U-M Office of the Provost: Final Report of the Media Rights Task Force

University of Michigan Office of the Provost and Executive Vice President for Academic Affairs

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Media Rights

Final Report of the Media Rights Task Force

Executive Summary

Throughout the history of higher education, intellectual property—that is, ideas and knowledge in a tangible form—has been the lifeblood of colleges and universities. Although the media have changed (today's works are likely to include CD-ROMs, computer-aided design schematics, Web sites, and digitally delivered video), intellectual property remains at the core of the University and of our mission to create, explore, and disseminate knowledge; to educate students; and to serve society. However, these new technologies, while they offer tremendous potential and opportunities, also present risks to the academic community and to our ability to fulfill our mission. The pressures and onus on the University to frame media rights issues and to answer media rights questions are increasing exponentially. The choices we do not make today will limit us—or may be taken from us—tomorrow.

The scope of intellectual property is vast. This Task Force therefore chose to focus its efforts specifically on matters of copyright and related issues, in the context of both old and new media. In thinking about these issues, the academic community must recognize that its members represent three different perspectives with competing needs: the perspectives of the user, the creator/owner, and the deployer of intellectual property. The use perspective highlights the concerns and issues that arise when a person or organization uses someone else's copyrighted material, for example, when a professor puts someone else's material on his or her Web site. The creation/ownership perspective highlights the concerns and questions that arise when members of the University community create new pieces of copyrightable material. For example, who owns the content of a course created by an instructor, and does the answer change if the content is moved to a distributable, electronic format? The perspective of deployment highlights the interconnected nature of use, creation, and distribution. If a professor designs a multi-media CD-ROM for use in his or her class, then later would like to make it available to colleagues at other institutions, can he or she distribute it beyond the Michigan classroom? (The answer to this question will depend on decisions that were made at the time the CD-ROM was developed, making it essential to provide clear, accessible, and timely guidance to the faculty member.)

An analysis of the campus landscape reflects several prevailing themes. First, at all levels (i.e., use, creation, and deployment), there is a growing need for advice and decision-making support for copyright and intellectual property questions. Second, there is considerable variability in interpretation of existing law and policy and uncertainty of the University's position related to these areas. Finally, relevant services and resources are highly distributed with little or no coordination. The lack of information, advice, and assistance limits the flexibility and creativity that faculty (and others in the community) exercise in the use and creation of materials.

As we think about steps we can take to address these concerns, the following principles need to inform our actions:

the academic mission of the institution needs to drive issues related to copyright use and the creation of new works
members of the community must be empowered to make informed decisions and find optimal solutions
communications must be increased between the separate units currently involved in deployment
the University should become a proactive player on the national scene on issues of intellectual property use
the needs and objectives of the entire University community must be considered in the context of an inevitably dynamic postsecondary milieu

The committee proposes six recommendations that it believes would enable implementation of the above principles:

Create the position of a Coordinator of Media Rights Management. This person should be charged broadly with centralizing and coordinating policy and use as they apply to all forms of media. To be effective, the position must be of a high enough level to attract scholars who will be respected by the faculty and who will come with demonstrated leadership skills and an ability to understand and articulate complex issues to the faculty. The Coordinator of Media Rights Management should be endowed with the administrative authority, legal expertise, staff, and resources that will enable him or her to accomplish the following mandates:
- oversee the centralization and rationalization of existing policies and procedures to make them more consistent, appropriate, and efficient
- articulate philosophies of use and production educate the University community
- be a problem-solver
- facilitate collaboration between units
- create an identifiable copyright and media rights management resource
- provide a well-documented University interpretation of intellectual property policies
- coordinate existing services
In the service of accomplishing these mandates, the Coordinator of Media Rights Management should have designated effort from the Technology Management Office, the Office of the General Counsel, the Library, the Office of the Chief Information Officer, the University Press, and the Media Union. Because the functions of the Coordinator of Media Rights Management span the University and do not fall exclusively in any single domain, and because it is critical that the Coordinator be seen as having University authority rather than the authority of a particular school, division, or unit, the Coordinator of Media Rights Management should report to the Provost. An advisory group should be formed to provide advice to this person on matters of policy and use, at least initially and perhaps in perpetuity.

