How (and why) Digital Diploma Mills (don't) Work: Academic ......education began in 1917 with vocational courses for returning soldiers, and correspondence education expanded to secondary

Workplace: A Journal for Academic Labor 2005, Vol. 7 : 1 (November): 38-59

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How (and why) Digital Diploma Mills (don't) Work:Academic Freedom, Intellectual Property Rights, Automation and UBC's

Master of Educational Technology Program

Stephen PetrinaUniversity of British Columbia

In the early 21st century, an expansion ofeducational markets implies automation, socialpolarization or stratification, and corporatization.These processes, among others, governinitiatives to exploit the economics of thecorporate university. Within are threecompelling issues facing higher education:academic freedom, intellectual property rights(IPRs), and revenues. In Digital Diploma Mills,David Noble describes two practicesunderwriting these issues. The first iscommercialization via corporate exploitation ofresearch, licensing and the reassignment of IPRs(i.e., copyrights, patents and trade secrets). Thesecond is commodification via the automation ofcurriculum and instruction (C&I) and theunbundling of IPRs (i.e., copyrights).

The automation of C&I draws facultyand students into market forces of e-commercethrough the consumption and production ofdigital commodities, generating conflict anddisputes among capital, labor and management(de Castell, Bryson & Jenson, 2002). For faculty,this involves deskilling, displacement, erosion ofacademic freedom, and the reassignment ofIPRs. Historians such as Henry Braverman(1974) and Noble (1984) documented theautomation of manufacturing and Noble (2002)reasoned that the automation of the professionsoccurs under similar conditions. Digital diplomamills, in Noble's account, can be read as a finalstage in the long-term capitalization of thecorrespondence or distance education sectors ofthe academic economy. One question is whetherdigital diploma mill blueprints will continue totransform larger sectors of academia.

The automation of the professionsprovides contradictions not necessarily found inthe automation of blue and pink-collar work(Petrina, 2004a). For example, IP laws generallydefine rights to both intellectual works and morelabor-intensive products as residing with

employers or those who own the capital used inproduction. Many white-collar employees andcontractors, however, have rights to their "workproduct" unless otherwise specified in writing,where work is done under conditions of "worksmade for hire" (US) or "work made in the courseof employment" (Canada). Indeed, academicsenjoy an "academic exception" tradition incopyright law. Academic freedom for theprofessoriate implies rights to, and oversightover, their intellectual works, a sovereigntyeroded by commercial and corporate restrictionson research and teaching. Professionalassociations and unions have resources to defendthe work of their members unavailable to otherskilled workers, although many professions havesurrendered the right to particular forms of laboraction (i.e., strikes) or have been legislated to doso. The limits and effects of power in addressingor resisting automation and controllingeconomies of scale are now central to scholarsstudying globalization and the alignment of thecorporate university with neoliberal designs onthe "knowledge economy" (Peters, 2002).

Throughout the twentieth century,patents and trade secrets were coveted inuniversity research and development (R&D), butacademic exploitation of copyrights, especiallyin digital works, is a fairly recent artifact of theknowledge economy (Lessig, 204; Polster, 2001;Wilkinson, 2000). At the same time, open sourceand peer-to-per (P2P) models of file sharing anda heightened sense of rights (e.g., economic,human, property, trade related, etc.) to publicknowledge have introduced a crisis in copyrightlaw governing digital works (Petrina, Volk &Kim, 2004; Polster, 2001; Willinsky, 2006).Copyright law has attempted to accommodatecyberspace by merely calling it a conveyance—another shell or format— for the content ofexpression. For example, copyright law extendsdistribution and reproduction rights for music


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copied from record to tape to CD to DVD toMP3 or MP4. Extension of copyright is onething; protection is something entirely different.The professions, including the professoriate,have yet to come to terms with new demands onpublic knowledge or digital works.Hyperauthorship, or the proliferation ofsubauthorship, is one indicator of the crisis ofdigital works (Cronin, 2001). For instance, anoften-cited 1997 article in Nature has 151authors drawn from a network of laboratoriesand universities. Another indicator is piracy andremixing of courses, music, movies, software,etc.; a phenomenon of what Kavita Philip (2005)calls the "technological author." Copyrightprotection hardly addresses assumptions ofauthorship or rights to digital works, and thetechnological author interrupts conventionalforms of resistance to the automation ofacademic labor. So, while "copyright is the sinequa non of the digital diploma mill" (Noble,2002, p. 38), it is misleading to conclude that IPinterests in the automation of professions aresimply matters of conflict betweenadministration and faculty over rights or controlof work products.

Noble theorized and documented thegenesis of the digital diploma mill, locating it inthe tradition of the correspondence school andthe political economy of automation. Responsesto this thesis were charged (Winner, 1998), withthe bulk coming to the defense of distanceeducation, "online learning" or screen-to-screen(S2S) virtual classrooms with comparisons to"face-to-face" (F2F) brick and mortarclassrooms (e.g., Brier & Rosenzweig, 2002;NEA, 2000, p. 20; Schneiderman, 1998; White,1999). Meta-analyses were generated to arguethat students' mental productivity or academicperformance in S2S was equal or even superiorto F2F courses (e.g., Bernard & Abram, et al,2004). Some philosophers entered theconversation with suggestions that F2F ontologywas superior to telepresence (e.g., Dreyfus,2001). Others argued that S2S education couldbe humanized if only attachments to the "sacred"space of the F2F classroom could be overcome(Jaffe, 1998) or alternative practices ofcomputer-mediated communication (CMC) wereadopted (e.g., Burbules & Callister, 2000, pp.153-82; Feenberg, 1999; Hamilton & Feenberg,

2005; Werry, 2001). However, most responsesavoided Noble's thesis that digital diploma millsintroduced or fused particularly distastefulaspects of the white-collar factory into the heartand soul of higher education (e.g., capitalaccumulation, displacement of labor, low wages,opaque bureaucracy, overpriced commodities,prof i t maximiza t ion , unaccountablemanagement). The problem is not the alienation,performance or satisfaction of the S2S studentq u a customer; rather, the issues involveinterrelations among capital, labor, management,concentration of power, and the intensificationof globalization, underwriting erosions ofacademic freedom and faculty governance.Noble described the general structure of digitaldiploma mills but did not have the benefit of acase study for details. This article providesdetailed insights into the machinations of adigital diploma mill and, like Noble, explains itsoperation through the political economy ofautomation. What is an automated courseauthor? How do digital diploma mills work?

