Proposed: April 28, 2000
MEETING OF MARCH 31, 2000
President George Rupp, the chairman, called the Senate to order shortly after 1:15 pm in 301 Uris. Forty-four of 78 senators were present during the meeting.
Minutes and agenda: The minutes of the meeting of February 25 and the agenda were adopted as proposed.
President's report: The President made the following announcements:
--Columbia Community Service, the University's local United Way program, supporting agencies in a thirty-square-block area around campus, raised $210,000 this year, a record. Law School Dean David Leebron is president of CCS, and Richard Naum and Prof. Don Hood worked hard as co-chairs. A third annual community outreach event, in which 1000 or so Columbia people volunteer for a day, will take place on April 8. This year's co-chairs are Greg Lembry and Tara Gungadar.
--Implementation of the sexual misconduct policy approved by the Senate in February is under way, led by a task force including Patsy Catapano, who chaired the Senate's task force on sexual misconduct; Facilities Vice President Mark Burstein, who is also chairing the Advisory Committee on Campus Security; Robert Juckiewicz , Interim Vice President for Student Services; Margo Amgott, Executive Director of Health and Related Services; Maura Bairley, Director of the Rape Crisis Center, and George Smartt, Director of Security. They are working to make sure the program is in place on time, and also trying to secure Federal funds to help pay for it. Ms. Catapano is also drafting information on the new policies for next year's bulletins and FACETS. Student Services, in particular Health Services, is developing a description of the coordinator position, and overseeing the hiring process and establishment of an office and budget. The three subcommittees called for in the February Senate resolutions--for oversight, education, and inter-campus coordination--have been formed. Their membership, consisting of administrators, faculty, and students, is nearly established, with valuable help from Adrienne Brown, Vice Chair of the Columbia College Student Council, and Jennifer Glaser of the Policy Reform Organization. The three subcommittees include representation of all the graduate and undergraduate schools, as well as Barnard and Teachers College. The next milestone will be the selection of the coordinator.
The President also gave an update on internet issues:
--The Business School made an agreement with Unext.com some months ago to provide content for business courses to be offered over the internet. The investment bank C.S. First Boston has estimated its market capitalization at $2 billion. If this estimate holds up, Columbia's 5 percent stake in the company is worth some $100 million.
--In the past week Columbia has signed an agreement with an organization called Cognitive Arts, which will work in partnership with Arts and Sciences in developing continuing education courses.
--On April 3 Columbia will announce the founding of a new enterprise called Fathom.com, intended to serve as a high-end education and culture internet portal. Columbia's partners will be the London School of Economics, Cambridge University Press, the British Library, New York Public Library and the Smithsonian Institution Museum of Natural History. The initiative, which is important for positioning Columbia on the internet, has required complex negotiations, in which Columbia has insisted on a couple of principles: the University will allow others to license the intellectual property, but will retain control of it, along with an option to withdraw from any agreement that turns out to fall short of Columbia's standards or to jeopardize its reputation.
The President said many negotiations of this kind are under way across the campus. In the last year the General Counsel's office has fashioned 300 contracts related to intellectual property, mostly involving patents but with an increasing number of internet initiatives.
--Columbia has communicated with Versity.com, an entity that hires students to take notes in classes and then posts the notes on the internet. This practice has disturbed a number of Columbia faculty, who have complained that they have no control over notes from their classes that are made available around the world. In a recent meeting on campus, Versity.com agreed not to post notes for any class whose instructor objects. Columbia has also issued a general cease-and-desist order, to take all Columbia courses off the Versity.com website. However, some faculty members think it is helpful to have notes available, and so the administration will attempt to negotiate conditions that allow an exception for those classes.
--The President mentioned several student and faculty awards and achievements:
Six students have won the Paul and Daisy Soros Fellowship, which goes to immigrants or the children of immigrants: Na Eng, Neysun Mahboudi, Zarina Maiwandi, Julissa Reynoso, Jinesh Shah, and Lawrence Wu….The Henry Luce Foundation Scholar is Nicholas Kukrika of SIPA….Five of seven recipients of the Mayor's Award for Excellence in Science and Technology were Columbia people: Profs. Ronald Breslow (Chemistry), Yuan Chang (Pathology), Joseph Traub and George Wolberg (Computer Science), and alumnus Neal deGrasse Tyson. Finally, the President mentioned one of Columbia's most distinguished athletes, swimmer Christina Teuscher, who recently completed her four-year varsity career without losing a single race.
Sen. Frank Lichtenberg (Ten., Bus.) asked whether other universities are engaging in ventures like Fathom.com, and also whether Columbia has legal authority to make Versity.com cease and desist from posting class notes?