Arrive at an institutional position on "fair use." We must decide how much and what kind of risks are worth taking with regard to "fair use." If we take no position, we expose ourselves to someone else's agenda—an agenda that will likely cut to the very core of the University's educational and research missions.
Clarify intellectual property policy. The current policy (Regents' Bylaw 3.10 and the Revised Policy on Intellectual Properties) is confusing and a source of tension. At the very least, the language needs to be simplified and the University community better-informed of its intent and effect. A more ambitious strategy would be to revise the policy to make it focus more on the processes involved in the creation of intellectual property than on the form of the creation.
Create educational opportunities around issues of copyright use and media creation. Intellectual property issues need to be given a high profile that could include symposia and a first-level link from the U-M Gateway to a copyright/intellectual property Web site.
Strengthen the intellectual property counsel in the Office of the General Counsel. This important step is occurring.
Provide adequate funding. The issues raised by the emergence of new media are of central importance to the health of the University and may well require additional funding.

Report

Background

Throughout the history of higher education, ideas and knowledge in a tangible form—the book, the article, the portrait, the arrangement, the phonographic record, the sculpture—have been the lifeblood of colleges and universities. In today's vernacular, we call these works "intellectual property." And, although the media have changed (today's works are likely to include CD-ROMs, computer-aided design schematics, Web sites, and digitally delivered video), intellectual property remains at the core of the University. Since 1817, we have been charged with the creation, exploration, and dissemination of knowledge; the education of students; and service to society.

Although our mission has not changed, new technology has given rise to more and easier ways to create, use, disseminate, and acquire copyrightable works. These improvements are often a tremendous benefit to the University and its mission. However, they also have given rise to a burgeoning economic incentive to control and own copyrightable works as well as to an increased scrutiny of and access to University activities. In our zeal to improve our scholarship and teaching, we cannot overlook our responsibility to proceed thoughtfully and with diligence.

Charge

In June of 1998, a new Media Rights Task Force was formed at the request of Nancy Cantor, Provost and Executive Vice President for Academic Affairs, Frederick C. Neidhardt, Vice President for Research, and Elizabeth Barry, Interim Co-General Counsel. We, the Task Force, were charged with:

mapping and clarifying existing copyright and intellectual property issues as they pertain to the generation, use, and ownership of various types of intellectual property;
identifying areas where current policies are inadequate and suggesting ways these inadequacies should be addressed; and
identifying areas where additional information resources are needed to provide adequate decision-making assistance regarding the generation, use, and ownership of intellectual property.

The scope of intellectual property is vast. In an effort to focus on the issues that brought about this incarnation of the Task Force (an earlier task force had fairly limited success in tackling these issues), we chose to direct our attention specifically to matters of copyright and related issues (e.g., licensing, ownership, deployment, etc.). We discussed other areas of intellectual property (e.g., patent and trademark) as they arose, but our endeavors and this report are directed primarily at copyright issues. In this sense, we narrowed the scope of our charge.

In another sense, we expanded the ambit of the Task Force. At our first meeting, representatives from the Provost's Office, the Office of the Vice President for Research, and the Office of the General Counsel emphasized the importance of directing our efforts at the impact of new media. Pursuant to our charge, we quickly learned that the University does not have a bulwark of policies, practices, and services to adequately manage the copyright issues that arise with the introduction of new media (e.g., Web-based course material, multi-media CD-ROMs, internet-based student faculty collaborations, etc.). We also learned that the University, in many cases, does not have an effective system for addressing older media. So, we directed our efforts to media both old and new.

Three Useful Distinctions

To make the tasks more manageable, the Task Force decided to begin by making a distinction between copyright issues as they apply to use, creation/ownership, and deployment. While these three perspectives are not orthogonal, they provide useful lenses through which copyright and intellectual property can be viewed.

