BRIEF

E D U C A U S E

Copyright Challenges in a MOOC Environment

Executive Summary
The intersection of copyright with the scale and delivery of MOOCs highlights the enduring tensions 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 signicant consequences. Each MOOC provider, for example, establishes a proprietary claim on material 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 conicts with the common institutional policy approach that grants rights to faculty who develop a course. Fair-use exceptions to traditional copyright protection face challenges as well, given a MOOCs 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.

assive open online courses (MOOCs) appear in multiple conference programs, swell the literature on teaching and learning, and dominate discussion 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 credentialing and/or receipt of academic credit. In the short term, MOOC providers have specific issues to address, including the development and use of creative content facilitated by the technology. Important intellectual property (IP) questions include:

What Are

copyright considerations affect MOOCs? 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 copyright challenges. Lacking denitive 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.

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

The Faculty

Traditionally, most faculty members have developed and delivered their own courses and thus have had an interest in ownership rights to their work. Courses usually combine original faculty-developed content with third-party content (additional readings, media clips, photographs, quotes from other sources, etc.). Typically, educational institutions offer these courses as face-to-face, online, or hybrid classes to a dened group of students who have registered, been authenticated, and have a specic 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 copyright 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 distance learning, professors most often own the rights to the courses and materials they develop, modify, and teach unless a specic agreement with the institution indicates otherwise. With a MOOC, the institution might contribute signicant infrastructure and production investments. For many MOOCs these include instructional design, material development, videography, and additional teaching assistants, to name just a few. Substantial institutional investments in courses complicate 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 suggesting 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 protable. For example, a specic 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 generally permit contracts directly between the faculty member and the publisher, and royalties go to the author. MOOCs, however, are generally based on agreements between the institution and the platform provider. Faculty may or may not prot 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 whetherand howthis model will adapt to institutional assertions of course ownership based on extensive investments in course development.

The Institution

Every college or university distinguishes itself not only by its historical and cultural reputation but also by its faculty expertise and instructional offerings. MOOCs unbundle institutional value, providing access to star faculty and to learning experiences previously 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 university? Who owns the MOOC and its contentthe faculty member, the institution, or the platform provider? In a traditional environment, copyright policies are generally well developed and clearthe copyright for the course and its content typically belongs to the professor. Do these same policies apply to MOOCs? of institutional contribution. If the institution provides signicant institutional resources and infrastructure (a videographer, for example) to develop a MOOCas opposed to providing those resources for the same or a similar oncampus coursedoes that change the ownership equation? Can the institution

Implications

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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 institutions resources contributed to a faculty members output; because of the greater degree of reliance on these resources in the MOOC context, an institution 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 profiting from course content and inuencing brand identity likely make this office a stakeholder. copyright clearance. Institutions (as well as faculty and students) 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 agreements for the use of third-party content in a traditional course need to be revisited 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.

discussion sessions. Who owns that content? Does the institution have an interest in protecting MOOC studentgenerated work? Should it? Students may be unaware of the ownership implications when they submit content to a MOOC. User agreementsstandard on every MOOC platformgenerally give the provider rights to license and redistribute user-generated 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, nonexclusive, transferrable, assignable, sublicensable, fully paid-up, royaltyfree, perpetual, irrevocable right and license to host, transfer, display, perform, 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 platform provider a sweeping license to do what they want with the users 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 create and own intellectual property and data associated with their participation in online courses. Online programs should encourage openness and sharing, while working to educate students about the various ways they can protect 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.

Third-party

The Students

Traditionally, students own content they create in courses and throughout their academic careers. MOOC students, however, might not be considered students in the institutions sense of the word; they do not receive academic credit, do not pay regular tuition (if any), and may not have matriculated with an academic institution. Yet individuals enrolled in MOOCs often submit assignments and participate in chat and

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

Four Use Factors

Title 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 nonprot educational purposes 2. The nature of the copyrighted work 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole 4. The effect of the use upon the potential market for, or value of, the copyrighted work To minimize their own liability, platform providers 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 interviewed felt that technology could be used (and already is emerging) to catch copyright 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 copyright 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 copyright world in order to control content use and to prot from any use.