UBC's Master of Educational TechnologyProgram

The global education market isestimated at $2 trillion with the US's share at$750 billion (LearnFrame, 2000, p. 54;Thinkwell, 2001). The Canadian educationmarket was $70 billion in 2002, with $30 billiongoing to postsecondary education (StatisticsCanada, 2003). Postsecondary education in theUS accounts for $237 billion or one-third of thetotal US market (LearnFrame, 2000, p. 54).While the definition of for-profit education ischanging (de Castell, Bryson & Jenson, 2002;Ross, 2000; Ruch, 2001; Werry, 2001), publiclyheld or traded for-profit education companies inthe US had a market value of $70 billion in2002, which is about one-third of the totalindustry (Galan, 2001; Goldman Sachs, 2000;Higher ed Inc., 2005; Newman & Couturier,2002; Sandler, 2002, p. 13; Stokes, 2000).Postsecondary S2S education in the US was $5billion in 2004, reflecting 9-20% mean increasesin annual revenues as reported by 71 collegesand universities (Primary Research Group,2004). These increases reflect 20% mean growthrates of enrollment in S2S courses for the pastthree years (Allen & Seaman, 2005;


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Blumenstyk, 2005). Multi-university alliances,such as the SUNY Learning Network andIllinois Virtual Campus report 20% increases inannual enrollments over extended periods (e.g.,7-10 years) (Bonk, 2004, pp. 20-21). TheCanadian Virtual University has reported similarincreases (Lorenzo, 2004), and although thereare seven times as many S2S providers in the US(3,190 in the US, 450 in Canada), Canada hasthe highest number of providers per capita in theworld (Aurini & Davies, 2004; Frank, 2001;Mills, 2001; Wende, 2002, p. 10). WebCT,courseware developed at the University ofBritish Columbia (UBC) in the mid 1990s andnow a $130 million company, generates about$15 million each year in revenues. Over 10million students at 2500 universities and for-profit institutions now use WebCT. Pure andsimple, e-learning is e-commerce.

Romantic histories of online educationin BC date its origins to 1919 and a small islandoff the west coast, where a lighthouse keeperrequested that the Provincial Department ofEducation use the postal service to forwardcurriculum materials to assist his wife inteaching their small children (Ruggles et al,1982, p. 16; see also CADE, 1999; Mills, 2001).The first opportunities for postsecondaryeducation began in 1917 with vocational coursesfor returning soldiers, and correspondenceeducation expanded to secondary C&I by 1929.UBC's Department of Extension was establishedin 1936, and in 1949 this department was giventhe charge of UBC's for-credit correspondenceeducation. The Department of Extension waschanged to the Centre for Continuing Educationin 1973 [renamed Continuing Studies (CS) in1993] and in 1975 a Guided Independent Studydivision was created to oversee for-creditcorrespondence. This division became DistanceEducation and Technology (DE&T), a divisionin CS, in the mid 1990s.

DE&T manages most of the S2S coursesat UBC, and is currently an institutional serviceunit of UBC's Office of Learning Technologies(OLT). Nearly 6,500 students enrolled in DE&Tcourses in 2004-2005, an 85% increase since themid 1990s (DE&T, 2003). A vast majority areundergraduates (93%), with a balance ofgraduate (4%) and certificate students (3%).DE&T grew by 9% per annum for the past nine

years while UBC total enrollments increased by3.2% each year (Bourlova, 2005, pp. 18-20). Thefastest growing enrollments are in S2S courses,which now account for about 30% of all DE&Tenrollments. Although 102 of 140 coursesoffered through DE&T are S2S, enrollments inmultiple sections of popular print-based courses(i.e., English, history, philosophy) dictate thatDE&T primarily remains a mail-ordercorrespondence education unit.

Cost recovery units within faculties anddepartments offer about 15% of the S2S coursesat UBC while DE&T accounts for 85%. TheFaculty of Education, established at UBC in1956, has a history of continuing education anddeveloped its own Field Development Office in1975. In 1987, this became the DistanceEducation Office (DEO), which by the early1990s had 2,500 students taking itsundergraduate correspondence courses eachyear. The DEO was changed to the Office ofContinuing Professional Education (OCPE) in1996 and to External Programs and LearningTechnologies (EPLT) in 2003. About this time,EPLT began to place courses online and,providing many of the same services as DE&T,now offers 36 S2S courses enrolling ~550students. Nevertheless, save for investments inU21 Global, UBC is a fairly small-time player inthe S2S market.1

In 1997, DE&T inaugurated a post-graduate certificate (15 credits) programbetween UBC's Department of EducationalStudies (EDST) and Tec de Monterey, andwithin a few years, began to explore the logisticsof a graduate degree program. The BusinessPlan for the Master of Educational Technology(MET) program was drafted by DE&T DirectorTony Bates (with Jeff Miller) and introduced tothe Faculty of Education (FoE) in April 2001(Bates & Miller, 2001). A few universities inCanada and the US and the Open University inthe UK were minor competitors for such aprogram, and the proposed MET degreedesignation was a novel addition to UBC'sofferings of master's degrees. At the time, when

1 For a backdrop to this specific to thecommercialization of UBC R&D, see Petrina &Weir, this issue of Workplace. For U21, seeWalker, this issue of Workplace.


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Dr. Bates was asked if technology wasfundamentally changing the university, heresponded "yes— but… there will always be arole for the F2F campus element" (quoted inCharbonneau, 2001, p. 22). Dr. Bates had laidout the basic principles for budgeting andstaffing S2S programs in his popular book,Technology, Open Learning and DistanceEducation, published in 1995.

The MET Business Plan spelled outdetails for a 30 credit, course-based master'sprogram, with a core requirement of four coursesin both English and Spanish, and the remainingsix elective courses in either language dependingon the university. Students would pay tuition of$12,500 (CD) for the program. Within a fullycost-recoverable model, the program, assuming40 students per course, would yield "acomfortable annual profit of $220,000 per year,by year 7" (i.e., 58% return on expenditure) (p.15). Sixty students per course would increaseprofits to $440,000 per year (i.e., 94% return onexpenditure). A $15,000 production cost,including faculty FTE, for each course wasallocated to the budget (p. 12). "Tutor fees"would be $220 per student, "with a tutor tostudent ratio of 1:20, or $4,400 for a class of 20students." Estimating the work necessary for athirteen-week course, they "assumed that thiswill entail approximately 100 hours work… or12.5 days" (p. 13). The piecemeal instructorwage was derived from a DE&T figure Dr. Batesestablished for DE&T tutors in the late 1990s(Bartolic-Zlomislic & Bates, 1999a, 1999b;Bates, 1995). To centralize control, the programwould be housed within the OCPE (EPLT in2003), a service unit, rather than a department orcentre within the FoE.

The draft Agreement Between UBC andTec de Monterey defined the governance of theMET program and terms with which IPRs forthe courses would be governed. A GoverningCouncil consisting of two members appointed bythe dean of each institution would oversee"overall academic integrity and coherence of theprogram," "new course development," approvalof "proposed content of all Program coursesprior to their development," course fees, gradescales, transfer credits (p. 7). The four corecourses would be jointly owned while theindividual institutions would be sole owners of

the electives. The core stipulation of the IPclause was that each institution "warrants that ithas, or will obtain the rights necessary to enterinto and perform this agreement" (p. 9). Ineffect, each institution was promising to obtainand deliver from designers (i.e., facultymembers) copyrights for all courses in theprogram. UBC's Policy 88, governing IPRs forpatents and licensing, nevertheless contradictedthis promise by reiterating first author rightsfrom the Canadian Copyright Act. Herein, UBCwas assuming that faculty members would giveup IPRs for their courses, surrender academicfreedom, and disregard their "academicexception" to "works made for hire" or "workmade in the course of employment" conditionsin US Copyright Law and the C a n a d i a nCopyright Act.