The lens of use highlights the concerns and issues that arise when a person or organization uses someone else's copyrighted material. Use-related questions are ubiquitous at postsecondary institutions. For example, is it acceptable to use a copyrighted article in a course pack? Can a professor put someone else's tables and figures on his or her Web site? Can a department make software available to students in a particular course? How do the forms of the media (video, sound, image, presentation, etc.) and the methods of delivery (face-to-face, via the Internet, on CD-ROM, through television, etc.) influence a faculty member's choices to use a piece of copyrighted material? How much use is too much use? Our campus is replete with these and scores of other related questions.

In contrast, the lens of creation/ownership highlights the concerns and questions that arise when members of the University community create new pieces of copyrightable material. Who, for example, owns the Web site associated with a course? Is the content of a course owned by the University or the instructor? Does this change if the content of the course is moved to a permanent and distributable medium (e.g., videotape, CD-ROM, or Web-based)? How should members of the University community respond to third parties seeking content for projects that could compete directly with university-based projects (e.g., a Web-based biology course)? Should there be any distinctions between textbooks, journal articles, multi-media projects, and software? These and dozens of other questions emerge regularly at the University of Michigan.

Finally, the lens of deployment highlights the interconnected nature of use, creation, and distribution. Imagine, for example, that a biology professor, in collaboration with the Office of Instructional Technology, has designed a multi-media CD-ROM for use in his or her class. Imagine further that the CD-ROM was so successful that colleagues at other institutions would now like to use it. Can the University and/or the professor distribute the CD-ROM to those colleagues? The answer will depend upon what was done from an intellectual property perspective during the creation of the CD-ROM, as well as University policy and practice. Much of the content, for example, presumably came from outside the University and was used either through licensing or through the "fair use" provision of copyright law. Another portion of the content came from the instructor. Presumably, the University and/or the instructor "owns" that portion of the content. Still another portion of the content comes from the programming code that ties the media elements together. Some of that code might be original, but other portions are probably built into the development tool (e.g., Quicktime or Director), and these tools often carry their own licensing restrictions. So it is not clear whether the CD-ROM could be distributed after the fact, even if everyone agreed that it was a wonderful learning tool. What this example highlights is that intellectual property considerations need to be thought about early in the process.

The current landscape as seen through the use lens

Currently, the University has no clear and centralized guidelines, rules, policies, practices, or services that govern the use of copyrighted materials at the University and/or by members of the University community. While the Regents have created the Revised Policy on Intellectual Properties, this policy is largely focused on the creation side of the equation. In addition, although various policies (e.g., ITD policies and the Standard Practice Guidelines) state that members of the University community shall conduct themselves according to the law, this boundary is largely impractical for a community that does not understand the strictures of this dynamic area of law.

Nonetheless, various constituents of the University community realize that copyright has some effect on their lives as users, creators, owners, and/or distributors. Unfortunately, without a central source of information and guidance, the University has a patchwork of attempts to address user-related copyright issues. Different units have different policies and practices. Some units have elaborate policies and practices for users, such as the Information Technology Division. Others, such as the College of Literature, Science, and the Arts, have different, and in some cases inconsistent, policies and practices. Still other units have no policies and practices. Complicating things further, while members of the General Counsel's Office have reviewed some of the policies and practices that units have established, most have not been reviewed.

Where policies and practices do exist, they are frequently inadequate and often lead to unintended consequences. In one department, for example, support staff refused to copy a job candidate's materials for the search committee because they had been led to believe that copying such materials could lead to legal problems. Similarly, in many departments support staff will not copy materials for classroom use, even at the direct request of a faculty member. The research mission of the University is also not immune to the effects of the current confusion.

The methods for acquiring information content are also changing and impact the use of copyrighted resources. Typically, electronic content is made accessible through license agreements, which in some cases specifically prohibit "fair use" or library exemptions to copyright. The emergence of licensing as the primary mode of acquisition and the options to pursue campus-wide licenses to the community's benefit introduce both new incentives and new challenges.