The President said Versity.com seems to have decided not to fight Columbia on this point. If they were to resist, the University would have to pursue a cumbersome legal process, including an injunction, with no assurance of ultimate success. The present resolution serves Columbia's interests, while respecting the wishes of a small minority of faculty who favor the posting of class notes.
To Sen. Lichtenberg's other question, the President replied that no other university is as far along in developing a portal like Fathom.com, but Columbia is in conversation with other outstanding universities that may want to join this effort. Even though Columbia is the founding partner, it decided not to include its name in the title of the new initiative, because no single institution can furnish enough content to make the portal fully effective. In Fathom.com, Columbia's partners offer a stunning range of content--much of it already digitized--enough to open an extremely attractive site some months from now.
Sen Richard Bulliet (Ten., A&S) asked if Columbia would lose its $100 million stake in Fathom.com if it exercised its option to withdraw from the agreement. The President said it would not. There will be a procedure for establishing grounds for withdrawal, but the University does have control. In the initial proposal from UNext.com, Columbia would not, in fact, have retained ownership of its own intellectual property. Extended negotiations were needed to reach the final agreement, in which Columbia retains ownership of all content produced by Columbia people, licensing it to UNext.com. This arrangement became the model for agreements that Stanford, Chicago, and the London School of Economics later signed with UNext.com.
The President added that Columbia's equity stake is a separate part of the deal, and the University also has an option to convert its licensing stream into further equity. He explained that UNext.com was extremely interested in procuring high-end content. He added that the internal distribution at Columbia of proceeds from content provided to Unext.com will follow the proportions outlined in the present copyright policy proposal.
Sen. Maxwell Gottesman (Ten., HS) asked if the University planned to make a statement about the case of Yao Chang, the Chinese graduate student who was expelled after traces of a radioactive isotope were found on her pillow in her apartment.
The President said that the asymmetrical confidentiality requirements of Columbia's disciplinary procedures regrettably forbid the administration to comment, while allowing the student to make statements. The case has been appealed and is under review, with no final disposition yet.
Sen. Eugene Litwak (Ten., A&S) said it's customary for the faculty to play a major role in making curricular decisions. He asked what role the faculty has played in developing and approving the courses that Unext.com or other commercial vendors will be offering over the internet. He was concerned about uses of the University's name for commercial purposes without faculty consultation.
The President said Fathom.com has been incubated by Columbia people and is not yet operational. As for Cognitive Arts, the deal has just been signed, so no courses have been produced, but Vice President for Arts and Sciences David Cohen certainly will involve faculty, and the University, through Arts and Sciences, will have control over what goes out with the Columbia name on it, and also has the option of withdrawing the use of the Columbia name. In the case of UNext.com, Business School Dean Meyer Feldberg is working with his faculty to develop course segments in accounting, finance, and other business subjects.
Sen. Lynch said agreements between Columbia and outside vendors to offer Columbia courses over the internet are really the "flip side" of the issue--appropriately addressed in the present copyright proposal--of individual professors making their own deals with commercial vendors that would compete with University's programs, in conflict with its basic mission. He said it might not matter whether the withering away of traditional ways of setting maintaining academic standards resulted from professors' individual deals or the administration's use of a separate, for-profit internet division. If the faculty doesn't have an institutional voice, he said, it may not help to say that a dean or vice president is making sure the course content is a good product. He said he was not qualified to say whether or not the University's internet ventures are appropriate or necessary, but he was concerned about whether the institutionalized faculties have a role to play in deciding which ventures make sense from an intellectual vantage point.
The President said the institutionalized faculty have a fundamental role to play, though not in negotiating individual deals. He said the University's intellectual property is a collective asset. The administration's role is to try to midwife that asset, working with the individual faculty members who embody it and outside entities, some of which are for-profit. He said the creators of that intellectual capital must be centrally involved in producing and shaping the programs made available on the internet, and also in setting academic policy and standards for such ventures. An important goal of negotiations with internet providers is to assure the continuation of this arrangement, and to make sure that no outside entity can control what is purveyed in Columbia's name
Sen. Lynch stressed the need to focus not only on individual faculty members. He said one important reason why it might be a conflict of interest for him to market his own course in criminal law on the internet with an outside commercial vendor is that the collective faculty of at least his division, perhaps of the University as a whole, must have a say in what gets marketed as the Columbia Law School's product. From the point of view of the Law School faculty, the same problem would accompany such a venture if he were to undertake it in partnership with a for-profit Columbia enterprise--he would make some money, the collective would make some money, but the scholarly collective would lose its opportunity to say whether presenting the course in this digital, distance-learning fashion is intellectually responsible. He said this choice should not be made just by individual faculty or by administrators in Low Library.
The President said Sen. Lynch's point was helpful, and suggested that each faculty ought to set up its own processes so that there would be a collegial discussion and approval required to assure that individuals couldn't just freelance, even in conspiracy with some central administrator. He added that the benefits of such a venture, duly approved by a divisional faculty, should accrue not only to the individual and the University but also to the department or school in which the faculty member resides.
