UC Berkeley privatizes its classrooms

Would you believe that taking notes in class could be forbidden for students at UC Berkeley, the crown jewel in the nation’s prteeminent public university system?

But that’s only part of a larger picture, in which the university seeks to capitalize its faculty by measures which strike at the very heart of the concept of academic freedom.

Consider this submission from Cal Professor Ignacio Chapela:

Subject: Copyright in the Classroom
Date: Saturday, December 10, 2011, 2:18 PM

Note: The writing below responds to an ongoing discussion among UC faculty initiated by Amy Kapczynski, Assistant Professor of Law, about newly published policies on note-taking in the classroom at Berkeley. In Kapczynski’s view, the new policy

…purports to give Berkeley faculty the right to forbid students from taking notes in class(!!), and forbids students (without explicit permission from an instructor) from sharing even their own course notes with people outside of the class.

Many responses have ensued. For an example of those opposed to Kapczynski’s position, I have pasted below an email from Bob Meister, President of the Council of University of California’s Faculty Associations (CUCFA) and long-time observer of the university. I also pasted Kapczynski’s initial message below.

***

On the Place of Copyright in the University Classroom
I.H. Chapela. Berkeley, December 2011.

I arrogantly believe that my courses require of my living existence for them in turn to exist. I try to habituate my teaching to the practice of preparing each lecture up to the last second before the proverbial Tempus Academicus, the moment of teaching, more commonly known here as “Berkeley Time”. This practice includes, of course, myself as well as my students, all of us convened in a Class that is unique and never to be repeated again. If there was a discovery happening the previous night (and in my field this is often the case), I believe it should be represented in my 8 am Class; if I am in the process of understanding an aspect of our subject, I feel obliged to share this process every day with the Class.  I wish to believe that this is why young people would ever consider the misery of debt peonage, malnutrition and crowded living, wish to believe that they can see the need to be part of the making of the Life of the Mind as the capstone of their first development as human beings, entering into adulthood. I wish to believe that this dynamic is precisely what makes a University different from a technical training school or a dog obedience programme. I wish to believe that Berkeley, against all odds, continues to be distinguished for its richness in people who can live in such a dynamic academic process.

The obstinate insistence by the administration over the years to introduce a camera into the classroom to record my lectures and to place those lectures on the internet as replacement for our course of teaching becomes, in light of this understanding, as useless as it is preposterous. To imagine that one could record in minute detail what happened in a given day in our Class-room and to pretend to have thus captured the course of teaching shows ignorance of the process that makes the core of what I do in the University.  This is why I have systematically refused such attempts, which are by far not new. I (and, I hope, my students) would find equally preposterous to suppose that anyone could take notes or recordings of our proceedings and offer them as a replacement for the course of teaching that I can offer. To suggest in addition that such dead records could be traded for money beggars belief.

Beyond the important question of whether the teaching in a public university should be considered a public good or a private privilege accessed by pecuniary fiat, the copyright system is as operational in the university classroom as the air-traffic control system is operational in the migratory dynamics of birds. Administrators bent on leading us to even spend time arguing about the subject show a deep commitment to a programme antithetical to the very nature of teaching, particularly at a research institution. By pretending that we are in a crisis of money and “technology” they cajole us into using the only language they seem to know, assuming that we must share their obsessions and commitments. Paulo Freire coined a term apt for the situation, “banking education:”

“This is the “banking” concept of education, in which the scope of action allowed to the students extends only as far as receiving, filing, and storing the deposits. They do, it is true, have the opportunity to become collectors or cataloguers of the things they store. But in the last analysis, it is the people themselves who are filed away through the lack of creativity, transformation, and knowledge in this (at best) misguided system… Knowledge emerges only through invention and re-invention, through the restless, impatient, continuing, hopeful inquiry men pursue in the world, with the world, and with each other.

In the banking concept of education, knowledge is a gift bestowed by those who consider themselves knowledgeable upon those whom they consider to know nothing. Projecting an absolute ignorance onto others… negates education and knowledge as processes of inquiry. The teacher presents himself to his students as their necessary opposite; by considering their ignorance absolute, he justifies his own existence. The students, alienated like the slave in the Hegelian dialectic, accept their ignorance as justifying the teacher’s existence – but unlike the slave, they never discover that they educate the teacher.”