The MET program proceeded throughcurriculum approval procedures in the FoE in thefall of 2001 and to the UBC Senate for finalapproval on 27 February 2002. A marketing planwas launched and admissions opened in thespring of 2002 for the first two courses (ETEC510 & ETEC 540) to be offered in the fall. Alsoin the spring, DE&T instructional designersbegan circulating a course contract to facultymembers who agreed to design and automateS2S courses as part of their normal workload(1.5 FTE to design & automate, 1.5 FTE toteach). The MET Letter of Agreement for theProduction, Development and Delivery of anOnline Course was an artifact of prior DE&Tpractices, where, unbeknownst to most oncampus, including the MET Coordinator, facultymembers were required to reassign IPRs forcourse curriculum to UBC and surrender certainaspects of academic freedom and workingconditions (e.g., review of the curriculum,course maintenance, dispute resolution over IP).Now, the contract was a condition for METcourse assignments. Faculty who agreed todesign and automate a MET course wereconfronted with the following contract language:

7. Intellectual PropertyThe University of British Columbia is theowner and holds copyright in perpetuity onall materials developed and producedspecifically for the project. Reproduction ofany of these project materials, in whole or in


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part, without written permission of theAssociate Vice-President Academic, orhis/her designate, is forbidden. However, theauthor retains the right to utilize informationpresented in the materials and to pursue itspublication in other forms. The University ofBritish Columbia, in consultation with theauthor(s), has the right to make anyarrangements it deems advisable concerningthe use of all project materials for which itholds copyright. Computer softwareinvented for use in this project, and whichcan be used again as a "shell," will fall underUniversity Policy #88, Patents andLicensing. (MET IP contract, April 2002)

The first group of six designers signedoff on their courses (ETEC 510 & ETEC 511).Skeptical about the IP clause, faculty membersbegan to question certain clauses. On 30 April,the MET Coordinator forwarded a memo toMET course designers:

As a result of some inquiries from StevePetrina over the interpretation of the IPclause in the standard DE&T contract for theMET program I consulted with the UBClawyer…. [who] developed some languageto clarify this. Essentially the way he hasdone this is to say that the authors will giveup copyright over everything to theuniversity but that the university will thenlicense back the use of these materials to theauthors…. If you have any concerns, pleaseget back to me ASAP. It is essential that weget these contracts signed so that everyone isclear on the expectations and timelines.(Gaskell, 2002a, p. 1)

"As I get closer to online course development,"the MET Coordinator (Gaskell, 2002b, p. 1)wrote a few days later, "the issues of copyrightseem to get trickier. My effort to clarify what Ithought was a reasonable request has producedlanguage that is threatening to alienate thepeople I need to develop courses…. It is in theinterests of the profs to delay creating the onlinecourses. It is not in the interest of the METprogram…. We need to create an environment inwhich profs feel supported in their efforts tobuild online courses and are not constantly

worried about their work being alienated fromthem. Lawyers need to worry about worst-casescenarios because that is what they end updealing with. Often times, though, this approachwarps normal relationships." As the METCoordinator indicated, the confidence of someparticipating faculty members was erodingbefore the first MET course was offered.

With minimal faculty input and time torespond through the summer, the METCoordinator and university lawyers contrived anew MET Letter of Agreement containing aclassic move to unbundle IPRs by distinguishing"author materials" from "course materials:"

7. Intellectual PropertyOriginal materials used in this course thatattract copyright protection in Canada maybe:• created solely by an Author ("Author

Materials"); or• created jointly by an Author and

individuals at the academic or serviceunits of the University working todevelop and deliver MET ("CourseMaterials").

For greater clarity, Author Materials include:• works created by an Author before this

course was contemplated; and• works created by an Author specifically

for this course, but without significantinput from individuals at the academicor service units of the Universityworking to develop and deliver MET.

For example, Author Materials include,without limitation, course outlines, casestudies and student exercises. Each Authorowns copyright in Author Materials. EachAuthor agrees that Author Materials maybe used, in perpetuity:• By the University and/or by Tec de

Monterrey in connection with their jointMET; and

• By the University in connection withother courses to be offered in eitherelectronic or paper media. If theUniversity uses Author Materials inconnection with courses to be offered bya third party outside of the University,then the University will:


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o use reasonable efforts to consultwith Author of those materialsbefore such use; and

o negotiate in good faith with theAuthor of those materials todetermine that Author’sappropriate entitlement to anyresulting revenues received bythe University.

The University owns copyright in CourseMaterials. The University agrees that thoseelements of Course Materials that comprise"content" (including without limitation thesyllabus, but excluding the "look and feel")may be used, in perpetuity, by an Authorwho contributed to the creation of thosematerials, for the purposes of teachingand/or publication.The University owns copyright in the METcourses as a collective work. (MET IPcontract, September 2002)

As indicated, this version of the METcourse contract altered the DET course contractin an attempt to "unbundle" copyright in thecourses, giving the university certain rights andthe authors the remaining rights. Of course, thisagain was an unreasonable demand on the METcourse designers, forcing them to assign three ofthe five basic rights to each of the courses. Acopyright is actually a bundle of five basic andoverlapping rights, typically indivisible unlessreassigned or transferred by the author:

Copyright— A Bundle of Rights• Reproduct ion— the right to create

identical or near identical copies of thework.

• A d a p t a t i o n — the right to createderivative works, such as abridgements,translations or versions in a range of media(book to movie to video to CD to on-linegame)

• Distribution— the right to make the firstsale of each authorized copy of the work.

• Performance— the right to present, recite,play, act or publicly perform the work.

• Display— the right to publicly show thework, by means of film, radio, TV, WWWor other device.

UBC's strategy of unbundling, endorsed by aconsortium of universities in 1997, meantgaining control over display, distribution andreproduction rights for the MET courses(Consortium for Educational Technology forUniversity Systems, 1997). Unbundlingnecessarily introduces contracts into the coursedesign and automation process.

Generally, only during the past decadeof a digital transformation of for-profit S2Seducation and the mass distribution ofcourseware did course copyright and governancebecome a legal issue in higher education (Noble,2002; Ross, 2000). In Canada and the UnitedStates, the creator of a work is automaticallyconferred a copyright for the work, whetheracademic, artistic or literary. Excluding thepossibility of "works made for hire" or "workmade in the course of employment" contracts,copyright for academic works, such as coursesand course materials, created within the normalscope or conditions of university employmentbelongs to the author. Administrators attempt toplace university teachers under for hireconditions with incentives such as buyouts andstipends for designing courses. Yet, for hireconditions are not so easily demonstrated underthe law and the simple existence of anemployment relationship does not create for hireconditions (Holmes & Levin, 2000; Townshend,2003). All products created in the course ofemployment are not the property of an employer.Hence, the reassignment of copyright to theuniversity depends on a mutual recognition offor hire conditions and a written agreement. Inaddition, unions and faculty associations canbargain and negotiate IP rights to address ""workmade in the course of employment" on behalf ofits collective membership.2

The fact that a researcher, whether asauthor or editor, is able to enter into such a

2 Lawyers typically refer to theinfluential Reid case's 13 factors to determinewhether a "work made for hire" condition exists.Community for Creative Non-Violence v. Reid,490 US 730, 751 (1989); See Holmes & Levin(2000) and Townshend (2003). For copyrightlaw clauses, see US Copyright Law of 1976,Title 17, Section 101; Canada Copyright Act,Chapter C-42, 13(3).


