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Copyright Challenges in a MOOC Environment

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©2013 EDUCAUSE. The text of this EDUCAUSE brief is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives license.

Massive open online courses (MOOCs) appear in multiple conference programs, swell the literature on

teaching and learning, and dominate discus-sion on many campuses. Many educational institutions are offering MOOCs, which suggests their emergence as a disruptive technology in teaching and learning.

Over time, academic institutions, faculty, and students themselves will determine the evolution, direction, viability, and value of MOOCs, including such issues as cre-dentialing and/or receipt of academic credit. In the short term, MOOC providers have specific issues to address, includ-ing the development and use of creative content facilitated by the technology. Important intellectual property (IP) ques-tions include:

� What copyright considerations affect MOOCs?

� Are technology transfer issues at stake?

While online and distance learning have been around for a number of years, the scale and delivery of MOOCs present new copy-right challenges. Lacking definitive answers, asking the right questions will go a long way in ensuring informed development of MOOCs.

MOOC Stakeholders and Copyright Concerns

To gain insight into the copyright concerns of MOOC stakeholders, EDUCAUSE talked with CIOs, university general counsel, provosts, copyright experts, and representatives from other higher education associations. Their views inform this report.

Executive SummaryThe intersection of copyright with the scale and delivery of MOOCs highlights the enduring ten-

sions between academic freedom, institutional autonomy, and copyright law in higher education.

To gain insight into the copyright concerns of MOOC stakeholders, EDUCAUSE talked with CIOs,

university general counsel, provosts, copyright experts, and representatives from other higher

education associations. The consensus was that intellectual property questions for MOOC content

merit wide discussion because they affect multiple stakeholders and potentially carry significant

consequences. Each MOOC provider, for example, establishes a proprietary claim on mate-

rial included in its courses, licenses to the user the terms of access and use of that material, and

establishes its ownership claim of user-generated content. This conflicts with the common insti-

tutional policy approach that grants rights to faculty who develop a course. Fair-use exceptions

to traditional copyright protection face challenges as well, given a MOOC’s potential for global

reach. Nonetheless, fair use and MOOCs are not mutually exclusive ideas. MOOCs remain an

experiment. Initiating discussions with a wide range of campus stakeholders will ensure clarity of

purpose and a common understanding of copyright issues in a MOOC environment.

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The FacultyTraditionally, most faculty members have

developed and delivered their own courses and thus have had an interest in ownership rights to their work. Courses usually com-bine original faculty-developed content with third-party content (additional readings, media clips, photographs, quotes from other sources, etc.). Typically, educational insti-tutions offer these courses as face-to-face, online, or hybrid classes to a defined group of students who have registered, been authenti-cated, and have a specific affiliation with the college or university. In this model, copyright issues are fairly well known, with appropriate policies in place, and copyright law provides guidance. However, a MOOC course disrupts these “traditional” characteristics and hence the common understanding of how copy-right applies to courses.

Under the tenets of academic freedom, and according to the American Association of University Professors (AAUP) statement on faculty rights and responsibilities in dis-tance learning, professors most often own the rights to the courses and materials they develop, modify, and teach unless a specific agreement with the institution indicates oth-erwise. With a MOOC, the institution might contribute significant infrastructure and pro-duction investments. For many MOOCs these include instructional design, material devel-opment, videography, and additional teaching assistants, to name just a few. Substantial institutional investments in courses compli-cate course ownership questions.

Kenneth Crews, director of the Copyright Advisory Office at Columbia University, reframes the common question “Who owns the copyright for an online course?” by sug-gesting that a more useful question might be “How can we best allocate and manage rights in our online course?”

For commercial MOOC providers, and increasingly for campuses, course content is potentially profitable. For example, a spe-cific MOOC course developed and taught by a professor at a particular college could be used by other colleges and universities through the MOOC provider. This raises other ownership rights questions for faculty and the institution. When faculty members

publish books, institutional policies gen-erally permit contracts directly between the faculty member and the publisher, and royalties go to the author. MOOCs, how-ever, are generally based on agreements between the institution and the platform provider. Faculty may or may not profit from their intellectual contribution to the course. (MOOC provider Udacity employs the book publisher model in agreements with individual faculty members.) It remains an open question whether—and how—this model will adapt to institutional assertions of course ownership based on extensive investments in course development.

The InstitutionEvery college or university distinguishes

itself not only by its historical and cultural reputation but also by its faculty expertise and instructional offerings. MOOCs “unbun-dle” institutional value, providing access to star faculty and to learning experiences pre-viously available only to those who have an affiliation with the institution. In the age of the MOOC, managing the institutional brand takes on new urgency, presents new challenges, and becomes a critical area for IP issues. Institutions experimenting with MOOCs must simultaneously try to understand and address these issues and challenges.

From an institutional standpoint, issues to consider include:

� Faculty swirl. What happens when a faculty member leaves the college or uni-versity? Who owns the MOOC and its content—the faculty member, the insti-tution, or the platform provider? In a traditional environment, copyright pol-icies are generally well developed and clear—the copyright for the course and its content typically belongs to the pro-fessor. Do these same policies apply to MOOCs?

