Bad News from Berkeley

I hardly know where to start with U.C. Berkeley’s new campus policy on Course Note-Taking and Materials. Perhaps with “Why We Have This Policy”:

The Course Note-Taking and Materials policy is intended to (1) protect instructors’ copyrights and the integrity of their intellectual property in the context of twenty-first century learning, commercial, regulatory, and technological environments; (2) restrict commercial note-taking services to those authorized by the campus; and (3) hold members of the campus community and commercial vendors responsible for complying with the policy.

I would have thought that the most important goals of a policy on course notes would be to facilitate good teaching and effective learning. And then, in that context, perhaps copyright might come up as a way to encourage professors to develop good course materials, or to help enforce the policy. But no. The copyrights come first, and the pedagogy not at all. It appears that the university cares more about the “integrity of [professors’] intellectual property” than about academic integrity.

The actual substantive policy is about what you would expect, given this framing. Students may not share notes with anyone except their classmates without the instructor’s permission. They may not record a class without the instructor’s written permission. And commercial uses of course notes are strictly prohibited.

There are reasonable enough principles behind these rules. Indeed, there are strong legal reasons, as well: California state law prohibits the sale of course recordings and course notes without the university’s permission. But the absoluteness of the actual policy is chilling. There is no recognition that fair use and other legal doctrines will sometimes give students every legal right to take notes and share them.

Worse, there’s no consideration of the moral principles that ought to limit these limits on course notes. Here’s what the policy has to say for itself about the educational process:

The University of California, Berkeley encourages students to take notes in class and other instructional settings as part of their education. Note-taking is a means of recording information and helps students absorb and integrate what they learn. Note-taking or other recording of an instructor’s presentation can also facilitate further discussion of the material with students and the instructor.

What a sadly impoverished view of the mission of the university this is! What happened to creating an academic community whose members debate matters of truth, beauty, and justice outside the classroom as well as inside? What happened to the transmission of knowledge through society? And what happened to creating a well-informed citizenry whose engagement with learning makes them effective participants in our democracy? These are the kinds of values that are served by the flow of wisdom, and they are values that Berkeley’s new policy simply ignores.

This is not to say that course materials are fair game for free reuse by anyone, or that course notes must always flow freely. Far from it. As a casebook author, I know from personal experience just how much work goes into making useful course materials. An outline bank in the hands of an exclusive student group can become a tool of inequality. And recording a class — especially in secret — can be terribly disruptive to what is supposed to be a safe and welcoming space for discussion.

These are not the concerns at work in Berkeley’s new course notes policy. It is driven by intellectual property, pure and simple. Berkeley could perhaps give an account of itself that provides academically responsible justifications for its rules. But this it has not done. Consider the responsibilities of individual faculty members:

  • Accept responsibility for knowing, disseminating, and following this policy and its procedures.
  • Take appropriate steps to protect their intellectual property rights.

I would have thought that a teacher’s first duty would be to set an appropriate policy on class notes for her class in light of her learning objectives. Instead, it’s her job to tell students about the dire consequences of sharing what they’ve learned with others. And the language of that second bullet is unfortunate: it verges on telling professors they’re doing something actionable if they don’t copyright their lectures to the hilt.

And then there is this:

Policy Issued: November 21, 2011
Effective Date: September 1, 2011

There’s nothing like a little retroactive lawmaking to set a good example for students.

The policy is accompanied by an educational site for instructors. It is both better and worse than the policy itself. On the “better” side of the ledger, it has a clear and straightforward explanation of Creative Commons licenses. On the “worse” side, there is this suggested text to share with students:

You are a member of an academic community at one of the world’s leading research universities. Universities like Berkeley create knowledge that has a lasting impact in the world of ideas and on the lives of others; such knowledge can come from an undergraduate paper as well as the lab of an internationally known professor. One of the most important values of an academic community is the balance between the free flow of ideas and the respect for the intellectual property of others. Researchers don’t use one another’s research without permission; scholars and students always use proper citations in papers; professors may not circulate or publish student papers without the writer’s permission; and students may not circulate or post materials (handouts, exams, syllabi—any class materials) from their classes without the written permission of the instructor.

The paean to research is admirable, if slightly misplaced: the university is as much about the dissemination of knowledge as its creation, and it is the former that the policy concerns itself with. And even the “balance” metaphor is reasonable enough: peer review, for example, acts as a serious but eminently justifiable check on the “free flow of ideas.” But then there is the conflation of the norms of academic integrity with the law of intellectual property, and the utter confusion that follows. This is not how one teaches students to understand either the norms or the law: they will leave Berkeley with a muddled sense of both.