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contract as a free agent speaks to the public trustinvested in academic work— perhaps mostnotably celebrated with the concept academicfreedom— but a public trust which a course IPcontract, such as the MET course contract, voidsby positioning the author as working for apublisher. An organization’s employees aretypically engaged in just such works made forhire— think of Microsoft programmers— butacademics have long been entrusted with thecopyright for their intellectual products, such asresearch articles. Traditionally, a moral or tacitcontract— the "faculty exception," "teacherexception" or "academic exception"— grantedcourse oversight to instructors who created thecourse materials. Although a legal case could bemade from this historical precedent, theacademic exception has withstood challenges inthe courts in recent times.3 It recognizes that ascholar’s research is self-directed, owing more tofree inquiry and the public good than to thedirect financial wellbeing of the institutionemploying the researcher (Frank, 2001;McSherry, 2001; Townshend, 2003; Triggs, thisissue of Workplace).

On the interrelationships amongacademic freedom, courses and IPRs, legalscholar Donna Demac (1999) concluded: "Ifuniversities owned the scholarly output offaculty members, they could potentially interferein freedom of expression. Academics must havea high degree of independence in order to teachand do research effectively" (p. 2). Academicfreedom refers to the freedom to teach withoutinterference or censorship. This involves a free

3 I am grateful to John Willinsky forediting an earlier draft of this section. On theacademic exception, see Triggs, this issue ofWorkplace; Euben (2000), Frankel (2002, p. 14),Holmes & Levin (2000), Laughlin (2000),McSherry, (2001, pp. 101-143), and especiallyTownshend (2003), and court cases Hays v. SonyCorp. of America, 847 F.2d 412 (7th Cir. 1988);Dolmage v. Erskine [2003] OJ No. 161 (OntarioSuperior Court of Justice- Small Claims Court).101-143. On a freedom of speech interpretationof university assertion of research copyrightownership, placing an undue chill on facultyfreedom to explore, discuss, and share ideas, seeMeyer (1998).

expression of views and choices of coursecontent, methods, and materials "withoutcensorship or reference or adherence toprescribed doctrine."4 This implies oversight,which comes with responsibilities and rights.Who ought to govern S2S and F2F courses? Orspecifically, who has rights to course materials?These questions refer to both moral (academicfreedom) and legal rights. Demac continued, "asuniversities see a growing profit potential indigital course material, educators worry aboutlosing control of both their work and therevenues that could derive from its sale. In otherwords, the dispute touches on two compellingissues: academic freedom and money" (p. 2).

Bryson v. METIn September 2002, after Associate

Professor Mary Bryson was assigned to design(1.5 FTE) and teach (1.5 FTE) an MET course(ETEC 512) as part of her regular teaching load,she was shown the MET course contract. Shetook issue with the contract, noting problems ofsigning a legally binding document that: (a)makes a distinction between "author" and"course" materials that is not made in designingF2F courses, (b) assigns copyright of coursematerials to UBC, (c) was not normally aprerequisite to either course design or teaching,and (d) was not bargained by the UBC FacultyAssociation (FA). Bryson sought assistance fromthe FA to deal with the implications of the METcontract. On 24 October 2002, the FA advisedall faculty members to not sign course contracts.By this time, other faculty, including thosefeeling pressured and insecure with eithersessional or untenured status, signed contracts.The course Dr. Petrina was designing (ETEC531) was moved to 2004 so there was nocompulsion to resign or sign. The first METcourses (ETEC 510 & ETEC 540) were placedonline and offered in the fall of 2002. Since she

4 Queens University Faculty Associationand Queens University. (2002). CollectiveAgreement, 11 May 2002 – 30 April 2005.Kingston, ON: Authors. For a history ofacademic freedom and legal matters, seeBruneau & Turk (2004), Cameron (1996), Horn(2004), Rochford (2003), and Tierney &Lechuga (2005).


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did not sign the contract for ETEC 512, on 27November 2002 MET administrators removedDr. Bryson from the assignment leaving her tofill her workload with a F2F course. On 11December, the FA filed grievances against UBC.

Two grievances were brought to the BCLabour Relations Board (LRB). The first andmajor grievance concerned the fact that in thecourse design and automation for the METprogram, UBC negotiated directly withindividual faculty members rather than with theunion as exclusive bargaining agent. The secondgrievance dealt with the charge that “inretaliation for Dr. Bryson’s refusal to enter intoan individual agreement" with UBC, she wasdismissed from the assignment (Dorsey, 2004,pp. 1-2). Arbitration hearings were held on 27-28 October 2003, 15-16 January and 2 February2004 under the jurisprudence of James Dorsey,QC, a senior, independent Arbitrator appointedby the BC LRB.

On the morning of October 27, thearbitration teams squared off. On one side wasthe MET Coordinator, now Associate Dean ofEPLT, the DE&T Director, and four lawyers,including the Director of Faculty Relations,Director of the University-Industry LiaisonOffice (UILO), and co-counsel for UBC.5 On theother side were three faculty members, includingDr. Bryson, the Executive Director andMembership Services Officers of the FA, the FAPresident, FA Labor lawyer and co-counsel. Inhis opening statement, the UBC's counsel wenton the offensive by arguing that IP was not aterm or condition of employment for facultymembers— the FA did not have exclusivebargaining agency over individual coursecontracts. The strategy was to limit the scope ofthe FA's bargaining rights by pointing out thatthe FA had not bargained IPRs in any collectiveagreements up to this point. "There is nothing inthe Collective Agreement about IPRs at all," hestated. Hence, course contracts were well withinthe scope of the university's residual manager'sright; the MET Coordinator, upon negotiatingindividual course contracts, was merely involvedin "routine administration" of the CollectiveAgreement (Roper & McFarlane, 2004a, p. 1).

5 On the UBC UILO, see Petrina &Weir, this issue of Workplace.

He turned to Brown and Beatty to note that"arbitrators have held that management may inthe absence of any express terms in theagreement to the contrary, unilaterally installtime clocks, a card-swipe policy, numberingtags, electronic surveillance..." (p. 12). The FAlawyer provided the caveat that UBC did notsimply institute a new policy (or revision ofPolicy 88), which was a viable option foradministrators; instead they negotiated withindividuals (Black & Blendell, 2004a, 2004b2004c).

UBC's counsel reasoned that UBC was a"multifaceted organization" and in this case was"acting as qua publisher, not qua employer." Hepointed out that the university is a publisher—"UBC Press is an arm of the university"— "andin that capacity deals directly with faculty abouttheir IPRs. It does not negotiate with the FAabout those rights" (Roper & McFarlane, 2004a,p. 4). When faculty members deal with apublisher, they are acting "not as qua employeeof the university, but as independent facultymember." Putting a course online was theequivalent of publishing a "compendium ofmaterials that can be used anywhere in theworld, theoretically." The UBC lawyercontinued with this line of reasoning: "UBC ispublishing a program, a program that isdeveloped by teams of contributors. This is nodifferent than a publisher publishing a book withchapter contributions from various authors orteams of authors" (p. 9). The opening strategywas to break the notion of collective agency byportraying faculty members as eitherindependent authors and contractors orproduction workers on the university's assemblyline. Invoking the "work made in the course ofemployment" clause of Canada's Copyright Act,he concluded that each faculty member is anindividual "widget maker," and without anagreement to the contrary, "there is no extensionto ownership over the widget."6 In effect,

The University's primary submission is thatwhen it dealt with faculty with respect totheir IPRs, it was doing so not as employer

6 The sections on the arbitration are

based on field notes and Black & Blendell,(2004a) and Roper & McFarlane (2004a).


