It's a small world, after all

Academe, Jul/Aug 1999 by Alger, Jonathan R

IF YOU HAVE EVER BEEN TO A Disney theme park, chances are that one of the tunes you've heard over and over in your head long after your visit is the simple, repetitive melody of "It's a Small World." Its irrepressible message serves as a metaphor for global changes affecting every aspect of our lives, including the law and higher education.

Faculty members in the United States long assumed that the safeguards for their most fundamental rights and interests-such as academic freedom and shared governance-were grounded in federal and state law as well as in the culture and professional standards of American higher education. Those safeguards, however, may be threatened by global forces. In recent years, American lawyers and professors have relied on the U.S. Constitution and other federal laws as models in working with emerging democracies to shape new systems of government and higher education. This "internationalization" of law is now proving to be a two-way street in higher education, as developments abroad are having an increasing impact on faculty members in the United States. The worldwide revolution in information and communications technology has dramatically altered the ways in which faculty members conduct their teaching and research. Technological innovations have created exciting new educational possibilities, but they have also undermined long-held assumptions that have shaped the laws applicable to faculty roles and responsibilities.

For example, the delicate balance in American law protecting the intellectual property rights of creators and users is threatened in a brave new world in which virtually every kind of creative work, research project, or data can easily be disseminated online at any stage of development. New international treaties have attempted to clarify intellectual property rights in the face of technological advances. Now Congress has been called on to implement these treaties by translating them into legally binding standards here at home.

In the meantime, large corporations have recognized that they can use technology to capture and package information and data for competitive advantage and profit. Faculty members in the United States are both creators and users of intellectual property, and they have historically relied on the carefully balanced "fair use" doctrine under American law for their own teaching and research. Their voices can easily be lost in this cacophony of large and powerful international and corporate interests.

The rapid international growth of the Internet has also led to cumbersome and often impractical federal and state laws attempting to restrict the flow of information deemed "sensitive." Examples include regulation of material that might be considered obscene or unfit for minors, as well as limitations on the posting or use of encryption technology for reasons of national security. Faculty members are in the forefront of legal challenges to these laws, which are not always crafted carefully enough to protect the use of such material for legitimate educational purposes.

Threats to cherished faculty freedoms can also arise from the internationalization of universities themselves. For example, some universities have developed distance-education programs reaching beyond national borders by working in conjunction with multinational corporations. These partnerships may create powerful incentives to impose topdown corporate forms of governance in the ostensible pursuit of efficiency and profit. The legal standards applicable to such ventures are ill defined, and faculty members have reason to doubt that multinational corporations will fully appreciate and respect traditions of academic freedom and shared governance.

How can faculty members embrace the pedagogical opportunities created by these global forces while preserving their most basic intellectual freedoms? How can they respond to international pressures from sources that may not share a cultural or legal commitment to principles of academic freedom in teaching and research? Carefully constructed contracts provide one triedand-true method that may be more readily adaptable to changing circumstances than federal or state statutes. Contracts can be used to clarify and make legally binding the rights and responsibilities of individuals and entities from different countries, and they can be drafted to account for the laws of various jurisdictions.

Much of the rest of the world studies American law and precedents. Academics and attorneys in this country must now pay attention to developments beyond their own borders if they hope to understand and address legal challenges in higher education.

Jonathan Alger is AA UP counsel.