This is not a large issue, in the scheme of things. Berkeley’s educational mission is under far more threat from California’s budget crunch than from the course-notes policy. Indeed, this is a university that has wrestled with much larger issues of academic freedom. But this ought to have been an easy case, one in which adverting to academic principles was both obvious and obviously right. Their absence is telling. A university that cannot articulate its basic values is a university in trouble.

My memory of my college days is that if a student was out sick for a day or two, he or she could borrow notes from a fellow student to help catch up. Which this policy explicitly allows. The students are also allowed to ask the instructor about sharing notes for other purposes. This policy seems merely to discourage commercial use of the instructor’s lectures. Really, what’s the huge issue here? Aside from your not liking how the university worded their notice?

James, there’s even more from Berkeley. The College of Engineering apparently demanded that student-hosted archives of previous exams be removed. (They could only repost them individually if they had the specific permission of the professor.)

The College apparently made this demand just a few days ago. Right as students are preparing for finals…

Frances, as I made quite clear, my problem is not with the policy so much as with the fact that the University of California, Berkeley seems to have forgotten that it is a university.

Cathy, I have some sympathy for restricting exam archives. There can be good educational reasons to do so. Creating well-calibrated objective questions is a lot of work, and professors are able to set better exams if they can reuse questions that they have tested and refined over multiple terms. I’m especially bothered by private archives (like many law reviews and fraternities have been known to keep) that are open only to members of a group, not to all students. I would want to know more about the College of Engineering’s policy and the archives before weighing in on this specific case.


I recall bans against posting old exams from my college days. The professors wanted to recycle old exam questions without having questions and answers pre-memorized by the next group of students. Making students do their own reviews of the course materials and write their own answers to exam questions is furthering learning, not otherwise.


As far as I can tell, you are merely objecting to the fact that UC Berkeley neglected to put the politic phrase “of course, the primary purpose of taking class notes is to facilitate learning” in their announcement. What, exactly, do you think they are forbidding that is a problem?


Also, university professors are not free of financial needs and goals. Textbooks (and other books not formally texts that are used for courses) can be very profitable. Academic papers on original research can garner not only prestige but job security (otherwise known as tenure), which is a financial goal. There is no reason why a professor should do the considerable work of putting together a course, and writing lectures, only to have them commercially exploited by someone who did not do the work, but merely recorded the lecture.

Educational and financial goals not only can, but do, go hand in hand. Just as artistic and financial goals can, and do, go hand in hand. A creator of any kind of work is not required to sacrifice other foals to meet financial ones, nor to sacrifice financial goals to meet “higher” goals. People don’t do things to achieve only one purpose.

Apparently, for California universities anyways, the development of policies along these lines has been a contentious issue for quite some time. This law review article gives a decent history:

Charles P. Nash, On the Ownership of Academic Presentations: The Evolution of California Education Code Sections 66450-66452, 35 McGeorge L. Rev. 205 (2004).

At minimum the exam archive issue is odorous because it (a) appears to constitute a change in previous policy (even if the policy existed previously, this seems to be the first time it has been enforced), (b) at the worst possible time, and (c) with no discussion as to whether it is actually appropriate. Perhaps reasonable minds can disagree with whether students should have access to them (personally I’ve been in educational environments where we were in fact ENCOURAGED to look at previous exams, which usually were bound and stored in the library) but this order, as I understand it, and given the timing, seems to be driven by the same copyright-uber-alles ethos behind the note-taking one.

Unfortunately I don’t have the original communication from the College. What I do have is some panicked communication by the affected students, who clearly regard the archives as important educational resources.

This is reminiscent of a 2006 letter sent by the University of Southern California’s “deputy chief information officer” to all incoming freshmen. Warning students against sharing files on the internet, the letter gave a flatly false description of copyright infringement (failing to explain educational and fair use exceptions, for example), it threatened “legal sanctions” and loss of privileges, and it contained the revolutionary assertion that the University’s “purpose is to promote and foster the creation and lawful use of intellectual property.” Cory Doctorow posted the letter here, with annotations.

A training institution that was paying good money to a professor to develop a complex course, would not want a competing training institution to be able to teach the same ‘course notes’ using a relatively low paid tutor.

However I would have thought that sort of senario would be already covered , no?