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dealing with conditions of employment butrather as the provider (or publisher) of theMET program in conjunction with Tec deMonterey. It was dealing with rights relatedto work product, not terms or conditions ofemployment relating to the creation of thework product. (Roper & McFarlane, 2004a,p. 3)

The FA's counsel countered by assertingthat UBC breached the Collective Agreement byengaging individual faculty members in directcontract negotiations in contravention of the factthat the FA has exclusive authority to bargaincollectively on behalf of all its members. Asremedy for this breach, he reasoned, a fair rulingwould prevent UBC from imposing ornegotiating individual course contracts, whichcontained terms and conditions of employment."We submit," he argued, that the UBC lawyer'scharacterization of the university's "relationshipwith Dr. Bryson and the other Faculty Membersas that of 'Publisher' to 'Author' is misguided.Indeed, we would submit that it is acharacterization concocted by the University,well after the events in question" (Black &Blendell, 2004a, p. 33). The MET program, hecontinued, is offered by the FoE: "It is not aDE&T program, nor is it a program offered byUBC Press." "Nowhere in any of the proposalsfor the program is there any mention that theUniversity would engage Faculty Members toauthor courses for it to 'publish'" (p. 33). Therelationships outlined by the UBC lawyerfundamentally distorted the nature of academiclabor and misrepresented the interconnectionsamong academic freedom and oversight over the"work product" of faculty members. Simply put,the FA lawyer argued, "IPRs are terms andconditions of employment." UBC's counsel, heargued,

implied that the scope of a union'sbargaining agency excludes IPRs. Westrongly disagree. We submit that IPRs, andcopyright in particular, are no different thanother terms and conditions of employment inthat regard…. Our submission is based onthe practice of the Canadian universitysector, as well as statute and case law.(Black & Blendell, 2004a, p. 37).

Moving to the issue of Dr. Bryson'srefusal to sign a course contract as a term andcondition of her workload and her subsequentunion activity, the FA lawyer argued that theMET Coordinator's action in effectively firingher from the assignment was discrimination."When Dr. Bryson refused to sign the Letter ofAgreement , and took her concerns to theAssociation," he maintained, UBC retaliated "byremoving her from the MET project. While theUniversity may try to provide a reasonableexplanation for its decision, we submit that itstrue motive was a discriminatory one" (Black &Blendell, 2004a, p. 56). Indeed, the METCoordinator's insistence that faculty memberssign the MET Letter of Agreement "discriminatesagainst those Faculty Members who heed theadvice of the FA not to sign the agreement." TheMET course contract "thus arguably rewardsthose Faculty Members who do not adhere to theAssociation's advice, and punishes those whodo" (p. 63).

The Arbitrator heard examination andcross-examination evidence from eightadministrators and faculty members and viewedhundreds of exhibits over four days (27-28October 2003, 15-16 January 2004) and heardclosing arguments on 2 February. Closingarguments reiterated the opening statements,with the addition of summaries of the witnesstestimony. The arbitration decision was releasedon 18 February 2004, ruling in favor of the FAon all counts, reiterating the role of the FA assole bargaining agent for faculty at UBC andfinding that UBC improperly negotiatedcontracts as a term and condition of coursedesign. Second, Dorsey found that "when Dr.Bryson was removed by Dr. Gaskell inNovember 2002 from the assignment… thedecision to remove her was punishment for herrefusal to agree to work under terms differentfrom those in the collective agreement" (Dorsey,2004, p. 96). Dorsey explained the intricate webof social relations created within the METcontract system:

The outcome changed copyright ownership.It created a limitation on academic freedom.It granted the employer a previously non-existing right under the collective agreement


47

or prior DE&T agreements to act "in itsdiscretion" to "decide which of the materialscontributed by the Author it will use." Itcreated a new remuneration for teachingwork by introducing potential futurepayments to be negotiated and otherunspecified compensation (Section 7.2 and11). It introduced methods of evaluation thatmight conflict with the evaluation processand methods in the collective agreement. Itintroduced a dispute resolution process aliento the collective agreement and LabourRelations Code. (p. 93)

In its entirety, Dorsey's report is alandmark award for academic labor. "We arethrilled by the decision," exclaimed theCanadian Association of University Teachers(CAUT) President Victor Catano. "The decisionidentifies copyright ownership as an inherentright of faculty, ties that ownership to academicfreedom, affirms the role of associations innegotiating intellectual property rights withuniversity administrations and upholds in nouncertain terms the right of faculty to defend thecollective agreement. This is a remarkableachievement" (quoted in CAUT Bulletin Editors,2004, p. A1). Rights, the CAUT (2001, p. 3)affirms, "protect academic freedom."

In addition to the "Teacher’s Exception,"the Bryson v. MET arbitration award is the bestlegal ruling university teachers have to tieacademic freedom to IPRs and oversight overcourses (see Triggs, this issue of Workplace).Ruling in favor of course ownership foracademics, Dorsey concluded: "In the universityemployment context, because of the importanceof the expression of ideas to academic freedomand the presumptive first ownership of copyrightin faculty, issues related to copyright are part ofthe core relationship between the employer andemployee. They are part of the conditions ofemployment" (p. 88).

Catano noted that the coercion andtroubles Dr. Bryson confronted "are becomingincreasingly common at universities and collegesin Canada as pressure grows fromadministrators, politicians and business people totreat scholarly work as industrial product. Weare challenging this trend at the bargaining tableand in the political arena. This decision gives our

efforts an important legal boost" (quoted inCAUT Bulletin Editors, 2004, p. A6).Anticipating an appeal by UBC, Dr. Bryson'sreaction was measured: "The litigation process isinherently demanding… If this decision can beused as part of a broader campaign to defendacademic freedom, then the trouble has beenworth it" (p. A6).

From Appeal to Digital Diploma MillWithin three weeks of the Bryson v.

MET award, UBC's legal counsel submitted anappeal to the BC LRB. With contracts for eightMET courses already signed and four courses inthe works, the Faculty of Education wasreluctant to comply with the award. Thirteenfaculty members and DE&T instructionaldesigners had signed contracts by this time but afew questioned their legality given Dorsey'sdecision that the means with which signatureswere acquired contravened the Collect iveAgreement. The FA took a position that as aresult of Dorsey's ruling, "any existing METcontracts between UBC and individual membersmust be considered null and void" (Wieland,2004, p. 2). With promises made to Tec deMonterey in the institutions' agreement, FoEadministrators were intent on delivering IPRs fornew courses under development. In the FoEDean's Advisory Committee (DAC) meeting on17 March, an allusion was made to "non-precedent setting agreements with the FA inorder to meet the needs of the MET program"(DAC, 2004a, p. 3). UBC preferred a quicksolution to the IPRs for MET courses, but theFA noted that IPRs were interconnected withother terms and conditions in the MET contract,such as academic freedom, dispute resolution,performance evaluation, and remuneration(Wieland, 2004). With an appeal issued, therewas no chance of productive, collectivenegotiations. The FA was willing to negotiateonce the appeal was withdrawn or put inabeyance. As the FA lawyer wrote in response tothe appeal, UBC "cannot, and must not, simplydisregard an order of this Board because itbelieves it will ultimately be successful on areconsideration application" (Black & Blendell,2004b, p. 4).