Paulo Freire, Pedagogy of the Oppressed. p 58-59.

2. Teaching is to training as human is to platyhelminth. Disclaimer, in case there is legal doubt: there is no offense in this statement, either real or intended, to women or men or flatworms. Truly, much training is necessary in the development of a human, and specialized training in some fields does command higher salaries later in life for those who obtain it at an early age, thus the temptation to justify the financing of a university for the training it can provide. Training one’s eyes and hands to the specialized motions of careful surgical procedures, rote-learning biochemical pathways, and knowing as second-nature the entrails of computer models of financial derivatives’ behaviour – these are all good examples.

Those of us engaged in training (I teach from time to time, for example, mushroom cultivation for indigenous communities, and there is a significant amount of training needed for this) could be honeyfugled into feeling the urge to fear loss of control in the elements of our training process. I believe, however, that this is again a created fear: apart from a few areas of practice where truly novel training is in the process of development (aquaculture of exotic molluscs comes to mind as an example), the value of a high-paying professional training lies specifically in its tested reliability, which by definition defeats the requirements implied in the concept of copyrighted material: yes, there may be some squabbles to define which should be the received textbook for this or that practice, and the politics behind each edition of the Diagnostic and Statistical Manual for Mental Disorders (currently DSM-IV) will one day make for good suspense novel-writing, but such details should not concern us at Berkeley.

In the all-out battle for student-debt dollars, the idea of copyright in the classroom makes sense only if another concept of “banker educators” is taken for granted: the concept of branding. Lecture notes equals money only to the extent that the specific brand of the lecture (would it offend to say, the lecturer?) can be equated to a promise of higher salaries in the professional world. Our university and our campus in particular have feverishly pursued this idea in the last decade, and the results of the millionaire investment is plain to see in the gold-and-blue uniforming of the campus, the billboards throughout the Bay Area, and even the “power-drinks” and luxury water expensively advertised in Bart stations. I think this is a temporary situation, while advertising technicians are successfully cashing-in on the good name of our campus to cast an ever broader net for debt-dollars to fuel never-ending growth, mostly on managers’ pay and useless concrete-pouring. The net is now extended up to a new “Cal-brand” brand-new campus in Shanghai, where one would hope students may have better credit than our local sort, if the Chancellor’s words are to be believed. But this trend can only be self-defeating, since the value of the brand on technical training can only be maintained through (a) exclusive access to the brand for a limited number of people and/or (b) actual delivery of well-trained professionals.  The pressure to accept the discourse of copyright in the classroom aims (at best) at boosting (a), otherwise it aims at entering into a losing competition with Phoenix “University” and Kaplan. Meanwhile, the dry realities of employers actually able to discern (b) means necessarily that good training will be selected to the detriment of bad, which means discrimination between good and bad trainers and the self-defeated end of the expanding brand: I wish to believe – but I could be proven wrong – that campus-based trainers will continue to outdo those in the periphery of the Cal-brand, if nothing else because of their concurrent, active engagement with research. Copyright is clearly only a subservient appendix to the commodification and privatization trends in professional training, but one that is self-defeating and absurd even in its own terms.

3. It is true that all US international policies can be understood as national politics, just as all internal Berkeley politics can often be understood as national educational policies in the making. As Berkeley goes, so goes the Nation – and as long as this Nation maintains some leadership in educational policies in the world, we can expect our debates to have much larger consequences beyond Gayley Road. It is really from this perspective that I choose not to ignore once again the hyperventilated dictates coming from the administration demanding that we consider copyright matters in the classroom. I shall talk to my students about it.

But I also recognize that others in the wider academic community will suffer or gain from our response to these developments. What is for us an inconvenience may become for many a yoke of mindless commercialization of their intellectual labour, and in this I recognize enormous responsibility. So I join those who oppose and will resist the drive towards encoding in policies and laws the commodification of my life as a teacher and researcher, my work as an intellectual and my relationship with the young people who put their lives in the balance expecting to join me in that “…restless, impatient, continuing, hopeful inquiry men pursue in the world, with the world, and with each other.” I do so knowing the patent risks of dealing with the evanescent values of real education beyond the false safety of thinking them tied to a legal mooring, while the water which keeps them afloat is drained underneath.