Sen. Litwak pointed out that in the deal with UNext.com, the dean of the Business School not only negotiated the financial terms, but also decided what would be taught. Sen. Litwak said he understood that there are plans at Health Sciences to propose a series of lectures on nutrition to be taught by someone hired outside of the University. He asked for a procedure for involving faculty in such negotiations. If the content is closely tied to the financial arrangements, he said, it is not satisfactory for administrators to make the deal and discuss it later with faculty. A clear procedure would enable faculty to approve or disapprove of the substance, as well as any plans to hire outside instructors.
Executive Committee chairman's report: Sen. Paul Duby (Ten., SEAS) said the Executive Committee meeting of March 27 was primarily devoted to the draft copyright policy, particularly the question of Senate procedures for addressing it. There was serious disagreement about the political role assigned to the Senate under the University Statutes, and he would leave it to individual committee members to express their views later. The committee decided that the present meeting would be a discussion-only session, and Sen. Duby looked forwarded to hearing senators' comments on the substance of the policy.
Sen. Duby summarized deliberations to date: the document was put on the web Friday, March 10, just before spring break. There was a town meeting on the March 21, just after spring break, when very few people were ready to start the discussion. Discussion started in earnest with meetings later that week, including a meeting on March 24 between the Senate faculty caucuses and Profs. Jane Ginsburg and Ira Katznelson, the co-chairs of the Intellectual Property Committee. Sen. Duby said people were making more comments now, including colleagues in the Engineering School. With only one week remaining in the comment period, Sen. Duby urged senators, especially faculty, not only to comment, but also to urge colleagues to comment. He said the Executive Committee, at its next meeting on April 21, will decide on the procedure for considering the policy, including the question of how it will be put to the floor.
Sen. Duby reported briefly on the plenary Trustee meeting he attended as a Senate observer on March 4, with Sen. Brian London (Stu., SEAS). Executive Vice Provost Michael Crow made a presentation on the progress of the University in the field of new media and distance learning, clearly an issue of great interest to the Trustees. Sen. Duby said there is a consensus that Columbia should be a leader, not a follower, in that field.
Sen. Duby announced that Senate elections were under way, and urged senators to urge colleagues to run, and also that annual reports were due from Senate committees in advance of the April 21 Executive Committee meeting
--Late changes in committee assignments: At Sen. Duby's request, the Senate unanimously approved the late changes in committee assignments provided at the door.
--Resolution to Join the Workers Rights Consortium While Maintaining Membership in the Fair Labor Association (External Relations): Sen. Litwak, the committee chairman, explained that after the Senate voted last April to endorse the University's decision to join the Fair Labor Association (FLA), the committee took up a student request to consider the Workers Rights Consortium (WRC), a new anti-sweatshop organization founded by United Students Against Sweatshops. After extensive deliberations, including an open meeting on March 3 with a representative from each group, the committee concluded that both groups were legitimate, with people who had done good works, and with different strategies for achieving a common goal--the end of sweatshops. The FLA, which includes apparel manufacturers, uses a monitoring program relying partly on voluntary efforts and self-enforcement. The WRC, by contrast, is skeptical of monitoring programs that they say have done little to change corporate behavior, and relies instead on an ad hoc program of unannounced inspections and publicity. The committee decided that the two strategies were more complementary than contradictory, and learned that neither of the organizations objected to joint membership. One group represented in External Relations, Columbia Students Against Sweatshops (CSAS), wanted the University to leave the FLA and join the WRC, but another group, the Senate student caucus, thought both groups could be useful in the fight against sweatshops. All the members of External Relations--students, faculty, and administrators--supported this solution, with the proviso that the committee will review both organizations within a year. Sen. Litwak invited questions and comments.
Ginger Gentile, a nonsenator member of the External Relations subcommittee on sweatshops and of CSAS, said CSAS believes that the resolution before the Senate offers the best method available now for ending Columbia's involvement in the sweatshops industry, but she stressed that CSAS is not endorsing the FLA in any way, and still has a number of complaints about that organization. At the meeting on March 3 with representatives of the two organizations, she recalled, FLA director Sam Brown said that the corporations in the FLA are the good corporations, who have pledged to end sweatshop abuses. But some of the same corporations brought sweatshops back into existence after a long hiatus, Ms. Gentile said, and they all could terminate sweatshop conditions immediately simply by paying their workers more money. She added that internal monitoring, the main method used by FLA member corporations, has been ineffective in the past. She hoped that the FLA, with continued pressure from the WRC and student groups, will become an effective monitoring mechanism, but said she will believe it when she sees it.
