DRAFT TENTATIVE AGREEMENT
ON “EDUCATIONAL TECHNOLOGY”
(NEW ARTICLE)
Prepared by the District on April 12, 2004
NOTE: This is a package proposal regarding the Union’s Technology proposal. If accepted by the Union Executive Board, the District management team will recommend the following proposed contract language to the Chancellor and Board of Trustees.
The inclusion in this proposal of language on Distance Education does not reflect District agreement that such issue is properly subject to negotiations. The District’s willingness to include such language in this Article is expressly subject to and conditioned upon achievement of a TA on the language of this entire Article and on the prompt agreement of the PFT Executive Board to recommend this as a TA to the membership as part of an overall package, when negotiations are completed on all issues.
INTELLECTUAL PROPERTY
A. Introduction
The following understandings apply to the ownership of copyrights to works created by faculty members, including courseware developed for distance learning courses. The District shall promptly initiate a committee under the shared governance process to develop a Copyright Ownership Policy applicable to all District personnel, to be incorporated in Peralta Board Policy 3.06. Such Policy shall not be inconsistent with the provisions of this Article. Any disputes regarding copyright ownership issues may be the subject of a grievance under the provisions of Article 19 and to binding arbitration to the extent permissible under law. The provisions herein are to be read in a manner consistent with federal law, and with the other provisions of this CBA as well as District policies, as they may be amended from time to time.
B. Definitions
1. Works mean any material eligible for copyright protection, including (but not limited to literary works, books, articles, dramatic and musical compositions, poetry, instructional materials (e.g., syllabi, lectures, student exercises, multimedia programs, and tests), analysis (e.g., scientific, logical, opinion or criticism), works of art and design, including pictorial, graphic and sculptural works, photographs, films, video and audio recordings, computer based programs and media (e.g., software or computed code of their representation in forms such as CD-ROM, video disk, compressed video, web-based material and the like), original “mask works” (i.e., original images derived from semi-conductor chip products), architectural and engineering drawings and choreography.
2. Works Made For Hire include, consistent with 17 United States Code 101, all works created by a faculty member within the scope of his or her employment. In the case of instructors, the scope of employment includes, but is not limited to, teaching students, developing courses, engaging in shared governance activities, and any specific conditions of employment or assigned institutional duties (as specified, e.g., within a written job description, employment agreement, or Personnel Action Form).
Ordinary Use of District Resources means use of District owned/controlled equipment, personnel, proprietary information, and/or supplies that is of a type and/or level normally allowed to members of the academic community in general and/or faculty members in the employee’s Department or specialty, or as otherwise agreed in advance by the parties. For example, ordinary use encompasses use of library resources, use of personal computers and software provided by the District, software packages generally made available to the community at large and/or to the faculty member for specific use in the normal course of their employment, and reasonable use of common areas or assigned office space. Ordinary use does not include, for example, use of District-paid support staff or services, use of specialized technical equipment, computer facilities, or software packages not generally made available to the community at large and/or to the faculty member for specific use in the normal course of their employment, or more than nominal use of consumable materials/items. This agreement shall take precedence over the terms of the PCCD PC Use Agreement for resolution of copyright issues. The parties shall arrange a mutually agreeable time to meet in order to modify the PCCD Use Agreement to conform to the provisions in this agreement.
C. Copyright Ownership
1. Personal Works: A faculty member shall in all cases retain the right to copyright any work created outside the scope of that faculty member's employment with the District. However, absent a written agreement with the District, if the creation of that work involves more than the ordinary use of District resources then the District shall be entitled to reimbursement for the full cost of such resources from the creating faculty member(s).
2. Commissioned Works, Institutional Efforts, and Works Made For Hire: Unless otherwise specified in a written agreement entered into prior to the commencement of creation, the District shall in all cases retain the right to copyright any work commissioned by the District, any work identified as an institutional effort, and/or any work that is a “work made for hire.”
