed in June 1998 at the request of Cantor; Frederick C. Neidhardt, then-vice president for research; and Elizabeth Barry, associate vice president and deputy general counsel, to:

  • Examine copyright and intellectual property issues as they pertain to the generation, use and ownership of various types of intellectual property.

  • Identify inadequacies in current policies and suggest how to address the inadequacies.

  • Identify areas where additional information resources are needed to provide adequate decision-making assistance for the issues identified above.

    Because of the vast scope of intellectual property, the task force chose to focus on matters of copyright in the context of old (books, for example) and new (such as CD-ROM) media, and related issues such as licensing, ownership and deployment.

    Psychology Prof. James L. Hilton will lead University efforts to examine, coordinate and develop policy and use as they apply to all forms of intellectual property, from paper textbooks to CD-ROMs to online courses. Photo Services file photo by Bob Kalmbach
    The task force found that there is a growing need for advice and decision-making support for questions in these areas. It also discovered considerable variation in interpretation of existing law and policy, and uncertainty about the University’s position related to these areas. The task force noted that, currently, “relevant services and resources are highly distributed with little or no coordination.”

    Hilton says his primary focus will be to continue the work of the task force, “working intensively to make some headway in developing use guidelines and in bringing some coordination to the large number of services related to media rights that exist separately on campus.”

    Hilton, who is an Arthur F. Thurnau Professor, professor of psychology, faculty associate at the Research Center for Group Dynamics and undergraduate chair in the Department of Psychology, became interested in media rights issues when he encountered difficulties in developing a digital library for the Department of Psychology.

    He notes that the task force found that individuals don’t normally think of media rights issues impinging on their life, adding that the “digital age raises a number of economic and intellectual issues.”

    “It is ironic,” he says, “that we have been calling the recent past the ‘information age.’ Information is what universities have always been about, creating and transporting it to students. What we really must now address is how our policies and practices mesh with a world outside the University that is changing dramatically. There, the issue is the commodification of information, with information in its many forms being seen as having or potentially having economic value.

    “It’s becoming a ‘pay-per-view’ world,” he notes, “and this is fundamentally different from how universities operate. Our mission is to create and liberate information. We now have to determine how we are going to navigate this transformation. I think it is terribly exciting.”

    Other recommendations of the task force, which have been endorsed by the Academic Affairs Advisory Committee, call for the University to:

  • Develop an institutional position on “fair use.” “We must decide how much and what kind of risks are worth taking with regard to ‘fair use,’” the report states. “If we take no position, we expose ourselves to someone else’s agenda—an agenda that will likely cut to the very core of the University’s educational and research missions.”

  • Clarify the intellectual property policy, which “is confusing and a source of tension.” The policy currently is contained in Regents’ Bylaw 3.10 and in the Revised Policy on Intellectual Properties, which is administered by the Office of the Vice President for Research.

    “At the very least,” the report states, “the language needs to be simplified and the University community better-informed of its intent and effect.”

  • Create opportunities to inform and educate the University community about copyright use and creation of media. “Intellectual property issues need to be given a high profile,” the report said, suggesting symposia and a first-level link on the Gateway page as a way of spreading the word.

  • Strengthen the intellectual property staff in the Office of the General Counsel. This is under way, with an open position posted for an attorney with expertise in intellectual property issues.

  • Provide funding that will ensure that the above recommendations can be carried out.

    In addition to Hilton, members of the task force were:

    Frank J. Ascione, associate professor, College of Pharmacy and faculty associate, Institute of Gerontology; Carl F. Berger, academic liaison, Office of the Chief Information Officer, and professor of science and technology education; Elaine L. Brock, associate director, Division of Research Development and Administration, and director, Medical School Office of Technology Transfer and Corporate Research; Colin Day, director, University of Michigan Press;

    Michael A. Kope, assistant to the director, Technology Management Office, and intellectual properties counsel, Office of the Vice President and General Counsel; Wendy P. Lougee, associate director for digital library initiatives, University Library; and Katharine B. Soper, assistant provost for academic and faculty affairs.

