New Information Technologies and Intellectual Properties

General Principles

The University’s central mission-creating and disseminating knowledge-has remained unchanged over its first century and is most unlikely to change over the course of the next. To preserve its core mission, however, the University must respond to the changes in information technology that might alter the landscape of higher education. At the same time, changes in information technology are so rapid that we can address only some of the relevant principles. We must frankly recognize the need for ongoing review. Nevertheless, there is a set of basic principles that we can adopt. We discuss them in this report, but the essentials can be set out simply:

• Neither new information technologies nor rules and procedures designed to accommodate them should interfere in any way with the ability of faculty members to pursue their research and freely present their ideas to their colleagues, their students, and the world at large.
• Faculty currently enjoy royalties on their texts, whether disseminated in print or electronically. This should not change. As a general matter, however, the University should own the intellectual property created under its auspices or with its resources. The University should not assert this interest in the case of a faculty member’s noncommercial use of new information technologies or in the case of the commercial use of such technologies until the revenues generated are substantial.
• The University has an interest in how its name is used. Individual faculty cannot alone decide whether a program should be sponsored by the University. Hence, they must be vigilant when using new information technology as elsewhere to ensure that they do not engage in activities that give the appearance of being sponsored by the University.
• 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. The disclosure should be less formal than that involved for discoveries and inventions, but it should also come much sooner. Only with such disclosure can the University have a good sense of how new information technologies are being used and how the administration can fulfill its obligation to support such work.

Overview

The history of the modern university over the last 9 centuries has rested on the central premise that scholars and students must be brought together and work in the same place. The University of Chicago epitomizes this tradition. The central place for learning at the University has always been in the classroom and in live exchanges between and among students and faculty in seminars, workshops, offices, and everywhere else on the Quadrangles. Notwithstanding all the extraordinary developments in technology that have taken place and that are likely to take place in the coming years, none of this is likely to change. Nevertheless, the University has long recognized that in fulfilling its core mission of disseminating knowledge, it must go beyond what happens within the physical confines of the Quadrangles.

In the University’s earliest years, the Press was an important way in which the work of the faculty would reach the world at large. Today, faculty publish at the Press and elsewhere. They give lectures and attend conferences all over the world. Similarly, they edit journals and write articles and monographs and prepare course materials. In its first few decades, many of the degrees the University awarded were to students who had done the lion’s share of their work off-campus. Today the University’s general education program reaches many outside the Quadrangles. The University offers an M.B.A. to students in Barcelona and a masters program in the humanities in Tokyo.

New information technology, however, may expand the University’s reach dramatically over the next decade. New technology has already begun to change life at the University. We disseminate information to its students, as well as to the outside world, on the Internet. Students communicate with each other and with faculty on electronic mail. Discussion groups and chat rooms in cyberspace now supplement exchanges that before took place only after class. Faculty increasingly have a chance to convey their ideas in different media. It is already possible to disseminate lectures with videotapes and on CD-ROMs. At least one faculty member has offered a course over the Internet. We can anticipate that within several years, whether it is through a lecture on videotape or materials designed to be accessed with a computer, we shall take increasing advantage of these new possibilities.

The University must encourage and support faculty who take advantage of new information technologies. It must recognize that disseminating knowledge through new technologies is consistent with our core mission. Much of the important work at the University has been collaborations among faculty. We can anticipate that such collaborations, both within and across departments, divisions and schools, will increase with new technologies. Similarly, new information technologies will provide faculty opportunities to collaborate with scholars at other institutions and the University opportunities to collaborate with other institutions and other organizations, both for-profit and not-for-profit. We need to see that these new possibilities are developed in a way that positively supports, rather than compromises our central mission.

It is not possible to identify with precision the costs of taking advantage of new information technologies, nor all the benefits. As with any other experiment, we should expect failures as well as successes. Especially when the work involves collaborations with others outside the University, individual faculty cannot muster the necessary resources on their own nor are able to resolve any number of other issues that arise. New technologies may bring financial benefits as well. In the face of these uncertainties, we can set out several basic principles.

Ownership of Intellectual Property

By long-established practice, individual faculty members enjoy the royalties on any book that they write, as well as honoraria from the papers they present at conferences and the endowed lectures they give at other universities. They enjoy these royalties whether their texts are disseminated in print or in electronic media. A small number of faculty have written standard texts and other works that earn substantial royalties. For most, however, the royalty and honoraria income is small and in many cases does not cover even out-of-pocket costs. Outside a handful of faculty, royalty income from texts, whether print or electronic, does not cross the threshold where it would be appropriate for the University to assert ownership rights, even if it had them. In our view, this allocation of ownership is not the benchmark we should use in thinking about intellectual property and new information technologies. More appropriate is a return to first principles.

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, and otherwise-that the University provides. When, for example, a program in a professional school generates substantial revenue, the program must be seen as a product of the University as a whole. Individual faculty members as well as the School itself are part of a larger enterprise, and this must be recognized along financial as well as other dimensions.