3. Scholarly/Aesthetic Works: A faculty member shall retain the right to copyright works, including works which would otherwise qualify as works made for hire, that are created (a) as a result of independent (i.e., non-commissioned or ordered) effort (b) for traditional academic purposes. However, absent written agreement to the contrary before commission of the work in question the instructor shall be responsible to compensate the District for all more than normal use of District resources in the creation of such work; moreover, excessive such use may result in appropriate discipline. Such “scholarly/aesthetic works” include, but are not limited to, faculty prepared textbooks, lecture notes, syllabi, journal articles, reviews, course materials such as workbooks, online lessons and projects, presentations, laboratory manuals, literary, musical and artistic works, and periodicals or other serial publications
In all such cases the District shall retain a non-exclusive, non-transferable, royalty free license to use such works for internal instructional, educational and administrative purposes without compensation consistent with Section F below. Moreover, any published scholarly/aesthetic work shall include information noting the author’s affiliation with the District.
4. Works Created During Sabbatical, Re-Training, Or Other Paid Leave: The District shall not obtain any right to copyright any work solely because that work was created by a faculty member during a sabbatical, retraining or other paid leave (including use of banked time), and no work shall be considered to have been created within the scope of employment solely as a result of salary and/or benefits received during such leave. Ownership of any work created during sabbatical, re-training, or other paid leave shall be determined on the same basis as works created during active employment; i.e., the employee shall retain ownership of all works outside the scope of employment and to all scholarly/aesthetic works as described above, but the District shall own any commissioned work, work identified as an institutional effort, or work for hire (other than a scholarly/aesthetic work) created during the sabbatical.
5. Individual Agreements: The District and faculty member may share the right to copyright material if the work is created under circumstances in which the faculty member contributes labor outside the normal course of employment and the District contributes equipment, personnel, resources or supplies, or under other appropriate circumstances. In all cases, the terms of any such shared ownership shall be specified in a written agreement entered into before the commencement of work. At the request of the faculty member, the PFT may be a party to any negotiations between the District and the faculty member. Prior to the signing of any Individual Agreement pursuant to this section, the District shall inform all instructors of their right to be represented by PFT, or by an attorney at the instructor’s expense, and encourage them to speak with their PFT representative or attorney; no faculty member shall in any case be discouraged from electing PFT or attorney representation. The parties shall develop a mutually acceptable form for the District to provide to faculty members seeking copyright under this Article, advising them of their representational rights as specified herein.
D. Copyright Registration
The owner of the copyright is responsible for official registration of copyright. In those cases where there is shared ownership, the District will be responsible for filing for both parties for registration of copyright. Instructions and forms for registering copyright may be found online at <www.copyright.gov/register>.
E. Royalties and Distribution Rights
The ownership of copyright shall determine royalty and distribution rights. Full royalty and distribution rights shall reside with the owner of copyright unless mutual agreement is made to the contrary. Where the District and the faculty member share copyright ownership, all royalties or profits will be first distributed to reimburse the copyright owners for documented expenses outlined in the “Individual Agreements” section above, related to the creation and production of the materials; any remaining royalties or profits will be distributed proportionally to the ownership interests of the parties, as specified in any relevant individual contract. In the absence of such agreement, the remainder of any royalties or other profits shall be distributed 50 percent to the District and 50 percent to the faculty member(s) who share the copyright.
F. District License for Use of Copyrighted Materials
In all cases where a faculty member retains ownership of any work created within the scope of employment, including but not limited to “scholarly/aesthetic works” as defined above, the District shall retain a non-exclusive, non-transferable, royalty free license to copy and use such works for internal instructional, educational and administrative purposes without compensation. In any agreement by a faculty member transferring copyright of such a work to a publisher, the contract shall include provision allowing the District to continue such use. This license shall not, absent mutual agreement, include the right to create derivative works; moreover, upon the request of the copyright owner the District shall agree to cease attributing any such work to that owner.
G. Commercial Redistribution of Instructional Activities
If the District wishes to video tape, broadcast or televise any classroom, laboratory, or other instructional activity, it will first obtain the written permission of the faculty and staff member, except when a student with a verified disability requests taping as an academic accommodation and this accommodation has been determined by the DSPS office or the ADA/504 Coordinator at the college to be appropriate, based on the student's disability. Instructors should contact the DSPS office if there are questions or concerns about tape recording lectures. Unless agreement is reached in advance to the contrary, no audio or video recording of an instructor made for any purpose shall be retained beyond the end of the semester in which made, nor shall any such recording be used by the District for any future instructional purposes.