The current use landscape suggests a number of issues that need attention at the level of the University:

The University needs to develop up-to-date, reliable, consistent, and clear copyright-related standards for use. "Who uses what" and "how they use it" have become pressing questions, in large part because new media sources (e.g., the Web) allow for widespread dissemination of material. As such, they raise the stakes considerably from when distribution was limited to students physically enrolled in our classes.

Accompanying these use guidelines must be a campaign to energize and educate the University community about an issue (i.e., copyright) that is complex and often seems like it should be someone else's problem. Faculty, staff, and students should know when they can use material under "fair use," when they must obtain permission (and how to obtain it), and when and how they can obtain alternative sources of the material (e.g., through University-commissioned works or from the public domain).

As an institution, we must decide how much and what kind of risks are worth taking with regard to use. If we take an aggressive "fair use" position, we expose ourselves to litigation and the financial costs associated with it. Moreover, an aggressive position would lead to an erosion of the income that supports scholarly publishing. On the other hand, if we take a conservative position we will certainly increase our costs of licensing material and managing copyright permissions.

Regardless of the specific position taken with regard to "fair use," we need to nurture a culture of compliance with regard to copyright use. This culture will require education and, perhaps more importantly, resources. If a coherent use policy is created, but faculty, staff, and students lack access to the resources needed to comply with that policy (e.g., easy copyright clearance, alternative sources for copyrighted material, help finding things in the public domain, etc.), the policy will be ignored.

As a community, we are likely to continue to struggle with our relationship to the industry that produces academic media. Does "fair use" threaten academic presses? If it does, what will happen to the scholarly work currently published by those presses? How would a reduction in the service and visibility of academic presses affect the prestige of the University? Given that we are both producers and consumers of scholarly works, the University should consider drawing up guidelines concerning the nature of the agreements that scholars should enter into with commercial publishers.

The current landscape as seen through the creation/ownership lens

In contrast to the use side of the equation, where federal, state, and international law restrict many of the options, the University has tremendous latitude when it comes to issues of creation/ownership. Currently, the creation and ownership of intellectual property by faculty and staff fall under Regents' Bylaw 3.10 and the associated Revised Policy on Intellectual Properties. In brief, Regents' Bylaw 3.10 and the Revised Policy on Intellectual Properties grant ownership of all intellectual property to the University, provided that University resources were involved either directly or indirectly in its creation:

Patents and copyrights issued or acquired as a result of or in connection with administration, research, or other educational activities conducted by members of the University staff and supported directly or indirectly (e.g., through the use of University resources or facilities) by funds administered by the University, regardless of the source of such funds, and all royalties or other revenues derived therefrom shall be the property of the University. (Regents' Bylaw 3.10.1)

In a footnote in the Revised Policy on Intellectual Properties, the University goes on to state that it does not claim ownership or revenue from scholarly works and textbooks, though the same footnote explicitly excludes software from this exclusion:

The University will continue the tradition of not claiming ownership or a share of the proceeds from scholarly works and textbooks. Software and works expressly commissioned by the University will continue to come within the purview of this policy. (Revised Policy on Intellectual Properties, FN.1)

While Regents' Bylaw 3.10 sets the relevant policy, complications arise when it is applied to new media. Should a multi-media text, for example, be considered software or a textbook? Similarly, should a performance that is captured digitally and then placed in an interactive framework be considered scholarship or multi-media software? More generally, virtually all scholarly works are now submitted in a form that more closely resembles software (i.e., electronic documents) than it does text on a page. Because the Revised Policy on Intellectual Properties defines exceptions in terms of the final product, it is not clear how it should be applied to new media, where the final product may take several different forms (e.g., the same information could be presented in a book, a CD-ROM, or a Web site).