Ms. Gentile then read the names of colleges and universities that have joined the WRC, adding that more are expected to join before the inaugural conference on April 7: Brown, Loyola of New Orleans, Haverford, Bard, Oberlin, Indiana, Wisconsin, Michigan, Smith, Macalester, Loyola of Chicago, Transylvania, New York University, Middlebury, Tulane, San Francisco State, De Paul, Western Michigan, Miami of Ohio, Earlham, Holy Cross, University of Wisconsin--Stevens Point, Minnesota, Georgetown, Northern Illinois, Albion, Cornell, Illinois, Boston College, and St. Mary's. She said there are more institutions in the WRC now than there were in the FLA at its founding. She thanked the Senate and President Rupp for their hard work on the issue, and said the resolution before the Senate represents a satisfying conclusion to a long effort.
Sen. Lynch asked if he was correct in thinking that the administration had no objection to the resolution. The President said he was correct.
The Senate then adopted the resolution unanimously by voice vote.
--Discussion of Columbia University Copyright Policy draft (Provost's Committee on Intellectual Property): Provost Cole explained that the IP Committee's co-chairs, Profs. Ginsburg and Katznelson, could not be present, but two senators who served on the committee, Profs. Richard Bulliet and Frank Lichtenberg, would answer questions.
The Provost summarized the committee's history. Part of the impetus for its creation, in early January, has been the rapid development of new digital media, and their implications for faculty rights and obligations. The committee is broadly representative of faculty and administrative interests throughout the University. A third senator, Prof. Letty Moss-Salentijn, who could not attend the present meeting, is an active member.
The Provost said the policy draft was first posted on the web for general comment on March 10--not because faculty were leaving then for spring break, as previous comments seemed to imply, but because that was as soon as the draft was finished. The comment period is to last approximately one month, ending for individuals on April 7. The Provost said individuals have been commenting on the web, and he urged senators to encourage colleagues to comment this way. In addition, there have been two town meetings, the first on the Morningside campus on March 21, the second at Health Sciences on March 28. The Provost has scheduled a third town meeting, on the Morningside campus on April 4, announcing it in the University Record, and by a mass e-mail to at least all faculty. He also urged students to attend on April 4.
The chairs of the IP Committee had discussed the policy with the Senate faculty caucuses, and at a joint meeting of the 26 Arts and Sciences department chairs with the Executive Committee of the Faculty of Arts and Sciences. Another meeting is scheduled with chairs of clinical departments at Health Sciences; the Provost said he also hopes to meet with the Senate student caucus.
At the end of the comment period, the IP Committee will work on a second draft, which they hope to complete before April 14. The Provost said the comments have been useful. Some call for clarification, while some express substantive disagreements with the policy; the majority have found the policy to be fairly balanced, but needing some clarification. The Provost said the co-chairs and most members of the committee agree with this response. He said the committee members present, along with Associate Vice Provost Raphael Kasper, who is staffing the committee, would listen to comments, offer clarification where they could, and report back to the committee.
The Provost said the committee was fortunate to have, in Jane Ginsburg, one of the nation's most distinguished professors of copyright law, as a co-chair of the committee. She and co-chair Ira Katznelson have worked hard to produce what the Provost called the most balanced copyright policy in the United States.
Sen. Joel Banslaben (Stu., SIPA) said the present policy initiative includes no role for students, either on the drafting committee or on the standing committee envisioned in the draft, even though students are clearly covered by the policy. Sen. Banslaben saw two solutions: add students to the drafting committee, or create a different policy for them.
Sen. Lichtenberg said faculty members were not responsible for the formation of the committee. It started out focusing on faculty-created intellectual property, but soon realized it would have to account for students as well, and tried to do that. He said there is a case for adding students to the committee. He urged students to make their comments as specific as possible.
Provost Cole said the policy primarily affects faculty and the research staff rather than students. The grandfathering section, I A, assuring the continuation of copyright for the creators of books and papers, clearly includes students. Students who might be affected by the new policy would be participants in projects requiring a substantial investment of University resources and usually involving faculty as well.
Sen. Bulliet said, in response to earlier comments by Sens. Lynch and Litwak about Columbia's internet ventures, that the policy draft is meant to address legal issues of copyright, and not Columbia future relationship with the dot.com universe. Sen. Bulliet said that vision will materialize, and there will be opportunities for the Senate and the faculties to express it. He said the notion that the policy was been crafted to enable the administration unilaterally to determine Columbia's future as an intellectual enterprise is a misapprehension that unfortunately has gained currency. He said consideration of the composition of the standing committee might be a way to correct this misconception.
Sen. Frances Pritchett (Ten., A&S) suggested making the Copyright Policy Standing Committee a Senate committee. This would insure that the Senate will pay continuing attention to this issue, and that a representative and hopefully a large body of faculty and other university citizens would be available for this purpose.