Before the District enters into any agreement for commercial redistribution of an instructional activity performed by the faculty member as part of their employment with the District, the District will first obtain written permission of the faculty member. Distribution of any profits from such commercial redistribution shall be negotiated by the District and faculty member. Prior to the signing of any individual agreement pursuant to this section, the District shall inform all instructors of their right to be represented by PFT, or by an attorney at the instructor’s expense, and encourage them to speak with their PFT representative or attorney; no faculty member shall in any case be discouraged from electing PFT or attorney representation. As noted in section C.5, the parties shall develop a mutually acceptable form for the District to provide to faculty members seeking copyright under this Article, advising them of their representational rights as specified herein.
In the absence of a mutual written agreement to the contrary, the District will retain all profits from any such commercial redistribution of an instructional activity performed by the faculty member as part of their employment with the District.
Note: Nothing in this article shall be interpreted so as to supercede the rights of students with disabilities to equal educational and programmatic access, as mandated by Sections 504 and 508 of the Rehabilitation Act (1973 and 1998); the Americans with Disabilities Act (1990); Peralta Board Policy 5.24; and Title 5, sections 56000 through 56076.
H. Consideration for adoption as required materials
A faculty member who has created a work or invention shall have the right to have that work or invention considered for adoption as required material for students in a class that that faculty member teaches. If students are required to purchase the work or invention, its adoption shall be through the regular procedures for the adoption of required student materials.
I. Reopener
If either party has cause to believe that the provisions in this Article require revision, the parties shall reopen per the party’s request, on or after January 1, 2005.
DISTANCE EDUCATION
The purpose of this Article is to provide for an environment where the use of technology enhances, and in no way diminishes, the right of the student to a quality academic experience and the responsibility of the faculty and the college to provide that experience. It is intended to be interpreted in a manner consistent with federal law; moreover, unless otherwise specified in this Article other provisions of this Agreement and District Policies, as they may be amended from time to time, governing the development, assignment, size, compensation for, and evaluation of classes offered in as non-distance learning offerings shall also apply in the distance learning context.
Distance Learning means any form of education where students are separated from their instructors by time and/or space.
1. Developing distance education courses requires special skills and should be voluntary. When the District and a faculty member agree that the faculty member will develop a distance education course, that faculty member should be provided with adequate preparation and training, and should be additionally compensated for the extra time required to develop such a course or program. This compensation could be in the form of credit toward load assignment or it can be financial, as appropriate.
2. Prior to the commencement of work creating or developing any online course, the creating/developing faculty member and the District shall enter into a written agreement (the “Development Agreement”) specifying, in detail, the identity of the creating faculty member and of any co-creator(s), the compensation to be paid, the work product to be delivered, the extent and character of any District resources (including technological equipment), facilities, personnel, or training to be provided, and any specific conditions applying to the production and the use of the online course. Prior to the signing of the Development Agreement pursuant to this section, the District shall inform all instructors of their right to be represented by PFT, or by an attorney at the instructor’s expense, and encourage them to speak with their PFT representative or attorney. As noted in section C.5, the parties shall develop a mutually acceptable form for the District to provide to faculty members seeking copyright under this Article, advising them of their representational rights as specified herein. No faculty member shall in any case be discouraged from electing PFT or attorney representation.
a. Copies of such agreement will be provided to the Union. By request of the faculty member, levels of District resources, facilities, personnel and/or training provided may be reviewed at any time.
b. After a Development Agreement is executed and the faculty member is compensated for the production of a distance education course as provided for therein, the course and courseware package shall become the property of the District. However, the faculty member shall own and retain full rights to instructional materials used in the preparation of the courseware package script.
c. Proposals for new distance education courses, including distance education versions of current courses, shall be subject to the same procedures and policies as any other curriculum proposal. The offering and scheduling of distance education courses and the assignment of faculty volunteers shall remain the exclusive prerogative of the District.
d. The faculty member who creates a distance education course, whether a new distance education course or an existing course converted to a distance education course, has (1) the right of first refusal for teaching it; and (2) a two-year commitment, contingent on adequate enrollment, provided that he/she remains in good standing.
The institution will provide adequate technical instructional support services to assure the ability of the instructor and students to send and receive data.
The maximum class size for any asynchronous on-line course shall be 30, any larger class size to be by mutual agreement. The computer will be set for a maximum of 35 students until the first day of classes and thereafter up to 30 students up to and including the last day to add classes. The District may reopen this provision upon notice to the Union.
Evaluation of Faculty Assigned to Teach Distance Learning Courses shall recognize the special circumstances of teaching such a class.
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