The FoE, however, faulted the FA fordragging its heals and otherwise forged ahead on


48

several fronts. DAC Minutes were circulatedwith an advisory to move ahead with METcourse design: "The Faculty Association hasrefused to discuss any way of proceeding withthe development of MET courses as long as theuniversity continues its appeal but as the Facultycan’t wait six to twelve months for this to beclarified so the Faculty is moving ahead with thedevelopment of the courses that are allocated fornext year" (DAC, 2004b, pp. 6-7). In the workswas a new graduate program, with the HongKong Institute of Education (HKIE), patternedon the MET program. Two MET courses forwhich UBC had acquired contracts weretransferred into the UBC-HKIE program. Forone of the courses (ETEC 532), the originaldesigners were neither consulted nor invited toteach. A core course from the Department ofCurriculum Studies (CUST) was scheduled forredesign and automation against pronouncedresistance from faculty members (CUSTMinutes, 2004). New online courses werescheduled, with the workloads for design andteaching given to assistant professors and DE&Tinstructional designers. EPLT hired its owninstructional designer, who began to redesign theFoE's print-based correspondence courses.Meanwhile, UBC placed the appeal in abeyancein September 2004, but after stalled negotiationswith the FA, followed through with the appeal inmid February 2005. The case was drawn backinto the legal system with UBC's counselrequesting a new Arbitrator, claiming thatDorsey provided a biased, unfair hearing.

A new Arbitrator was appointed to hearthe BC LRB appeal over three days in June 2005(6-7 and 20 June). Teams similar to thoseassembled for the arbitration squared off at theappeal hearing, but this time without testimonycoming from witnesses. UBC's lawyer openedby pointing out that Dorsey erred in extendingthe scope of the FA's exclusive bargainingagency to IPRs. He reiterated over and over thatthe FA "has never bargained IPRs… has not, bychoice, negotiated IPRs." This went to the heartof Dorsey's decision that IPRs, as terms andconditions of employment, are well within thebargaining rights of the FA, whether or not itchooses to exercise this particular right at thebargaining table. Issues of work product, theUBC lawyer emphasized, are beyond the union's

bargaining agency. Acknowledging thatconditions of work, or inputs (e.g., wages,benefits, credentials), were within the scope ofthe FA's bargaining authority, he stressed thatthe work product was not (Roper & McFarlane,2004b, 2004c). Backed up by a weightyarbitration award, the FA lawyer merely workedto contradict the components of the appeal.

LRB Vice Chair G. J. Mullaly (2006)delivered an appeal decision on 28 February2006. He upheld the Dorsey arbitration award onall counts, reinforcing, in legal terms, thestipulation of copyright as a term and conditionof employment, the right of faculty associationsor unions to bargain IP on behalf of theirmembers, the intricate interdependenciesbetween the academic exception and academicfreedom, and the right of faculty members torefuse direct negotiations with administratorsover terms and conditions of employment.Mullaly asserted that implied agreements andcustom, such as the academic exception in thiscase, are as effective as written contracts. Thisagain was an extremely significant decision foracademics.

Of course, legal proceedings drawn outto this magnitude over academic freedom, courseIPRs, and conditions of work and work productdo not create a white-collar factory, per se.However, the power relations invariablymarking these types of proceedings derive fromconditions conducive to the maintenance ofdigital diploma mills. As an artifact of conflictamong capital, labor and management, the METprogram is a textbook example of the automationof higher education. The automation of C&Iinvolves, among other processes, alienation,deskilling (semi-skilling), displacement of laborby capital, endless iteration and customization,operator overload, systemic surveillance, andstandardization.7 These types of processes are

7 What actually gets automated? Acourse, for all intents and purposes, among otherthings, consists of material artifacts created forits operation (e.g., examples, exams, lecturenotes, media, readings, syllabus). First, theexchange or transmission of these artifacts,transformed into digital data, is automated.Courseware automates the exchange of images,texts and sounds for continuous consumption


49

common to automation, be it of manufacturing,banking, C&I, design, health care, or library andoffice work, albeit to different degrees andeconomies of scale. The MET program providesa model for exploring these processes in theautomation of C&I in higher education.

A large percentage— 82% of METcourses (53 out of 65 sections)— are taught bysessionals or adjunct, part-time (PT) labor. TheMET course sections are capped at 24 students,with most sections running with about 20students. Labor is displaced in this case. In theaggregate across 22 sections per year, METoperates with a higher students per instructorratio than is sustainable in F2F graduateprograms. Full time professorial labor isdisplaced, with the MET program operating withmany fewer FT faculty (i.e., 18% of the total)than found in F2F graduate programs. One mightargue that this is more a function of abureaucratic division of labor specific to and reproduction at the push of a button, 24x7.Second, a wide range of administrative (e.g.,grouping, marking) and C&I knowledge andskills (e.g., emphasizing, pacing, presentation,responding, scoping, sequencing) used everydayby teachers are automated. Through WebCT orsimilar courseware (e.g., Blackboard), theautomation of these skills regretfully (andinvariably) facilitates surveillance. WebCT andother courseware are not empty media or shells,waiting for content; WebCT is always already arich expression of someone's (e.g., MurrayGoldberg) idea of an automated educationalenterprise. WebCT is already rich in intellectualnuance, content and ideas. Third, the emotionallabor that goes into the course by way ofinterests, passions and the everyday economy ofrewards is automated. The automation ofemotional labor is nearly as popular in computerscience as artificial intelligence. Fourth, thepersonal knowledge of instructors is automated,as each course has a character that is regeneratedwithin the proceedings of the course, and in thereproduction of the course. The young Marx hasmuch to say about alienation in this form ofautomation. Once the course is designed,mechanisms of automation are in place for anindeterminate amount of time. See also d eCastell, Bryson & Jenson, 2002.

research universities rather than a residue ofautomation.

Deski l l ing has a lways beencontradictory within automation (e.g., Blauner,1964), and education is no exception. In the1960s, when computer-based education was inan incipient stage (Noble, 1991), critics of theautomation of education noted that the newtechnologies separated curriculum frominstruction, thus tending to deskill teachers.Curriculum design skills shifted to instructionaldesigners, which was a new and high growthoccupational title at the time, resulting in whatsome would argue were characteristically mixedeffects of automation (Petrina, 2004b; Spenner,1983, p. 825).