In addition, there is a sense among some faculty that current policies have the effect of stifling creativity and innovation in emerging areas of scholarship because they remove many of the incentives that are present in traditional avenues of research and publication. Indeed, the Academic Computing Advisory Committee has recently recommended that the Revised Policy on Intellectual Properties be changed to exempt software from University ownership (cf. 1999 Report of Academic Computing Advisory Committee). Beyond this philosophical debate, it is clear that the general language of Regents' Bylaw 3.10 and the Revised Policy on Intellectual Properties is confusing (e.g., the information that software does not qualify as a textbook or scholarly work is found in what is essentially a footnote to a footnote).

One way to promote the broad use and publication of these sorts of works might be to grant faculty ownership and control of these works. Indeed, our impression is that many faculty are not aware that, as employees of the University, the University has ownership rights to all intellectual property developed in connection with their employment, including textbooks and scholarly works. Under the Revised Policy on Intellectual Properties, the University gives back to faculty the rights to their textbooks and scholarly works, but the University would be fully within its legal rights to claim ownership of all intellectual property. Nevertheless, when it comes to copyrightable works (as opposed to patents), University ownership is not part of the faculty culture.

Before undertaking a change in this policy, however, it is worth noting that the intellectual property rights policy with regard to ownership has been formally explored several times at the University without a resulting change in policy. The complexities of the situation undercut many simple policy approaches. Consider these factors:

With new media works, the variety of expressive contributions could often mean that abandoning University ownership, rather than enabling private publication, would leave a large number of contributors with unclear and unexploitable rights;
Elements used in such works often are properties made or licensed through the University, and they would be difficult to obtain through other channels;
The expectations for organizational use of such works, in University distance learning programs especially, tend to support centralized ownership, which is in conflict with faculty empowerment and faculty control over such works; and
The University-sponsored contribution to such works may be much more extensive than works to which ownership is typically not claimed.

All of which means we should continue to review the Revised Policy on Intellectual Properties, but that progress will likely be slow.

The current landscape as seen through the deployment lens

Many resources exist throughout the campus to support the development of new media materials. These include entities with broad support agendas, such as the Media Union, ITD, and resources available through schools and units on a more focused level (e.g., the language laboratory facilities or the Health Media Research Laboratory at the Cancer Center).

The distributed nature of these resources is an asset that enables the many educational missions of the University community. Smaller units develop materials focused on their needs and expertise, while larger, more broadly responsible units develop more strategic agendas to bring information technology, new media, and distance learning resources to the faculty. These efforts appear to be progressive and responsive to faculty needs, and it would be beyond the scope of a broadly fashioned central committee to organize these efforts, and outside of reasonable economics to recommend any central gating function, other than, perhaps, the coordinated delivery of information to faculty about the various resources available to them.

Conversely, the deployment of these materials, once developed, may not be fully maximized. Some units take a sophisticated approach to the delivery of their ideas and materials to students and to the public at large, and broad efforts to define and assist with distance learning activities, specifically, are underway. Some, though, are hindered by a lack of understanding of the legal environment relating to such efforts, and others apparently have created valuable materials which have not received (or cannot receive because of the circumstances of their creation) the maximum possible public exposure.

The deployment of a media work may mean many things: the activities which the University should specifically support include the use of such works in the classroom environment, in research, in the performance of services within the University and external to it, in presentations, in the delivery of distance learning, in direct publication by the University, and in publication through routes outside of the University. The University may also wish to provide peripheral support to the activities of others related to the University mission: the use of works by students in class projects and in dissertations and publication efforts directly by the faculty.

For example, consider a new media work, which interactively educates its user in clinical practice in a medical field. Such a work might be used to train students, to evaluate practitioners in a research survey and present the results, to evaluate a hospital's clinical practice as a service provided by the University, or to provide training to off-campus doctors participating in a distance learning telecourse. It might be distributed to other educational organizations by the University, published under license by an outside entity, or used by the developing faculty and students.

Traditionally, such works might have simply been created as scholarly printed works, subject to an exception to the University's ownership policy on intellectual properties. Publication would have been encouraged by typical faculty review and tenure mechanisms, though not often directly supported. When developed as new media software, however, ownership in such works is often claimed by the University and the private publishing option may not be available. In addition, technologies available for the creation of media works today encourage the use of pre-existing software tools, newly created images, sounds and text, and derivatives of pre-existing works, and make significant contributions by a variety of artists—writers, programmers, designers, producers, "talent"—a prerequisite. The list of intellectual property sources for even a simple work can extend for pages.

