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The Rights Question

Who owns intellectual property in the brave new world of MOOCs?
University Business, May 2013

Disputes over intellectual property (IP) rights have been around as long as faculty members have been producing ideas. Whether it’s a cure for a disease, a textbook, or even a syllabus, ownership and IP rights are dictated by a policy at every college and university in the United States.

The consensus at most institutions is that either faculty members own their ideas and license an institution to use them, or, in some cases, an institution owns anything produced with its campus resources and licenses it to faculty. But when distance education took off in the 1990s, faculty and administrators started to think a little more about who owned course work. There was the potential for exposure and profit, but for the most part, the audience was still confined to an institution’s own students. Flash forward to 2013 with massive open online courses, or MOOCs, just a year old, and higher education has a new IP debate on its hands.

“MOOCs are making it different for the first time,” says Sean Brown, vice president of education at Sonic Foundry, a lecture-capture company. “There is a sense, for lack of a better phrase, of a direct market now.” In the past, debate over who owned a syllabus or even an online course was much more limited in scope because there wasn’t a real market for it.

Now, with the disruptive force and explosive growth of MOOCs, online courses could become akin to televised sports and applied research, with a serious emphasis on who owns—and who should profit from—the content. Here are four discussion-opening questions about intellectual property rights today.

What’s fair to use?

In 1991, eight book publishers successfully sued Kinko’s Graphics Corporation for copyright infringement for photocopying materials from various sources to create college course packs, an act Kinko’s argued fell under the “fair use clause” of the 1976 Copyright Act. The court disagreed and Kinko’s was forced to pay $2 million in damages, court fees, and other costs—meanwhile changing the way those in higher education think about fair use.

The old battles over copyright and fair use are taking place today in the new arena of online learning. Universities were defendants in two recent copyright lawsuits over digitizing content. While the results seem to favor institutions, it’s not clear if content used in a classroom or an online course would be considered fair use once that content is disseminated to thousands of people around the world, as would be the case in the MOOC format, says Kevin Smith, director of the office for copyright and scholarly communications at Duke University.

“Fair use is an issue there because things that we could do in classrooms without even thinking about raise copyright concerns when you have such a huge audience and anyone can enroll,” he says.

In Cambridge University Press v. Becker, filed in 2008, Georgia State University was sued by Cambridge University Press, Oxford University Press, and Sage publications for scanning books and making them available to its students through the library’s e-reserves system, an act the publishers said was a “systematic, widespread, and unauthorized copying and distribution of a vast amount of copyrighted works.” In May 2012, the U.S. District Court in Northern Georgia held that only five of the 100 items were copyright infringements. In December, the publishers decided to appeal.

In another case, AIME et al. v. Regents of UCLA et al., the Association for Information Media and Equipment had sued the University of California, Los Angeles because its leaders felt the institution infringed copyright by ripping DVDs to create a digital stream, which was then made available through a closed course management system to students in a particular class.

UCLA claimed that this was no different than the fair-use exception in copyright law that allows showing a movie in a classroom. In March 2011, a judge dismissed the case for lack of standing, since the AIME didn’t actually own the copyrights it was defending.

“The judge said that she thought the fair-use argument was plausible. If you come home late at night with some excuse and your parents say, ‘well, that’s plausible,’ you don’t know if you’re being punished or not,” says Smith. “There’s a lot of interest at universities in doing that sort of thing, but real uncertainty about where the law stands.”

Who owns a MOOC?

As with anything where ownership comes into play, conflict already has developed over MOOC ownership. On March 5, the faculty union at the University of California, Santa Cruz sent a letter to the institution highlighting concerns that the university’s recent contract with MOOC provider Coursera, could undermine faculty members’ IP rights to their lectures.

“In 2000, CUCFA, (the Council of University of California Faculty Associations), successfully lobbied for legislation establishing that individual professors, and not the University, own the intellectual property in their live performances and course materials,” professor Shelly Errington, a union chair, wrote in a letter to Renée Mayne, UC, Santa Cruz’s senior labor relations administrator.

“The effect of this legislation is to treat the recording and reuse of courses in the same manner as other forms of faculty publication, and to establish that the University has no more right than a note-taking service or a student with a video camera to publish our courses without explicit written consent,” Errington wrote. “Viewed within this legal framework, the contract template faculty will be expected to sign before their courses can become available on Coursera appears to put the UCSC campus in the position of becoming the publisher of this material on Coursera and other platforms.”