Less than half of the course designers(11 of 24) to date were FT faculty (Table 1), andone-third of MET sessionals had no formal inputinto the design of the courses. Design-wise, eachsection of the MET program's courses is areproduction of, or nearly identical to, theoriginal. One form of deskilling here is theseparation of curriculum design from instruction,but this process is not specific to either FT or PTfaculty. With this level of standardization,curriculum design skills shifted to DE&Tinstructional designers who necessarilydeveloped skills necessary for coursewareprogramming. DE&T instructional designersplayed a major role in designing most of thecourses and have varying design roles in all ofthe sections. One counter-balance to thedeskilling argument is that MET instructors areupskilled in honing techniques for teaching inS2S virtual environments, perhaps confirming amixed effects thesis of automation.

Workplace: A Journal for Academic Labor 2005, Vol. 7 : 1 (November): 39- 50

Table 1. MET Course Designers, 3 October 2005Course Designer(s)* Contract

ETEC 500 Prof Assoc Prof √ETEC 510 Assoc Prof DE&T Director √ETEC 511 Prof DE&T Asst Director √ETEC 512 PT Sessional DE&T Designer √ETEC 520 DE&T Director DE&T Designer √ETEC 521 Assoc Prof DE&T DesignerETEC 522 FT Sessional PT Sessional √ETEC 530 Asst Prof DE&T DesignerETEC 531 Assoc Prof PT SessionalETEC 532 Assoc Prof FT Sessional √ETEC 533 Asst Prof Asst ProfETEC 540 Asst Prof DE&T Designer √

*Females = 29%, Males = 71%

To be sure, the sessionals who teach inthe program have high levels of expertise andthe issue is not competence. The quality of theeducation the students receive is debatable,given that the sessionals have no time to pursuetheir research and can hardly be expected tobring this to bear on their teaching. The FA'sposition is that administrators are exploiting PTlabor instead of creating FT faculty positions and

paying fair wages. As an indicator of hiringpractices, the Department of Curriculum Studies(CUST), which accounts for eight of the elevenFT faculty who have designed or taught in theMET program, has sustained increasing graduateenrollments and stagnation in FT appointmentsonly by exploiting the PT labor pool (Figure 1).There are similar trends across the FoE (Barman,et al, 2005, p. 30).

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Figure 1. CUST Graduate Enrolments and FT Faculty, 1995 – 2004. *(CUST currentlyhas four faculty members on FT administrative leave)


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MET sessionals work without basicsupport and for a piecemeal wage of $220 (CD)per student.8 When necessities, such as officespace, a monthly photocopy allocation, and aphone budget were requested, the METCoordinator asserted that these niceties areunnecessary for S2S courses (Gaskell, 2005).Laptop and workstation requests were similarlydenied. After calculating the time that METsessionals spend in attending to the everydaydemands of S2S courses, remuneration forteaching MET courses disintegrates into theaverage national minimum wage ($7.30 perhour) or worse.9 Generally assigned to multiplesections but only one course in the program, anumber of MET sessionals attempt to cobbletogether a living by migrating from one onlineprogram to another in Canada, as the virtual andblood and flesh version of what Jane Jacobs(2004) calls "gypsy faculty" (Kubacki, 2005).10

8 As indicated, the $220 piecemeal wage

derives from Dr. Bates' calculations for DE&Ttutors and was recommended in the METBusiness Plan (Bartolic-Zlomislic & Bates,1999a; Bates & Miller, 2001) and is in the FA &UBC's Collective Agreement, section titled"Tutors in Distance Education and Technology."The Collective Agreement stipulates a $53 perstudent credit salary with a course load of 30.7students. Multiply this by three (3 credit courses)and you get $4,881, a fairly arbitrary wage. Thedefense of the piecemeal wage is that DE&T andMET sessionals can make more per course thanFoE F2F sessionals receive (3,048 per 3 creditcourse on step 1 of scale).

9 Research, anecdote and narrativesoverwhelmingly report significant increases inworkload for S2S courses. See AFT (2000),McKenzie, Mims, Bennett & Waugh (2000),Lenz, Jones & Monaghan (2005), Weiner (2000)and Young (2002).

10 Over the three years (2003-2005) ofthe MET program, there was one full-time,tenure track appointment, which wasadministrative, i.e., for the MET Coordinator'sposition. When the first MET Coordinator wasappointed to Associate Dean of EPLT in January2003, the new Coordinator took over, butresigned from the appointment after eightmonths.

The MET sessional wage is the lowest in BC,and in order for sessionals to feel fairlycompensated, administrators have to drive upenrollments or the sessionals have to recruit andmaintain high enrollments, toward unsustainablenumbers. A MET sessional has to bear theburden of not just X, but X + Y, numbers ofstudents to feel properly remunerated. From anadministrator's standpoint on piecemeal wages,the most efficient or entrepreneurial sessionalswill be properly rewarded— in other words,those who can reduce the work (e.g., emails,assignments, discussions, etc) feel appropriatelycompensated (e.g., DiBiase, 2004; Ragan &Terheggen, 2002). Total enrollments for theprogram have well exceeded the MET BusinessPlan projection (Bates & Miller, 2001) (Table2).

Table 2. MET Enrollment, 1 March 2005Program Male Female Total

MET 76 76 152TBDL Certificate* 16 16 32TBLS Certificate* 4 1 5Total 96 93 189

*Certificate programs are 15 credits and eithercombine or ladder into a MET degree.

In the old days of correspondence anddistance education, professors believed theywere extending the university to the masses inlighthouses, on islands, and farms andcommunes "off the grid." Today, onlyinternational market expansionists use or fall forthis access romanticism of "borderless"education; others face the fact that more banaljustifications effect enrollments: (1)administrative desires to exploit investments incapital and infrastructure for S2S education, (2)administrative desires to reduce vehicular trafficand address facility space and occupancylimitations on brick-and-mortar campuses, and(3) "net-generation" student desires for isolated,albeit connected and flexible, S2S interfaces."The Creative Use of Learning Technologies" inhigher education amounts to little more than this(ACCULT, 2000). DE&T uses 47% as a figureto estimate delivery costs of S2S versus F2Fcourses and programs (Oslington, 2004;Qayyum & Bourlova, 2004). Figures such asoverall costs of $2,000 to $5,000 per student for


52

S2S courses versus $10,000 to $12,000 perstudent for F2F courses are common. At UBC,this figure has a second implication for tuitionfees of master's programs, considering MET feesare set at $12,750 for the program (includes 2%increase beginning January 2006) (fee for tencourse program) and F2F Master of Arts andMaster of Education fees at $10,614 (fee for twoyear program). Models redirecting 10,000students to S2S courses predict 20% fewer peakhour trips to campus and more occupancy

flexibility for UBC's 500 F2F classrooms(Bourlova, 2005, p. 40). About 54% of allDE&T students are local to the Vancouver andlower mainland area (Bourlova, 2005, p. 21).This figure is a fair estimate for MET, wherefewer than 10% are Mexican or Tec deMonterey students. While 26% of the instructorsfor the 65 sections taught from 2003 to 2005were female (Figure 2), there is nearly a balanceof female and male students (Table 2).