For new media works to flourish, we need a system that provides guidance and support throughout the creation and distribution phases of development. One of the key features of new media is that decisions made at the beginning (e.g., to use a particular image or sound) can dictate how the final product may be distributed (e.g., available only in one class, to the University community, or to the general public). Thoughtless decisions early in a project can absolutely doom it.

Summary of the Current Situation

An analysis of the campus landscape reflects several prevailing themes. First, at all levels (i.e., use, creation, and deployment) there is a growing need for advice and decision-making support for copyright and intellectual property questions. Second, there is considerable variability in interpretation of existing law and policy and uncertainty of the University's position related to these areas. Finally, relevant services and resources are highly distributed with little or no coordination. The lack of information, advice, and assistance limits the flexibility and creativity that faculty (and others in the community) exercise in the use and creation of materials. Beyond these general themes, each lens provides a different view of the paths that can be taken.

Most of the answers to the use-related questions—to the extent that there are knowable answers—come from interpreting the law and assessing the risk to the University. That is, many of the use-related issues and limitations come from outside academia and are not under University control. However, the University can make choices that facilitate efficacious access, that promote responsible educational use, and that represent its interests and mission both locally and at the national level.

Most of the answers to the creation/ownership questions come almost entirely from within the University. That is, many of the creation/ownership-related issues and limitations arise not from law but from our own policies, practices, goals, and culture. The University can make choices that promote creation and vest ownership in ways that empower creators while serving the best interests of the University and its mission.

Most of the answers to deployment-related questions—to the extent that we can understand and foresee them—come largely from identifying and managing University infrastructure, units, and resources. That is, many of the deployment-related issues and limitations result from the structure and coordination of University resources. The University can make choices that facilitate the efficient deployment of copyrighted works within and outside the University.

Recommendations

At the broadest level, the members of this Task Force have become convinced that dealing with copyright management and intellectual property rights in the digital age has to become a priority of the University. Most of the questions we face today are the same questions, garbed in new technology, that we struggled with but neglected to answer thirty years ago. These issues will not resolve themselves with time. In fact, the pressures and onus incumbent upon the University to frame media rights issues and to answer media rights questions are increasing exponentially. The choices we do not make today will limit us—or may be taken from us—tomorrow.

At a more specific level, the recommendations of the Task Force fall into two broad categories. First, we recommend the creation of the position of a Coordinator of Media Rights Management. It is our belief that without a person charged explicitly with focusing on the issues related to media rights, the University community will make little progress on these issues. Second, we propose a series of five additional recommendations we believe the University needs to take if we are to bring manageable coherence to this area and use technology to facilitate and encourage the efforts of the members of our academic community. These recommendations are outlined in detail below, beginning with a brief discussion of the underlying principles:

General principles that need to inform our actions

The academic mission of the institution must drive issues related to copyright use and the creation of new works. In the face of changing technologies, economics, and infrastructure, it is easy to lose sight of the academic mission of the University. The issues related to copyright use, the creation of new works, and the deployment of knowledge should be driven by the academic mission of the institution and not necessarily by current technologies or infrastructure.

Members of the community must be empowered to make informed decisions and find optimal solutions. Individuals need to be empowered to make reasonable copyright, "fair use," and ownership decisions. This empowerment will require guidelines and clear statements that enable individual community members to determine when their behavior falls safely within guidelines, when it might need further discussion, action or assistance, and when it is risky or prohibited. These guidelines must be dynamic (i.e., new guidelines should come on line as the need arises and old guidelines should be revised in the face of changing laws, practices, and technology).

Communication must be increased between the separate units currently involved in deployment. The Director of the Media Union and the Chief Information Officer should play central roles in this coordination, as would the Coordinator of Media Rights Management described below.