The Platform Provider

Providers generally have an interest in recouping and multiplying their investments, as well as extending their brand. Because of this, providers may seek comprehensive licensing rights to course content. A brief comparison of the Terms of Service for Coursera, edX, and Udacity revealed licensing 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 cautious about licensing terms, given the central role that creating and sharing knowledge plays in the teaching and learning mission. In todays remix learning culture, what would it mean for users to have to give up their IP rights to participate in a MOOC? What happens when sharing is restricted? Current licenses suggest that the platform providers are proprietary about the rights both to their content and to user-generated content. 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 interestscommercial or educational.

Educational 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 challenges 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 fairuse exception granted for educational use.

The Case against Fair Use

The Case for Fair Use

Institutions and faculty are generally more cautious about fair use in a MOOC course, given its potential for global reach; publishers 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

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counsel) generally believe that fair use and MOOCs are not mutually exclusive 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 learning mission of courses, and MOOCs offer a renewed opportunity to consider pedagogical goals. The question for course developers is, why use this material? MOOCs give campuses reasons 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 quotations specic to a discipline and using material in a transformative way. As Kenneth Crews wrote, the question shouldnt 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 copyrighted works in an online course. He suggests that a suite of options, including fair use, open-access works, Creative Commonslicensed work, public-domain resources, and permissions to use licensed content will provide the richest course content in a MOOC.

Key Points When Considering a MOOC

Draw

on and engage the strengths of campus stakeholderslibrarians and campus copyright experts, general counsel, instructional/curriculum designers, provosts, tech transfer offices, faculty, studentswhen developing policies. tools and strategies to educate stakeholders about copyright considerations in a MOOC, including ownership rights and use of content. Copyright uency has perennially posed challenges among faculty and students generally, and a MOOC environment heightens the need for copyright education specically. that copyright permissions for MOOCs will require institutional commitment, time, and resources to obtain rights clearances and that a combination of copyright options, including licensing, will likely become more prevalent. risks by addressing copyright and revenue 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. through the potentially competing copyright claims and joint ownership situations involved in a MOOC. Already existing online course development practices might change in the complex IP environment of a MOOC. in the contract with the provider that if the MOOC makes money, royalties will be shared. Also specify student ownership of content they create. that different course delivery methods will require different copyright policieseven for the same course. that a host of questions dont have answers yet, and many issues concern what is right versus what is legal.1 need to help educate faculty and others involved in developing MOOC courses, as well as students, about copyright issues.2

Develop

Acknowledge

Mitigate

Think

Specify

Whats Next?

Everyone EDUCAUSE interviewed said that MOOCs remain an experiment. Inherent in any experiment are unknowns, questions, and few easy answers. Policies are still being developed. However, initiating discussions with a wide range of campus stakeholders will ensure clarity of purpose and a common understanding of copyright in a MOOC environment.

Recognize

Understand

Institutions

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Conclusion

Lev

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

Gonick, Case Western Reserve University (as of as of July 1, 2013, CEO of OneCommunity) Tanner, Association of Public and Land-grant Universities Wessel, University of Virginia

Michael

Madelyn

Notes
1. For example, a faculty member develops 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 offering 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 educational sessions; for example, ELI has scheduled an online seminar, Fair Use on the Physical and Digital Campus, on September 16, 2013.

Acknowledgments

Many thanks to the following people for sharing their professional expertise on MOOCs and copyright/IP:
William

Baeslack, Case Western Reserve University Crews, Columbia University Hilton, University of Michigan (University of Virginia at the time of the interview) Gasaway, University CarolinaChapel Hill of North

Kenneth James

Laura

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