� Implications of institutional contribution. If the institution provides significant insti-tutional resources and infrastructure (a videographer, for example) to develop a MOOC—as opposed to providing those resources for the same or a similar on-campus course—does that change the ownership equation? Can the institution

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exert a greater ownership claim? According to Ada Meloy, general counsel for the American Council on Education (ACE), “The law considers the extent to which an institution’s resources contributed to a faculty member’s output; because of the greater degree of reliance on these resources in the MOOC context, an institu-tion may have a greater claim to the course and its content.”

� The role of the technology transfer office. Although most institutions have copyright policies in place, the scope and reach of a MOOC warrant a broader campus discussion. Might campuses need to talk to their technology transfer offices about these copyright concerns? Typically, tech transfer offices have not been involved in the complexities and subtleties of course copyright, but in a MOOC environment the prospect of prof-iting from course content and influencing brand identity likely make this office a stakeholder.

� Third-party copyright clearance. Institutions (as well as faculty and stu-dents) must ensure that the use of copyrighted materials in any course is either authorized by the copyright owner or falls under fair use. What fell under fair use in a traditional classroom environment, however, might not apply to a MOOC. Similarly, licensing agree-ments for the use of third-party content in a traditional course need to be revis-ited for MOOC versions of the same course. Obtaining rights clearances for MOOC courses can be time-consuming and potentially expensive, but this is an important part of course development.

The StudentsTraditionally, students own content they

create in courses and throughout their aca-demic careers. MOOC students, however, might not be considered students in the institution’s sense of the word; they do not receive academic credit, do not pay regular tuition (if any), and may not have matric-ulated with an academic institution. Yet individuals enrolled in MOOCs often sub-mit assignments and participate in chat and

discussion sessions. Who owns that con-tent? Does the institution have an interest in protecting MOOC student–generated work? Should it?

Students may be unaware of the ownership implications when they submit content to a MOOC. User agreements—standard on every MOOC platform—generally give the provider rights to license and redistribute user-gener-ated content, often in perpetuity. An example of a standard agreement (wording is basically the same across platforms) illustrates the point:

By submitting or distributing User Postings to the Site, you hereby grant to [provider] a worldwide, non-exclusive, transferrable, assignable, sublicensable, fully paid-up, royalty-free, perpetual, irrevocable right and license to host, transfer, display, per-form, reproduce, modify, distribute, redistribute, relicense and otherwise use, make available, and exploit your User Postings, in whole or in part, in any form and in any media formats and through any media channels (now known or hereafter developed).

In other words, by participating in a MOOC the user agrees to grant the plat-form provider a sweeping license to do what they want with the user’s content. A useful 2013 document, A Bill of Rights and Principles for Learning in the Digital Age, emphasizes students’ IP rights in an online learning environment, including MOOCS. It states:

Students also have the right to cre-ate and own intellectual property and data associated with their participa-tion in online courses. Online programs should encourage openness and shar-ing, while working to educate students about the various ways they can pro-tect and license their data and creative work. Any changes in terms of service should be clearly communicated by the provider, and they should never erode the original terms of privacy or the intellectual property rights to which the student agreed.

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What role do colleges and universities have (or want to have) in decisions about student ownership of their MOOC-generated intellec-tual property?

The Platform ProviderProviders generally have an interest in

recouping and multiplying their investments, as well as extending their brand. Because of this, providers may seek comprehen-sive licensing rights to course content. A brief comparison of the Terms of Service for Coursera, edX, and Udacity revealed licens-ing language that colleges and universities should carefully evaluate before signing on. In a nutshell, each provider establishes its own proprietary claim on its material, licenses to the user the terms of access and use of that material, and establishes its ownership claim of user-generated content.

Institutions should be thoughtful and cau-tious about licensing terms, given the central role that creating and sharing knowledge plays in the teaching and learning mission. In today’s remix learning culture, what would it mean for users to have to give up their IP rights to participate in a MOOC? What hap-pens when sharing is restricted? Current licenses suggest that the platform provid-ers are proprietary about the rights both to their content and to user-generated con-tent. MOOC licenses, to date, blur the lines between traditional educational values and commercial enterprise.

What about Fair Use?Experts provide passionate arguments on

both sides of the fair-use question, depending on their interests—commercial or educational.

The Case against Fair UseEducational use of copyrighted materials is

one fair use factor, but courts look at all four factors when deciding fair-use cases (see the sidebar). Ease of distribution in MOOCs chal-lenges the fair-use four-factor test, so faculty might need to change their syllabi and way of teaching to use content in a MOOC course. Consequently, instructors might rely more heavily on licensing of course materials they want to use, diminishing the force of the fair-use exception granted for educational use.

To minimize their own liability, platform pro-viders are shifting responsibility for copyright compliance to faculty, whether obtaining permissions to use copyrighted materials or obtaining substitutes when permission is not granted. The time required to obtain these permissions is an additional burden for the course developer.

Some of the people EDUCAUSE inter-viewed felt that technology could be used (and already is emerging) to “catch” copy-right infringers. This approach could adversely affect perceptions of academic freedom, which depends on the principles of free inquiry and expression that fair use enables. It could serve the interests of copy-right holders, while appearing punitive and discouraging to users relying on a general understanding of fair use in choosing content.