Sen. Bulliet said the question of the formation of the standing committee will be addressed at the first session revising the draft on April 4. There have been a number of suggestions on the composition of the standing committee, and there will certainly be a new draft of that provision. The revised draft will also make clear that professors who want to provide a creation of theirs free on the internet are free to do that, whether or not the University wants to commercialize the creation.
Sen. Bulliet said other questions for the committee to address in its second draft are: What is a course? and What is software? Neither term is defined, and both are problematic. The committee has not offered definitions of either word because of some inherent ambiguities, with different meanings for different faculties, and disputes over these terms would probably end up in the standing committee
Sen. London said the first sentence of the policy draft makes clear that the policy applies to students, who should therefore be represented in the drafting and enforcement of the policy. Sen. London's main complaint was that the policy is vague, allowing the University to assert rights to do that it wants. He said the provision that ordinary use of University services and facilities "in most cases" does not constitute a an institutional investment sufficient to entitle the University to copyright in the work leaves too much interpretive leeway to the standing committee. Sen. London expressed particular dissatisfaction with the draft's treatment of software, which requires disclosure of new work, and possibly surrender of the copyright to the University.
Sen. Bulliet said Sen. London was relying on a worst-case reading, which the drafting committee--primarily a committee of faculty who would be subject to the policy--did not share. Such a committee would not try to craft a policy that deliberately gives loopholes to the administration to steal the money of faculty and students, he said. He explained that the phrase "in most cases" was included to account for the wide variety of levels of University resources used in departments ranging from Computer Science to Classics. He said these questions would hinge on the standing committee. He also called attention to section I A of the policy draft, which says that the University does not claim copyright "in dissertations, papers and other scholarly works created by students."
Sen. Lichtenberg said a natural constraint on any attempt to implement the policy in a confiscatory way is the mobility of students and faculty, who can always go elsewhere.
Sen. Pamela Flood (Nonten., HS) raised an issue that she said is particularly important to the Health Sciences community, most of whose research is covered under Section II B of the policy--on third-party funding agreements, or sponsored research. She said the key is the composition of the oversight committee. She thought it is illogical to provide that a dispute between two parties will be adjudicated by a committee composed of one of the parties. Since few people in the University can be expected to be free of bias, it is essential, she said, to structure the committee so as to assure that, regardless of changing circumstances and administrations, copyright issues can be adjudicated fairly.
The Provost said this objection has come up a number of times, and the next draft will provide greater clarity on the composition and structure of the standing committee.
Sen. Bulliet suggested that the Senate, when it takes action on the policy, may want to attach a review provision, to assure that it can revisit the policy later.
Sen. Lynch called attention to a resolution discussed shortly before the meeting by the Senate faculty caucuses (not the Faculty Affairs Committee, as the resolution stated). Copies were distributed. Sen. Lynch said he would be happy to omit the whereas clauses if anyone objected. He read the operative text: "Be it resolved that the Senate serve its mandated and customary function in University governance by following its regular procedures in deliberations on the new copyright policy proposed this spring, including referral to the Faculty Affairs Committee, which will produce a report and resolution for action at the April 28, 2000 Senate meeting." The intent of the resolution, Sen. Lynch explained, it to put the revised document that the IP Committee produces to the Senate for discussion, possible amendments, and a vote. One reason for the resolution is that formal action by a representative body like the Senate makes sure that, whether or not students participated in the preparation of the drafts, they can participate in a vote.
Sen. Lynch said the policy statement is a very important document, attempting to set a future course for relations between the University and individual faculty, as well as administrative employees, students, and other members of the community. He said he was increasingly persuaded not only that the policy sets a good general direction, but that the IP Committee has made an unprecedented effort to solicit and consider comments. At the same time, a policy with a major impact on economic relations between faculty and the University, which self-consciously attempts to be a model for other universities, should receive the institutional endorsement of the Senate.
Sen. Lynch said he had no opinion on the constitutional question of whether the Trustees could adopt the policy without Senate concurrence, or even whether the President could implement such a policy without consulting the Trustees. But regardless of the answer to these questions, he said it would be a mistake to have a policy this important be adopted unilaterally, without Senate concurrence. It would certainly be bad for the Senate and the interests it represents.
Sen. Lynch said he appreciated the desirability of submitting the policy to the Trustees sooner rather than later. He said it would be a mistake to insist on a long delay simply on the grounds that the issue is important. If hard thinking during the next month results in a conclusion that there hasn't been enough time, then the Senate should vote to put the issue over till fall. It is late in the semester, the document is legalistic and complex, and it would certainly be a mistake to expect well thought out responses now, in March. But the April meeting provides an opportunity for people to offer reasoned proposals for more time or for significant changes in the policy. If there are no such proposals by then, Sen. Lynch said, it may be time to vote. The intent of the faculty caucuses' resolution is to assure a formal opportunity for what he hoped would be an enthusiastic Senate endorsement of the IP Committee's second draft.