The University should become a proactive player on the national scene on issues of intellectual property use. In a very real sense, intellectual property is at the core of the University. Our central mission involves the use, creation, storage, and dissemination of intellectual property. We do this through research, the library, the University Press, and our classes. We need to help shape national policy in a proactive way. If we do not take a lead on the national scene, our fate will be in the hands of others—others who are not likely to share our mission or concerns.

The needs and objectives of the entire University community must be considered in the context of an inevitably dynamic postsecondary milieu. Decisions about media rights must be balanced and forward-looking. In the end, we are not afforded the luxury of considering, in isolation, the objectives of users, creators/owners, or distributors. All these constituencies are deeply entrenched within the foundation of the University and they operate synergistically. We also recommend proactive cooperation with both the Flint and Dearborn campuses, which were not directly represented on the Task Force.

Recommendations that will enable us to implement the above principles

Create the position of "Coordinator of Media Rights Management." The Coordinator of Media Rights Management should be charged broadly with centralizing and coordinating policy and use as they apply to all forms of media. The Coordinator of Media Rights Management should be a high-level position that will attract scholars who will be respected by the faculty and who come with demonstrated leadership and an ability to understand and articulate complex issues to the faculty (e.g., someone like Kenny Crews at Indiana University who directs their Copyright Management Center and is a recognized scholar in copyright law). The Coordinator of Media Rights Management should be endowed with the administrative authority, legal expertise, staff, and resources that will enable him or her to accomplish the following mandates:
1. Oversee the centralization and rationalization of existing policies and procedures to make them more consistent, appropriate, and efficient. The Coordinator of Media Rights Management should be charged with allying the delivery of existing services relevant to media works. Clearances, licensing, course security, legal advice, and other services need to be federated with a tracking agent that can identify resources, point people to them, and monitor deficiencies.
2. Articulate philosophies of use and production. The Coordinator of Media Rights Management should be able to make authoritative specific and strategic decisions relevant to the use and dissemination of media works. The articulation of these philosophies should include use guidelines and deployment principles. These guidelines and policies must be solution-oriented. When guidelines prohibit use (e.g., when an individual hears, "No, you can't use that image on your public Web site."), the system ought to be geared toward helping individuals accomplish their goals. It is not enough to identify prohibited behavior.
3. Educate the University community. The Coordinator of Media Rights Management should be charged with overseeing the development of a central gateway that will provide information about media-relevant issues (e.g., useful Web sites on and off campus, upcoming symposia, special events, breaking news, etc.) and that will connect media works policies, guidelines, and relevant services. While we feel that there can be separate "entries" that lead directly to particular services, policies, etc., all of these separate entries should be accessible through one integrated source. That is, we want to emphasize the importance of a visible starting point for all media use, creation, and dissemination issues.
4. Be a problem-solver. A central role of the Coordinator of Media Rights Management will be to help solve media-related problems. If, for example, collaboration between students and faculty becomes a major force in the creation of new intellectual property, the Coordinator should work to solve the problems inherent to such collaboration.
5. Facilitate collaboration between units. By its very nature, new media typically involves enormous collaboration across units. A typical multi-media project, for example, will involve content from one source (e.g., Dentistry), course tools developed through the Media Union, artwork produced by medical illustrators, software maintained by ITD, and distribution managed through departments, colleges, and/or the University Press. For projects like this one to be successful, there must be an entity that positions itself at the nexus of all these interconnections.
6. Create an identifiable copyright and media rights management resource. Members of the University community need a definitive starting point within the labyrinth of campus media rights resources to facilitate their objectives—if you will, a media rights/copyright reference librarian. This resource need not provide all the answers but should provide directions and options.
7. Provide a well-documented University interpretation of intellectual property policies. A well-documented interpretation of the University's intellectual property policies—particularly as they relate to creation, ownership, "scholarly works" and "software"—is needed to empower and inform faculty, staff, and students.
8. Coordinate existing services. Currently, multiple units on campus are involved in various aspects of media use, creation, and deployment. In order to use these resources more effectively, they should be coordinated. Much as the Media Union operates as a federation of services in the production of material, we need a broad federation of the services and units that deal with issues of use, creation, and deployment.
One of the central goals of this recommendation is to consolidate much of the effort that currently goes into dealing with these issues. In the service of accomplishing these mandates, the Coordinator of Media Rights Management should have designated effort from the Technology Management Office, the Office of the General Counsel, the Library, the Chief Information Officer, the University Press, and the Media Union. Moreover, because the functions of the Coordinator of Media Rights Management span the University and do not fall exclusively in any single domain, and because it is critical that the Coordinator be seen as having University authority rather than the authority of a particular school, division or unit, the Coordinator of Media Rights Management should report to the Provost. An overview of this structure appears at the end of this report (Appendix A). In May, members of the Task Force met with the directors of three of the key units (i.e., the Director of the Library, the Chief Information Officer, and the Director of the Media Union). At this meeting, all three indicated their support of the reporting structure and overall effort outlined in this recommendation.