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Figure 2. Total MET Course Designers and Instructors, by Sex

Profit margins increase as enrollmentincreases. Tuition revenues from the currentcohort of the MET program will be about $2.13million. 11 Salary expenditures for course designand teaching will be around $543,224 for thiscurrent cohort.12 Design costs will fall off tominor maintenance investments for the nextcohort. Technology expenses, such as servershoused in DE&T for the WebCT software are

11 Derived from the $12,500 tuition fee

(10 courses) and a March 2005 enrollment of152 full-time students and 37 part-time(certificate) students (Figure 3).

12 Total teaching cost 543,224. Totaldesign cost is $122,124. (FT faculty = $7,500per course) (DE&T and sessional designer =$3,048 per course).

minimal and course are being migrated to centralIT Services. Neither FT nor sessional facultywas given hardware or software, but a fewcomputer systems were purchased foradministrative use. The staff necessary foraccounting, advising, record keeping, andstudent inquiries have salaries at least partiallycovered within the EPLT service unit. Asindicated (see note 4), profits are not reinvestedin the program, either through capital for facultyor FT appointments. In other words, theoverhead costs and expenditures on top ofsalaries are minimal. During the Bryson v. METarbitration and appeal, the UBC lawyer (e.g.,Roper & McFarlane, 2004b, p. 2) repeatedlynoted that there was $2 million invested into theprogram, but this figure reflects UBC'saccounting practice of one cost recovery unit oncampus (DE&T) charging another (EPLT). Atthe same time, the university has enjoyed rathersteady increases of revenue since the late 1990s,partially from investments, licensing deals, andreal estate, and partially from revenue-generating programs such as MET (Figure 3).


53

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Figure 3. Total UBC Revenues, 1999-2005

On occasions, the EPLT Associate Deannoted that the language of automation does notapply to online courses and e-learning (e.g.,Gaskell, 2003). It has always been more pleasantto put a happy face on automation and, ofcourse, white-collar professionals are seeminglyabove or beyond (i.e., post) automation. Forgetthe days when "educational technologies" were"just a tool." These are the corporate campus-friendly days of "learning technologies." Insteadof automation or anything distasteful to describeprevalent aspects of e-learning, "ultimately,"says The Conference Board of Canada (Murray,2003, p. 38), "for both employer and employee,technology is just an enabler."

ConclusionIn a postmodern form of self-mockery,

the now infamous University of Berkeley digitaldiploma mill exclaims on its homepage:"Success in measured in DEGREES." Blamedfor inflating the qualifications market andswelling an overproduction of advancedcredentials by manufacturing over 12,500Master and Ph.D. degree graduates, theUniversity of Berkeley shamelessly capitalizeson the University of California, Berkeley'sreputation (Goral, 2006). In this context,administrators, faculty members, instructionaldesigners and lawyers building and anxiouslymaintaining digital diploma mills are products oftheir times (de Castell, Bryson & Jenson, 2002).

Certainly, one does not have to turn to for-profiteducation to explain how (and why) digitaldiploma mills (don't) work.

E-learning as e-commerce requiresstable course management systems (e.g.,Blackboard, Moodle, WebCT) for theautomation of C&I, secure databasemanagement systems (e.g., MySQL, Oracle) forthe automation of financial transactions andregistration, and the acquisition of copyrights orlicenses to legally deploy or transfer C&I fromprogram to program, market to market, and ofcourse from institution to student. Credentialismand desires for mobility partially underwritedemands in an unpredictable economy markedby corporate collapse, dangerously highconsumer and government debt, and globalthreats to flows of assets, commodities andcapital. Supply is partially underwritten by anupswing of investment and speculation in agrowth e-learning industry, reduction of publicfunding for education and increasedcommercialization, corporatization, andprivatization of social services, erosion of thetenure system, and turn from FT tenure trackjobs to a burgeoning, surplus academic labormarket (Aronowitz, 2000; Peters, 2002; Polster,2000, 2001; Shumar, 2004; Waks) (see alsoPetrina & Weir, this issue of Workplace).

The analysis of the MET program, takenas a case in point, indicates that conflict anddisputes among capital, labor and management


54

are generated at all nodes in the e-learning-commerce complex. Noble (2002) and others(e.g., Apple, 1991; Guernsey & Young, 1998)documented and predicted the types of disputesprevalent in the MET program and proliferatingwithin academia. The workings of digitaldiploma mills are socially significant matters.These disputes over academic freedom and IPRsare disputes over the purpose of the universityand throw into question commitments to a freecirculation of knowledge in the public interest.More specifically, much of the conflict withinthe university at this time is between the marketand the public domain (Drache, 2001).

On one hand, proprietary interests inpublic knowledge (e.g., courses, research, etc.),whether enforced by administrators or faculty,restrict "the fair interaction between personsconsidered in their equal capacity as authors"(e.g., teacher, researcher, etc.) (Drassinower,2003, p. 122). The university's qua employer's(or publisher's) proprietary rights claimsseverely limit the scholar's choice to share workscreated through her or his labor and freelycirculate them in the public domain. In effect,academic freedom is eroded as proprietaryinterests regulate the scholar's social compactwith the public trust. One promisingreaffirmation of the public domain came inSeptember 2002, when the MassachusettsInstitute of Technology's (MIT) Opencoursewaresite was launched to freely circulate courses; inresponse, a number of universities followed suit(Young, 2005).

On the other hand, conditions fortransgressions against proprietary interests,whether in the form of P2P exchanges, researchdata reproduction, software bootlegging, orcourse counterfeiting, are established through abourgeois legal system of protection that bothadministrators and faculty are wont to enjoy(Conley, 1990; Philip, 2005). Would be authorsamong authors— disenfranchised intellectuallaborers— who transgress authority and propertyare marginalized or prosecuted as "pirates" and"scavengers." Both administrators and faculty,Conley (1990) suggests, uphold the "originalauthor" "as one who brings to life an importantnew work, while the author-user is continuallyrelegated to the position of a nonproductiveinterloper," or worse (p. 26). As Philip (2005)

explains, geographic and neoliberal politics,animating both administrators and faculty, parcelout unacceptable from acceptable forms ofauthorship and create pirates out of would beauthors who, in reclaiming culture, rights, etc.,"threaten to invert power relations throughappropriating things less tangible than ships" (p.199). When we fail to recognize that pirates' andscavengers' demands are more often aboutredistributions of money, power and rights thanauthorship or ownership, open access and opensource disintegrate into another perniciousindulgence to "let them eat data" (Bowers,2000).

In 1964, Mumford described the"automation of knowledge" with acuity, andcautioned against automated courses, with "theircybernetic apparatus, their computers, their TVsets and tape recorders and learning machines,their machine-marked yes or no examinationpapers"— "the human personality disturbs thiscomplex mechanism which operates increasinglyas a single unit and can be managed efficientlyonly by remote control under centralizeddirection" (p. 15). Now, imagine either a body ora bot that crawls the library, cybrary or web,accumulates curriculum and produces a feworiginal files at essaygenerator.com that fitwithin preset parameters, mixes or organizes itall into a sequential format for exchange andinteraction over some duration of time, andeventually creates an outline with a syllabusgenerator. Imagine that the curriculumassembled has various sources, all of whichretain various attributes. At this point, we canagain ask, what is an automated course author?

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Documents

How (and why) Digital Diploma Mills (don't) Work: Academic ......education began in 1917 with vocational courses for returning soldiers, and correspondence education expanded to secondary