Mooc Copyright

7/27/2019 Mooc Copyright

1/6

educause.edu

Copyright Challenges in a MOOCEnvironment

E

D

U

C

A

U

S

E

BRIEF

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 CopyrightConcerns

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 Summary

The 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 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.
http://creativecommons.org/licenses/by-nc-nd/3.0/http://creativecommons.org/licenses/by-nc-nd/3.0/


2/6

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 com-

bine original faculty-developed content with

third-party content (additional readings,

media clips, photographs, quotes from othersources, 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,

reframesthe 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 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 expertiseand 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 toconsider include:

Faculty swirl. What happens when a

faculty member leaves the college or uni-

versity? Who owns the MOOC and its

contentthe faculty member, the insti-

tution, or the platform provider? In a

traditional environment, copyright pol-

icies are generally well developed and

clearthe copyright for the course and

its content typically belongs to the pro-

fessor. Do these same policies apply toMOOCs?

Implications of institutional contribution.

If the institution provides significant insti-

tutional resources and infrastructure (a

videographer, for example) to develop a

MOOCas opposed to providing those

resources for the same or a similar on-

campus coursedoes that change the

ownership equation? Can the institution
http://www.aaup.org/faculty-rights-and-responsibilities-distance-learning-2000http://copyright.columbia.edu/copyright/2012/11/09/moocs-distance-education-and-copyright-two-wrong-questions-to-ask/http://copyright.columbia.edu/copyright/2012/11/09/moocs-distance-education-and-copyright-two-wrong-questions-to-ask/http://www.aaup.org/faculty-rights-and-responsibilities-distance-learning-2000


3/6

educause.edu 3

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 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 aMOOC 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 classroomenvironment, 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 Students

Traditionally, students own content theycreate in courses and throughout their aca-

demic 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 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 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-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

whatthey want with theusers 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.
http://www.acenet.edu/the-presidency/columns-and-features/Pages/Legal-Watch-Who-Owns-Your-MOOCs.aspxhttp://www.acenet.edu/the-presidency/columns-and-features/Pages/Legal-Watch-Who-Owns-Your-MOOCs.aspxhttps://github.com/audreywatters/learnersrights/blob/master/bill_of_rights.mdhttps://github.com/audreywatters/learnersrights/blob/master/bill_of_rights.mdhttps://github.com/audreywatters/learnersrights/blob/master/bill_of_rights.mdhttps://github.com/audreywatters/learnersrights/blob/master/bill_of_rights.mdhttp://www.acenet.edu/the-presidency/columns-and-features/Pages/Legal-Watch-Who-Owns-Your-MOOCs.aspxhttp://www.acenet.edu/the-presidency/columns-and-features/Pages/Legal-Watch-Who-Owns-Your-MOOCs.aspx


4/6

educause.edu

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 Provider

Providers 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 todays 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 interestscommercial or educational.

The Case against Fair Use

Educational use of copyrighted materials is

one fair use factor, but courts look at all fourfactors 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 Use

Institutions 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 Factors

Title 17, U. S. CodeSection 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 nonprofiteducational 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
http://www.educause.edu/blogs/cheverij/moocs-and-intellectual-property-ownership-and-use-rightshttp://www.copyright.gov/fls/fl102.htmlhttp://www.copyright.gov/title17http://www.copyright.gov/title17http://www.copyright.gov/fls/fl102.htmlhttp://www.educause.edu/blogs/cheverij/moocs-and-intellectual-property-ownership-and-use-rights


5/6

educause.edu 5

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 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 copy-righted 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 con-

tent in a MOOC.

Whats Next?

Everyone EDUCAUSE interviewedsaid 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

stakeholderslibrarians and campus copyright

experts, general counsel, instructional/curricu-

lum designers, provosts, tech transfer offices,

faculty, studentswhen 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 likelybecome 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 competingcopyright 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-cieseven for the same course.

Understand that a host of questions dont 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
http://copyright.columbia.edu/copyright/2012/11/09/moocs-distance-education-and-copyright-two-wrong-questions-to-ask/http://copyright.columbia.edu/copyright/2012/11/09/moocs-distance-education-and-copyright-two-wrong-questions-to-ask/


6/6

educause.edu

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

CarolinaChapel 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.
http://www.educause.edu/eli/events/eli-online-seminar-fair-use-physical-and-digital-campushttp://www.educause.edu/eli/events/eli-online-seminar-fair-use-physical-and-digital-campus

Documents

Mooc Copyright