And the emails:

From: Amy Kapczynski
Sent at 3:18 PM (GMT-08:00).
Current time there: 12:14 PM.
To: Faculty Budget Forum
Date: Thu, Dec 8, 2011 at 3:18 PM
Subject: FBF: New UC Course Note-taking and Course Materials Policy

The new campus policy on course note-taking and materials should be of interest to many on this list. It’s very troubling, from the perspective of anyone concerned about the privatization of the public university, or about free speech and copyright policy.

http://teaching.berkeley.edu/ownership.html
http://campuspol.chance.berkeley.edu/policies/coursenotes.pdf

It purports to give Berkeley faculty the right to forbid students from taking notes in class(!!), and forbids students (without explicit permission from an instructor) from sharing even their own course notes with people outside of the class.

In my view, it also represents a dangerous inflation of “ownership” rhetoric in the academy, and bases this on very poor legal footing.  For example, the policy quite wrongly tells us that we have copyright in our lectures, when copyright law requires fixation, among other things (so that any extemporaneously given lecture, for example, wouldn’t have a claim to (c) protection).  Campus is also encouraging faculty to download and send form “notice and take down” letters to ostensible infringers, even students.  But the policy makes no mention of the possibility that – even where a prof has (c) in the materials! – that fair use may apply and thus authorize certain acts of copying.  That’s dangerous for many reasons, including the fact that sending unfounded take-down notices can generate legal liability.

To me, this looks like a very overbroad policy made in response to some perhaps justified anxieties raised by sites like coursehero.com.  While those sites may generate a lot of frustration because they make it easy for students to get copies of last year’s quizzes, exercises, etc, it’s not obvious that copyright policy offers the best (or an adequate) response to the challenges of peer-to-peer networks for our modes of teaching.

And in a day and age when we’re asking students to pay more and more for their education, even to invite the idea that they be forbidden from taking and sharing notes seems, in a word, nuts.

Amy Kapczynski

***

From: Bob Meister [mailto:robertmeister8@gmail.com]
Sent: Monday, December 05, 2011 9:25 PM
Subject: RE: [Cucfa-board] FW: Course Note-taking and Course Materials Policy

This seems to be a belated (and welcome) implementation of AB 1773, which was CUCFA’s response to UC’s (and especially UCLA’s) attempt to exploit a gap in copyright law to claim the right to record and re-use class presentations, such as lectures, and to get adjuncts to expressly agree to this as a condition of employment. We hired a Sacramento lawyer to write a White Paper on the subject and got Sen. Romero to sponsor the legislation and carry it over UC’s opposition, thanks largely to the support of CFA and other unions. The late Charlie Nash of DFA (who occupied Joe’s present role) hired the lawyer and handled the legislative work with the help of Myrna Hays (who was then in Eric’s role). Ed Condren (an intellectual property expert on the board of UCLA FA) and I (as President of CUCFA) also played roles in developing the legal arguments and making public presentations.

Charlie later wrote an article about this in the McGeorge Law Review.

The objectionable policies were promulgated to UC around 1999 and the statute reversing them was passed in 2000. UC was supposed to develop policies implementing it, and Stan and Chris N. may recall that I presented something at UCPB years ago that was (I think) adopted by the Academic Council. The reason UC opposed AB 1773 was that it was aimed, not merely at student note-taking services, but also (and in my view primarily) at UC itself as a potential violator.

A lot of the delay in implementation had to do with whether UC had to get faculty agreement (presumably in return for money) to create courseware, etc. out of lectures–and that faculty were to agree. I don’t see much about
this here, despite all the changes that have occurred since 2000 in online posting by campuses and individual instructors. (Can UC allow another instructor to give credit for my course–and charge students tuition for receiving credit– if I voluntarily post my lectures for free?)

At long last, however, UCB has properly informed professors that they can limit (or refuse, except to individual disabled students) the right to record.  We are no told that we can, essentially, set the terms on everything beyond note-taking. This is long overdue–not mainly (in my opinion) because we can sell our courses, but rather because it distinguishes us from employees of a think tank or a  newspaper whose intellectual products belong to the employer. Such a distinction lies at the
heart of academic freedom.
Bob

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