Howard Jacobson, the Parliamentarian, made two points. He said the Senate by-laws require that a resolution presented on the floor be referred to a committee before it can be voted on. He said he assumed that such a resolution should go to the Executive Committee, which, he understood from the Executive Committee chairman's report, already intended to call for a vote at the April Senate meeting. His second point was that though the University Statutes allow the Senate discretion in addressing a wide range of issues, they only name a few for the Senate to take up. He said the Senate clearly has the authority to consider the copyright proposal under the General Policy section of the Statutes, but it is not required to do so. Mr. Jacobson said he was not addressing the political issue of whether the Senate should consider the policy. But he noted that in the University governance system, many important policies adopted by the Trustees do not come from the Senate.
Sen. Lynch said he assumed that Mr. Jacobson was correct, that the Trustees could adopt the policy without Senate concurrence, though he thought it would be peculiar to adopt a policy affecting so many faculty despite Senate opposition. He said he thought it would be appropriate, if the Senate had a different view of a particular aspect of the policy, for the Trustees to decide between the two versions, though he hoped the Trustees would be influenced by what the Senate thought. But the purpose of the resolution is to make explicit that the policy will be referred to Faculty Affairs and then come back to the Senate. He asked if Mr. Jacobson meant to say that the resolution is moot because the Executive Committee planned to call for a vote anyway.
Mr. Jacobson said he heard Sen. Duby say that the Executive Committee planned to bring the policy back to the Senate for a vote in April. But he was also noting the procedural point that the resolutions brought up on the floor are not ordinarily voted on before referral to committee, unless the Senate decides to override the bylaws by some such measure as unanimous consent.
Mr. Jacobson explained that Faculty Affairs could still offer its own report and resolution in April, to be considered along with a resolution from the Executive Committee.
Sen. Lynch saw two alternatives: unanimous consent to vote on the resolution, or some other kind of agreement that the Senate will act on the policy in April.
Sen. Bulliet said Faculty Affairs was only one of several Senate committees concerned with intellectual property, along with External Relations, Education, Student Affairs, and perhaps others. He suggested that the drafting committee could invite representatives of these Senate committees to a drafting session on April 4, partly so they can experience the drafting process, in which first-rate colleagues devote intense effort to capturing fine shadings of meaning. He expressed unhappiness about the prospect of such efforts being undone on the Senate floor.
The President noted the Parliamentarian's reading that the Senate should not vote on a resolution introduced for the first time from the floor. In response to Sen. Lynch's request for an informal agreement to have Senate action, the President said the Executive Committee needs to take responsibility for finding the best way to bring the copyright policy back in April, making sure that Faculty Affairs, External Relations, and Education are appropriately involved, with the possibility of the overlaps with the drafting committee suggested by Sen. Bulliet. He said the sentiment expressed had been heard.
Sen. Lynch said he was happy with this approach. His interest, he said, is not to get a resolution passed, but to make sure that the Senate, as an institution, has an opportunity to deal with the policy. He appreciated Sen. Bulliet's point, but added that no matter how many representatives go to a drafting session, no one is in a position to deliver the votes of the students or the faculty. Democracy is a messy process, in which senators may dissent from the IP Committee's formulations. He appreciated the committee's hard work, but said the real hard work is convincing people of their reasoning. He hoped senators would take such a presentation seriously.
Provost Cole expressed uncertainty about the meaning of the resolution. Was it that a draft would come before the Senate for a series of votes on amendments, which would then constitute the final draft that would go to the Trustees?
Sen. Lynch said he understood that the Trustees are not bound to consider only one version of a copyright policy. A Senate decision to strike one paragraph of the IP Committee's policy draft would not oblige the Trustees to consider the draft only without that paragraph. On the other hand, he said, it is important that the Trustees know that the Senate opposed that paragraph.
The Provost expressed satisfaction with this answer. The President added that he was happy to assure the Senate that no matter what policy goes to the Trustees in June, the Senate's views on the policy will be made known to the Trustees, and the administration has no interest in suppressing them. But he also repeated the Parliamentarian's interpretation that the Trustees consider many policies that come to them from other sources besides the Senate.
Sen. Lynch said he understood this point, adding that the Senate's views as an institution can only be expressed in actual votes. He hoped that, at the end of the day, the Senate could approve the revised proposal without amendments, a conclusion that would give the Trustees the ultimate confidence that the whole community is behind it.
The President asked for comments about the substance of the draft.
Sen. Gordon Christopher (Stu., SEAS) said students still have reservations about the policy draft and called for adding a student to the IP Committee to take part in preparing the second draft. He said he was troubled by the requirement in Section II C that all employees, including faculty, and students sign a Patent and Copyright Agreement, particularly the idea that 18-year-olds must sign a document they may not understand.