In the interim between now and the hiring of a Coordinator of Media Rights Management, and during the first year of the Coordinator's term, an advisory group, similar in composition to this Task Force, should be formed to provide advice on matters of policy and use. It may be advisable for such a committee to continue in perpetuity under the aegis of the Coordinator of Media Rights Management.
Arrive at an institutional position on "fair use." We must decide how much and what kind of risks are worth taking with regard to use. If we take an aggressive "fair use" position, we expose ourselves to litigation and the danger that such a position could lead to an erosion of the income that supports scholarly publishing. If we take a conservative position, we will certainly increase our costs of licensing material and managing copyright permissions. But if we take no position, we expose ourselves to someone else's agenda (e.g., non-academic publishers and the media/entertainment industry)—an agenda that will likely cut to the very core of the University's educational and research missions.
Clarify Intellectual Properties Policy. The current policy is often confusing and frequently a source of tension for many members of the University community. At the very least, the language used in Regent's Bylaw 3.10 and the associated Revised Policy on Intellectual Properties should be simplified and the University community better informed of its intent and effect. A more ambitious strategy would be to revise the policy in a way that focuses more on the processes involved in the creation of intellectual property than on the products of that creation. The current policy is written in terms of products (e.g., patents, software, textbooks, and scholarly publications), and it will continue to strain in a world where changes in technology bring about changes in the products of scholarship and research. By focusing the policy on process (e.g., what university resources were used, how many people were involved, what licenses were required, etc.), rather than outcome (e.g., is it a textbook or a piece of multimedia software), it may be possible to avoid many of these problems. (For a more complete discussion of this issue, see "Intellectual Property and New Media Technologies: A Framework for Policy Development at AAU Institutions," May 1999, on file in the Provost's Office.)
Create educational opportunities around issues of copyright use and media creation. An ongoing education program, particularly as digital applications become more commonplace, is needed to draw attention to best practices and engender a better understanding of the law and of University policy. Currently, we wallow in ignorance, fear, or apathy. The digital age will very likely punish that kind of behavior. Intellectual property issues need to be given a high profile that could include symposia for faculty and staff and a first-level link from the U-M Gateway to a copyright/intellectual property Web site.
Strengthen the intellectual property counsel in the Office of the General Counsel. The Task Force understands that the Office of the General Counsel is currently in the process of strengthening its intellectual property counsel. Specifically, it has recently hired a Media Rights Policy Analyst and is searching for another Intellectual Property Counsel. We support these hires and believe that they will be critical resources for the Coordinator of Media Rights Management.
Funding will be essential. It is difficult to anticipate where additional resources will be needed. If, for example, the University takes a conservative stance with regard to "fair use," more resources will need to be allocated to obtain copyright permissions. If, on the other hand, we take a liberal stance, more resources may be needed in the Office of the General Counsel to deal with litigation. But what is clear to members of this Task Force is that the issues raised by the emergence of new media are of central importance to the health of the University and that they may well require additional funding.