For this reason, we recommend that the University formally implement the principle that the University owns the intellectual property the faculty create at the University or with substantial aid of its facilities or its financial support. As in the case of inventions and discoveries, faculty members who exploit new technology for commercial gain should disclose their work to their dean (or to their chair who in turn passes it on to the dean). It is too soon to set down fixed rules and formalities. Disclosure, however, should take place as early as possible. As with any other kind of teaching or research, the principal obligation remaining belongs to the chair or dean-the obligation to ensure that all members of the faculty can do their best work.

In many cases, income generated from use of new information technologies in teaching and research may be small. Asserting ownership in such cases may discourage innovation without bringing significant revenue to the University. For this reason, we also recommend that individual faculty enjoy the revenue generated until it is substantial. As the University has recognized in the case of patents, individual faculty members are entitled to share in the revenues from the intellectual property they have a hand in creating. The share may vary from case to case, depending on the contribution of the faculty member as well as the costs incurred by the university and others. As a starting place, divisions of revenue should follow those already in place for patents and discoveries. Disputes about ownership should be resolved by the same faculty committee that resolves other disputes about intellectual property.

Whenever faculty do work outside the University, we must confront issues governing both conflict of interest and conflict of commitment. The emergence of new technology may enable faculty members to take on outside opportunities that previously would have been unavailable. This ability to do more consulting and other work is likely to lead to more issues arising under the University’s existing policies, especially with respect to conflicts of commitment. We do not recommend any changes in existing policies, but we would urge faculty as well as administrators to become more sensitive to the policies that are in place and the ways in which issues can arise under them.

Scholars must be able to control their own intellectual agendas and the way their work is presented to the rest of the world. When we do joint work now, issues are typically settled before publication. Most of the remaining ones arise only when time comes for a new edition. Work done with new technology, however, never ceases being a work in progress. How the work evolves and who controls its evolution are issues that will be questions constantly before us. Care must be taken at the outset to confront questions of control to ensure that we retain the kind of control of our ideas that is necessary to the academic enterprise.

New information technologies provide a means by which we can teach outside the confines of the Quads. We can anticipate that in many cases the University, Division, School, or Department will appear to users as a source or a sponsor or co-sponsor of the work. (In other words, users will perceive the work as being a product of the University, Division, School, or Department, not merely the institution with which the faculty member is affiliated.) Whenever the University, Division, School, or Department appears as a sponsor or producer of work, larger interests are implicated.

In some cases, notice to the department chair or dean may be sufficient. In other cases, the project may be akin to a course of instruction. A course of instruction using new technologies, like any other, requires the approval of the faculty of a Division or School, according to the procedures that it has adopted.

The University may follow other universities and implement a general policy about the use of its name by faculty and others that would apply to new technology as well as to other things. It may also be possible to articulate special guidelines for new technologies in the future. In the interim, however, each faculty member should follow established practice and should be aware of the need to disclose given that issues of sponsorship and conflicts of commitment can arise in new and subtle ways in this conduct. Faculty and administrators at the University must be vigilant to protect both the intellectual independence of individual faculty members and to recognize the collective responsibility of the faculty to chart its own intellectual course.

Degrees and Certification

New information technologies are likely to allow us to offer instruction to students who are not in residence. In some cases, students may take the instruction solely for personal enrichment. In others, it will be appropriate to recognize the competence the student has acquired as a result of this instruction. In these cases, a Division or School should be able to award a certificate to the students who have completed a course of instruction and who have demonstrated a mastery of it. When schools or divisions develop such programs, deans bring them to the attention of the Provost, as they would any other significant change in their schools or divisions. The Provost in turn reviews the proposal. Each certificate program must be consistent with the values and principles of the University. When such a program substantially affects the general interest of the University, the Provost must, of course, bring them to the Council of the University Senate.

New information technology may also enable us to offer programs of instruction that merit the awarding of a degree from the University of Chicago. The procedures we use to establish the awarding of degrees through distance learning should be the same as for the creation of any other degree program. It must meet the highest standards of intellectual rigor and enjoy the support of both the faculty of the School or Division and the Council.

Continuing Review

Because both technologies and the social matrix in which they are embedded, used, and impact our other practices are currently changing rapidly, we recommend that a committee be appointed. Its charge should be twofold. First, it should review and evaluate the information the University gathers about the use of new technology and intellectual property. Second, and more important, it should make specific recommendations about the steps the central administration should take support the work of the faculty. This committee should report periodically, as they judge it to be appropriate, but it should issue its first report no later than July 1, 2000.

Members of the Committee:

• Chair, Douglas G. Baird, Harry A. Bigelow Distinguished Service Professor of Law
• Samuel Hellman, A.N. Pritzker Distinguished Service Professor, Department of Radiation & Cellular Oncology
• Gregory A. Jackson, Associate Provost for Information Technology
• Raghuram G. Rajan, Joseph L. Gidwitz Professor, Graduate School of Business
• Daniel Shannon, Dean, Graham School of General Studies
• Martha Ward, Associate Professor, Department of Art History
• William Wimsatt, Professor, Department of Philosophy
• Robert J. Zimmer, Deputy Provost for Research, Max Mason Distinguished Service Professor, Department of Mathematics

Approved by the Council of the University Senate on April 27, 1999.