Sen. Bulliet replied that students have been signing the University patent agreement for a number of years, without any serious problems, and he didn't see how the situation would be different with the new copyright policy.
Sen. Lauren Anderson (Stu., CC) asked when she and other undergraduates had signed the patent agreement.
The Provost said students don't all have to sign the patent agreement in advance. Only those who participate in a project, using University resources, that may lead to the filing of a patent are asked to sign. But he said this point may need clarification.
The President called for scheduling a meeting between the student caucus and the co-chairs of the committee as soon as possible.
Sen Rohit Aggarwala (Stu., Bus.) said it did seem that the position of students in the policy draft was jerry-rigged. He said student fears could be allayed by having someone explain exactly what role students play in each aspect of the policy. He also suggested sending a University-wide e-mail about the town meeting on April 4 to all students as well as all faculty. The President said the Provost's office would send that message.
Sen. Litwak noted that requiring students and faculty to sign a copyright agreement is a major addition. The President said this addition is part of the point of the policy.
Sen. Bulliet said the original question was whether anyone signing anything should be informed of the implications of what they're signing. This is a point well taken, he said, but it has not been a particular problem with the patent policy.
Sen. Duby said a difference is that students covered by the patent agreement are usually graduate students working on research projects sponsored by the government or outside agencies. With software, on the other hand, students involved in projects like preparing courses for presentation on the internet are likely to be Engineering School freshmen. A document asking such students to sign away rights presents a problem.
Sen. Bulliet said students who sign the copyright agreement are not so much giving away rights as agreeing to be bound by a policy that mainly protects students' rights.
The President said that, if there were no requirement for students to sign the copyright policy, the University would have the anomaly of requiring a faculty member to abide by the policy who is working with a student not bound by the policy.
Sen. Melanie Breen (Stu., Law) said that whereas faculty coming to the University may know to consider the copyright policy as part of their whole package, a freshman may not understand its implications. She said that students are wary of leaving this matter to administrative explanations, without building some educational process into the policy.
Mr. Kasper received permission to speak. He said the committee did not discuss the issues raised by students now. He said the issue is important, and he will bring it back to the committee.
Sen. John Nicholson (Ten., HS) said his understanding, from the town meeting at Health Sciences, was that anyone at the University--students, faculty, etc.--who works on a project is involved in the patent income to some extent, and the copyright policy will work analogously.
The President said more discussion is clearly needed on the role of students in the policy.
Sen. Herve Varenne (Fac., TC) said the copyright policy will cover many more people at the University than the patents policy. He said students may worry about when they have to notify an administrator that changes they made to a couple of lines of code in a program may have been a copyrightable creation.
The President reminded senators that traditional kinds of copyright, including books, articles, and student papers are all grandfathered in, that is, they still belong exclusively to the creator under the proposed policy.
Sen. Lynch said one helpful idea that the IP Committee is considering is to compile a list of frequently asked questions (FAQs) that would make this legalistic document easier for non-lawyers to understand. The President said that Profs. Ginsburg and Katznelson were already working on a list of FAQs.
Sen. London asked why software is not treated the same way as books, papers, articles, or other copyrightable creations.
Sen. Lichtenberg said that if the policy were to start from scratch, it might make more sense to treat traditional creations on the model of the proposal's treatment of software. But the political implications of that course would be unacceptable, and the committee had sacrificed a bit of intellectual integrity so as not to open up that can of worms.
Sen. London said he was inclined the other way--why not treat software like traditional creations? Sen. Lichtenberg said the committee sees its treatment of software as appropriate, and the idea of grandfathering in traditional creations may be too generous.
Sen. Bulliet said the grandfathering provision actually prevents the student who works as a research assistant for a professor who then writes a book from getting royalties. Under the proposed policy on software students would get a share.
Mr. Kasper noted that Sen. London has availed himself of the opportunity to comment on the policy on the web, and some of his comments are before the committee. One important point, he said, is that the policy asserts the University's right to software only under certain conditions, but the committee may need to clarify this.
Sen. Litwak said he found Sen. Lichtenberg's comments about the grandfathering provision chilling, and said they raise the question of the purpose of the University. The preamble to the policy says that purpose is to allow the free flow of ideas, and the idea that the individual faculty member owns his own intellectual ideas is not an accident of tradition but the very core of the idea of a university. Sen. Litwak said the idea of a collectivity is related to this fundamental principle.
Sen. Litwak asked Sen. Lichtenberg what his point of reference was if he did not see a faculty member's ownership of his own ideas as central to the idea of a university. He suggested that the alternative point of view is made clear in the 1999 report of a task force of the American Association of Universities chaired by Provost Cole. The idea there, Sen. Litwak said, is that the Trustees own the University, the faculty are its employees, and everything they produce belongs to the University. Exceptions are made for articles and books because these are represent customs that would be too politically difficult to change. Sen. Litwak said it is important for people to figure out their concept of the University. Do the Trustees own it, with the faculty as employees, subordinate to the President? Or is the concept the one in the preamble--the University as a collectivity, a cooperative, perhaps a partnership?