    Jack M. Bernard, media rights policy analyst, Office of the Vice President and General Counsel, provided staff support.

    Copies of the task force’s report are available on the Web at www.umich.edu/~provost/finalrep.htm.


    The Media Rights Task Force suggested that the following principles should inform actions related to copyright management and intellectual property rights.

  • The academic mission of the institution must drive issues related to copyright use and the creation of new works.

  • Members of the community must be empowered to make informed decisions and find optimal solutions.

  • Communication must be increased among the separate units currently involved in deployment.

  • The University should become a proactive player on the national scene on issues of intellectual property use.

  • The needs and objectives of the entire University community must be considered in the context of an inevitably dynamic postsecondary milieu.


    More questions than answers

    To make the tasks before it manageable, the Media Rights Task Force made a distinction between copyright issues as they apply to use, creation/ownership and deployment defined as noted:

  • Use—concerns and issues that arise when an individual or organization uses someone else’s copyrighted material. For example: Is it acceptable to use a copyrighted article in a course pack? Can faculty members put someone else’s tables and figures on their Web site? How much use is too much use? Can a department make software available to students in a particular course?

    “Currently,” the report states, “the University has no clear and centralized guidelines, rules, policies, practices or services that govern the use of copyrighted materials at the University and/or by members of the University community.”

    It does have, rather, “a patchwork of attempts to address user-related copyright issues. . . . Complicating things further, while members of the General Counsel’s Office have reviewed some of the policies and practices that units have established, most have not been reviewed.

    “Where policies and practices do exist, they are frequently inadequate and often lead to unintended consequences.” These have included such things as the refusal by support staff to copy a job candidate’s materials for use by a search committee and the refusal to copy materials for classroom use.

  • Creation/ownership—concerns and questions that arise when members of the University community create new pieces of copyrightable material. For example: Who owns the Web site associated with a course? Who owns the content of a course—the University or the instructor? Should there be distinctions between textbooks, journal articles, multi-media projects and software?

    The University has a great deal of latitude with respect to creation and ownership of intellectual property, with guidelines provided by Regents’ Bylaw 3.10 and the Revised Policy on Intellectual Properties. Both grant to the University ownership of intellectual property developed by faculty and staff if University resources were used directly or indirectly in its creation.

    A footnote to the intellectual property policy states that the University does not claim ownership or revenue from scholarly works and textbooks. The same footnote, however, explicitly excludes software from this exclusion.

    While Bylaw 3.10 sets policy, complications arise when it is applied to new media, because the intellectual property policy defines exceptions in terms of the final product. “It is not clear how it should be applied to new media,” the report states, “where the final product may take several different forms.”

    In addition, the report notes, “there is a sense among some faculty that current policies have the effect of stifling creativity and innovation in emerging areas of scholarship because they remove many of the incentives that are present in traditional avenues of research and publication.”

  • Deployment—concerns and issues that arise from “the interconnected nature of use, creation and distribution.”

    Suppose, for example, a faculty member creates a CD-ROM for use in class with the assistance of the Office of Instructional Technology. The CD’s popularity has led to requests for use from other institutions. Can the University or the faculty member distribute the CD to those institutions?

    “The answer will depend on what was done from an intellectual property perspective during the creation of the CD-ROM, as well as University policy and practice,” the Task Force report states. “What this example highlights is that intellectual property considerations need to be thought about early in the process.”

    The task force reports that while there are many resources available to assist in the creation of new media materials, “deployment of these materials, once developed, may not be fully maximized. Some units take a sophisticated approach . . . Some, though, are hindered by a lack of understanding of the legal environment relating to such efforts, and others apparently have created valuable materials which have not received (or cannot receive because of the circumstances of their creation) the maximum possible public exposure.”

    The University, the report notes, should support deployment of such works in the classroom, in research, in services offered within and outside the University, in presentations, in the delivery of distance learning and in publication by or outside the University.

    “For new media works to flourish,” the report states, “we need a system that provides guidance and support throughout the creation and distribution phases of development.”

    Copies of the report are available on the Web at www.umich.edu/~provost/finalrep.htm.