In her letter of reply, Mayne wrote that while the union’s concerns were understandable, “any online platform that SCFA  [Santa Cruz Faculty Association] members can avail themselves of is strictly voluntary and within his or her own right to license their work. ...There is no requirement that an SCFA member participate in these new options for teaching.”

The University of Michigan’s contract with Coursera states, “All right, title, and interest in and to Content created by Instructors or the University and provided to Company under this Agreement and all Intellectual Property Rights relating thereto will remain with the applicable Instructor and/or University.”

Likewise, edX does not make agreement with professors with respect to IP; those agreements are between faculty members and their institutions, says Dan O’Connell, a company spokesperson.

Despite the neutrality of the contracts, some loss of control is implied.  The University of Michigan contract with Coursera states the “University authorizes Company to make enhancements to the Content in the form of translations, adaptations, captioning, encoding, transcripts, or video annotations produced in response to accessibility requests.”

What’s particularly worrisome to some faculty is this loss of control and the fact that courses could potentially be revised, says Cary Nelson, an English professor at the University of Illinois, who served as president of the American Association of University Professors from 2006 to 2012. When a professor creates a syllabus, he or she has a thesis for the course. If lectures are added or cut, faculty members can discover that the course is now pushing an agenda they don’t even believe in, he says. “Signing away the rights to a course disenfranchises you from potential profits and raises the possibility that you will lose control over the content. That’s excruciatingly painful to faculty.”

Another layer of the issue is the time it takes to create a MOOC, compared with teaching a lecture or discussion course that’s captured for an institution’s own students.

“The amount of time it takes to create not just an acceptable MOOC, but a really good one, is awesome,” says Nelson. “It involves hundreds of hours. This increases faculty conviction that they should own them.”

Who will profit?

While the open and accessible nature of MOOCs is part of their current mystique, they likely won’t be free forever—and many in higher education predict someone will start to profit within the year.

The for-profit providers Coursera and Udacity have taken steps in that direction. In late 2012 and early 2013, both companies partnered with the American Council on Education to have certain courses verified for college credits. And in January, San Jose State University (Calif.) announced a 300-student trial run deal to jointly offer three $150 courses with Udacity.

The language in the Coursera contract indicates possible monetization models—a clear sign that MOOCs are going in that direction. The University of Michigan contract states, “As between Company and University, Company will be responsible for monetizing and otherwise generating revenue from the offering of such courses through the Platform and collecting such revenue. All such revenue collected by Company will be shared between Company and University. ... University shall be responsible for any further sharing of any such sums received by University with Instructors or other third parties pursuant to University’s agreements with such third parties.”

The contract also calls out eight possible monetization strategies, from paid tutoring to sponsorships.

The contracts imply the company and the university will eventually profit, but what about instructors? Right now, most MOOCs are treated as work-for-hire where the professors agree to teach a MOOC for an up-front fee, says Nelson. After that, the content is out of their hands, so if a financially viable business model comes into play, the arrangements don’t necessarily suggest the instructor who made the MOOC would get any further compensation, he says. This is why he believes the shift toward MOOCs becoming a profit-making vehicle gives faculty members another reason not to sign over their rights to the content.
“If 50,000 students are enrolled in a course, even paying $10, that’s $500,000. You’re getting into real money, real fast,” he says. “That’s a really major revenue stream, and for the faculty member to get a few thousand dollars when the university gets hundreds of thousands is an unfair distribution.”

Why have a policy?

Having a policy is, of course, one way to resolve conflict, says Smith, the copyright director at Duke.

“In this case, I think when instructors are thinking about doing something as new as a MOOC, they recognize immediately that there are a lot of issues it raises around intellectual property and they want to know before they commit to it what they can use in a course and what happens if they want to put it on another platform.”

He says institutions, including his own, are in the process of figuring out what their IP ownership policies should be. Duke launched its first MOOCs last fall, and the university’s board has been meeting since then to talk about what’s changed and how to interpret the current IP policy in the age of MOOCs, conversations Smith says are nearly complete.

With schools that have been involved with MOOCs for 18 months, some might ask why every institution doesn’t have a concrete policy yet. But Smith points out that universities have been teaching for 500 years and have had a long time to figure out what works in traditional formats.

“Eighteen months is not a long time to have come to terms with the really, really new environment that MOOCs have created,” he says. “There’s tremendous promise in this model, but it’s too early to even expect that the issues would be settled.”