Others interviewed felt that MOOCs were yet another effort by content owners and platform providers to “simplify” the copy-right world in order to control content use and to profit from any use.

The Case for Fair UseInstitutions and faculty are generally more

cautious about fair use in a MOOC course, given its potential for global reach; publish-ers might balk at granting global rights to their material. Those interviewed who are most intimately involved with copyright issues (i.e., copyright experts and campus general

Four Use FactorsTitle 17, U. S. Code Section 107 of the U.S. copyright law lists the four use factors:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

2. The nature of the copyrighted work

3. The amount and substantiality of the portion used in relation to the copy-righted work as a whole

4. The effect of the use upon the potential market for, or value of, the copyrighted work

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counsel) generally believe that fair use and MOOCs are not mutually exclu-sive ideas and that fair use is viable in a MOOC environment. Each interviewee felt that campus conversations need to take place that involve a thoughtful discussion about fair use in a MOOC. Fair use follows the teaching and learn-ing mission of courses, and MOOCs offer a renewed opportunity to con-sider pedagogical goals. The question for course developers is, why use this material? MOOCs give campuses rea-sons to reconsider the pedagogical use of resources, encouraging the question “How central is this particular resource to what I want to accomplish in the class?”

Fair use will likely be applied in a more intentional fashion in MOOCs than in traditional, closed classroom environments. Those interviewed advised using brief quo-tations specific to a discipline and using material in a “transforma-tive” way. As Kenneth Crews wrote, the question shouldn’t be “Does fair use allow me to cut and paste and include a variety of materials into my online course?” Rather, ask what the options are for including copy-righted works in an online course. He suggests that a suite of options, including fair use, open-access works, Creative Commons–licensed work, public-domain resources, and permissions to use licensed content will provide the richest course con-tent in a MOOC.

What’s Next?Everyone EDUCAUSE interviewed

said that MOOCs remain an experi-ment. Inherent in any experiment are unknowns, questions, and few easy answers. Policies are still being devel-oped. However, initiating discussions with a wide range of campus stake-holders will ensure clarity of purpose and a common understanding of copyright in a MOOC environment.

Key Points When Considering a MOOC � Draw on and engage the strengths of campus stakeholders—librarians and campus copyright experts, general counsel, instructional/curricu-lum designers, provosts, tech transfer offices, faculty, students—when developing policies.

� Develop tools and strategies to educate stake-holders about copyright considerations in a MOOC, including ownership rights and use of content. Copyright fluency has perennially posed challenges among faculty and students generally, and a MOOC environment heightens the need for copyright education specifically.

� Acknowledge that copyright permissions for MOOCs will require institutional commit-ment, time, and resources to obtain rights clearances and that a combination of copy-right options, including licensing, will likely become more prevalent.

� Mitigate risks by addressing copyright and rev-enue sharing in a reasonable and equitable manner, developing clear policies about the rights of faculty and of the institution. With their requirement for substantial institutional investments in content creation on one side, and their aspiration of future revenue on the other, MOOCs demand clear policies about rights and who determines them.

� Think through the potentially competing copyright claims and joint ownership situa-tions involved in a MOOC. Already existing online course development practices might change in the complex IP environment of a MOOC.

� Specify in the contract with the provider that if the MOOC makes money, royalties will be shared. Also specify student ownership of content they create.

� Recognize that different course delivery methods will require different copyright poli-cies—even for the same course.

� Understand that a host of questions don’t have answers yet, and many issues concern what is right versus what is legal.1

� Institutions need to help educate faculty and others involved in developing MOOC courses, as well as students, about copyright issues.2

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ConclusionMOOCs present complex copyright ques-

tions that can challenge the relationship between the institution and its faculty and students. Creation of and/or participation in MOOCs do not always fit comfortably within the terms of standard institutional policies. Involving all stakeholders in open and flexible discussions should enhance the development of a shared copyright vision in the emerging MOOC environment for the greater benefit of higher education today.

AcknowledgmentsMany thanks to the following people

for sharing their professional expertise on MOOCs and copyright/IP:

� William Baeslack, Case Western Reserve University

� Kenneth Crews, Columbia University

� James Hilton, University of Michigan (University of Virginia at the time of the interview)

� Laura Gasaway, University of North Carolina–Chapel Hill

� Lev Gonick, Case Western Reserve University (as of as of July 1, 2013, CEO of OneCommunity)

� Michael Tanner, Association of Public and Land-grant Universities

� Madelyn Wessel, University of Virginia

Notes1. For example, a faculty member devel-

ops and offers a MOOC course, but she is now leaving the institution. The policy says that the institution can still offer this course, but is it right to do so? According to James Hilton, the issue is one of faculty roles: the “authoring” versus the “offer-ing” faculty. MOOCs optimize a “develop once, deliver often” instructional model that can be antithetical to faculty and institutions that prize change, currency, and individualization.

2. Professional associations often offer edu-cational sessions; for example, ELI has scheduled an online seminar, “Fair Use on the Physical and Digital Campus,” on September 16, 2013.