Sen. Lichtenberg said the document generally confers copyright on faculty except under certain conditions. It says the University does not assert ownership rights in course content and courseware created, for example, by individual instructors. Professors own the copyright to all of this material, particularly for non-commercial uses.
Sen. Litwak said that the copyright policy has to address serious ambiguities. For example, how does one distinguish between substantial and ordinary University resources, given major changes in technology over time? He said the policy's solution is a procedure for adjudicating disagreements through a standing committee appointed by the Provost, with appeals going to the President, a procedure resting on the assumption that faculty are employees. Sen. Bulliet reminded Sen. Litwak that the paragraph on the standing committee would be revised in the drafting session.
Sen. Litwak agreed with previous comments that the Senate is an institution representing the University community, including students, faculty, and administrators, that could provide a suitable forum for adjudicating copyright disputes. He objected to Sen. Bulliet's characterization of senators as unthinkingly undoing decisions that a group of experts have worked so hard to reach. He said this comment effectively ruled out the legislative process in the Congress or the U.S. Senate, where non-experts also listen to experts and then decide how to vote.
Sen. Bulliet replied that the Rules Committee in the U.S. Congress frequently reports out procedures for voting without amendments, so there are different ways to run deliberative bodies. One notable feature of the policy, he said, apart from the works that are grandfathered, is the concept of socialized and certain benefits for the collectivity, including students. Now, if a professor writes a textbook, no matter how many student assistants he uses, or how many people he has conducting polls, no matter whether his teaching assistant conducts review sessions on the basis of his draft manuscripts, he can publish that book and make a million dollars in royalties and his students get nothing. The idea of distributing benefits to a hierarchy of contributors is a conscionable position to take, Sen. Bulliet said. The idea that the faculty member is omnipotent, owes nothing to anyone, and gets to keep all the cash--that is unconscionable.
The President said that for every book like Paul Samuelson's Economics that generates millions of dollars in royalties, there are hundreds of books for which faculty members basically give away the copyright to an outside commercial interest for minimal royalties. The policy does not argue for changing those arrangements, but it is not clear that faculty are better served by that system than by an explicit sharing of gains in which the institution rather than an outside commercial entity retains ownership, and the provision for dividing the revenue streams is more generous than with any commercial publisher.
As for the ownership of the University, the President agreed that the central asset of the University is its faculty. But as a matter of technical fact and of law, he said, the owners of the University are the Trustees. In fact, he said, some Columbia Trustees might conceivably favor a policy like "work for hire." But the President expressed bafflement that Sen. Litwak could see such an approach in the present copyright draft
Sen. Litwak raised one more issue. He said the discussion had focused on who gets what. He asked the IP Committee to consider whether the regulations it had proposed for the purpose of protecting members of the community might end up serving as barriers to the free flow of ideas. If a student or professor is unsure whether some activity amounts to an extraordinary use of University resources, and whether he should seek permission from a dean or the President before he disseminates the results, then he is facing an impediment, a barrier, to the free flow of ideas.
Sen. Lynch offered a final suggestion to the IP Committee: to provide a context for the debate in April by preparing a discursive description at the outset of both the general principles that the document intends to embody and the philosophical approach that it represents. He said one reason why there have been some problems with the reception of the draft is the difficulty of reading a legal document. The Frequently Asked Questions address specific problems. But there is also a place for an explanation of what the committee set out to do, the choices it made, and its guiding principles. He said the preamble performs this function, but not quite as concretely.
Sen. Roosevelt Montas (Stu., Hum.) suggested that the committee might want to leave students out of the present policy statement on intellectual property, because students have a fundamentally different relationship to the University. He said that faculty concerns, appropriately, are driving the present policy statement. For now, student intellectual property issues are minor, he said, but that situation is likely to change, given the technological transformation under way and the considerable technical literacy that students bring to the University. It might be worth thinking up a new policy altogether for students, Sen. Montas said, in a deliberative process with extensive student input.
The President thanked Sens. Lichtenberg and Bulliet for standing in for the IP Committee's co-chairs, and asked senators to be prepared for a full discussion of the policy at the Senate meeting on April 28.
--Resolution to Establish a Master of Arts in Museum Anthropology (Education): Sen. Varenne, standing in for the chair, Sen. Moss-Salentijn, presented the resolution.
Without discussion, the Senate adopted the resolution unanimously by voice vote.
The President adjourned the meeting shortly after 3:30 pm.
Tom Mathewson, Senate staff