By Ada Meloy
The availability and reach of massive open online courses (MOOCs) continues to increase seemingly by the minute, so it’s an opportune time to consider: Who owns the intellectual property that drives them? The short answer is, it depends, but the best way forward may be to make sure that everyone’s rights are protected.
The very nature of MOOCs tends to thwart the usual categories of higher education. Even among other non-campus-based learning systems, MOOCs’ open-access policy, their no-fee or low-fee cost structure, their disconnection from academic credit, and their unlimited enrollment make them seem like an entirely new species of postsecondary education. Despite their newness—MOOCs began in 2008, and have only gained significant popularity within the past year—the idea of delivering specialized knowledge to a mass of people can be traced to mail-correspondence courses of the late 1800s.
Distance learning programs—broadly defined as any course not providing face-to-face instruction—have forced innovative and creative applications of intellectual property law since the advent of those first correspondence courses.1 The scale and delivery methods of MOOCs further compound many of these same intellectual property issues. The higher education community has struggled with adapting classical intellectual property law principles to this fast-changing area of academia. Indeed, the intersection of MOOCs and intellectual property reflects the enduring tensions between institutional autonomy, faculty academic freedom, student privacy, and the law.
The Parties and Their Interests
Faculty members, as course content designers and deliverers, have a natural interest in securing rights to the materials they create. Faculty members may devote significant time designing new courses offered exclusively through the MOOC platform or adapting an existing campus-based course to the MOOC platform. The American Association of University Professors has long held that absent a specific agreement between faculty and their university, under principles of academic freedom professors have the right to develop course content and materials and to own any intellectual property they create.2 Although it is not uncommon to see litigation over the ownership of a patentable invention, universities have rarely sought to exert ownership over materials professors produce during the course of their teaching, including textbooks, scholarly articles, and course content. The few court cases that address this narrow issue have held that faculty members retain rights to scholarly materials they produce.3 Given an academic custom of faculty ownership over course content based on notions of academic freedom, universities may be advised to tread carefully when seeking to exert ownership in courses offered on the MOOC platform.
The College or University
The higher education institution often serves as the identifying brand attracting students to a unique selection of courses. In the event of a faculty member’s departure, an institution has an interest in offering that same course, whether in the campus-based or the MOOC context. In the MOOC context, because of the massive audience of students, an institution may have a greater incentive to preserve its brand identity and the courses that constitute that identity.
Courses and course content deployed over a MOOC platform may be distinct from campus based learning programs. Typically, faculty-taught courses fall outside the work-for-hire doctrine of copyright law where the employer owns an employee’s creations.4 But there are some circumstances in which course content might be appropriated to the institution. If the institution provides the faculty member with the title of the course, required reading and assignments for students, and a course syllabus, essentially treating the faculty member as a “conveyor” of information to a mass of people, then the online course and its content may not belong to the professor. Even in the situations where a faculty member develops a MOOC course, he or she may rely more heavily on institutional resources than when creating a campus-based course, a scholarly publication, or a textbook. For example, the faculty member may need to make great use of a unique technology infrastructure and administrative support. 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 institution may have a greater claim to the course and its content.5
Institutions should also ensure that they are authorized to use all third-party materials used in a MOOC. The fair use of copyrighted materials by third parties in an educational setting is a complex issue. Application of the fair use doctrine varies based on a series of factors, including how the third-party materials are displayed and whether they are used in a classroom setting or over the Internet. In order to comply fully with the law and to safeguard against claims of copyright infringement, institutions may choose to consult legal counsel.
Students taking a MOOC often submit homework assignments and other documents as part of the course’s requirements. Traditionally, students in campus-based courses retain ownership of that which they produce under principles of academic freedom. With MOOCs, however, course takers may not be considered “students,” but rather as “users,” as they do not receive academic credit or pay tuition and are not enrolled at the institution offering the course. Because of these factors, an institution may not have an interest in user-generated work, but may be advised to be aware of a MOOC’s user agreement with course takers when deciding to offer a course on a MOOC platform.
Course takers typically sign an agreement with a MOOC provider when registering for a course; these agreements indicate to what extent the MOOC provider holds an interest in usergenerated work. Some user agreements indicate that the course taker retains ownership rights but gives the MOOC provider a license to use and redistribute this content. Early in 2013, a group of educators drafted a document titled A Bill of Rights and Principles for Learning in the Digital Age.6 This document sets out broad standards focused on student privacy, access, academic freedom, and intellectual property for the higher education community to abide by in the MOOC context. It supports course takers’ ownership of their work. Still, it remains to be seen how MOOC providers and institutions integrate some or all of these guidelines into their policies and agreements.
Harmonizing Competing Interests
Relationships Between Institutions of Higher Education and Their Faculties
Given the interests that both an institution and its faculty have in a MOOC’s content, institutions may choose to engage in a collaborative discussion with faculty to explore claims of ownership. Just as MOOCs are designed to serve a unique student audience, the unique dynamic in each particular institution should shape the arrangement with faculty members. One size does not fit all! Institutions can look at current policies addressing intellectual property in the context of course content and engage with faculty to explore how well those existing policies may apply to courses offered on a MOOC platform. Since both institutions and faculty members have interests in course content, addressing only campus-based courses and ignoring the MOOC phenomenon may lead to unsettling disagreements. When forming policies or agreements, institutions and faculty may consider issues such as the uniqueness of the course being offered, commercialization rights, categories of course materials, institutional customs and norms, and the underlying interests of all stakeholders. In some cases, an institution may be hesitant to assert ownership of a course and its content: The institution might be implicitly adopting a faculty member’s statements and opinions.
Relationship with the MOOC Provider
MOOC providers may have an interest in monetizing their investments in their platforms and brands. To that end, MOOC providers may seek extensive licensing rights to course content. Institutions should ensure that their agreement with a MOOC provider appropriately safeguards the interests of the institution, its faculty, and its students.
MOOCs present complex—and sometimes novel—questions of intellectual-property law principles and the relationship between an institution and its faculty and students. Each has an interest in ownership of courses and course content, with underlying interests in respective facets of academic freedom and privacy issues. An open dialogue with input from both administration and faculty should enhance development of a shared vision for an emerging educational model and its beneficial effects on higher education in the 21st century.
1 For example, the early distance learning programs were unsure to what extent the common law doctrine of fair use and the Copyright Act of 1909 applied to them. Section 110 of the Copyright Act of 1976 authorized to distance programs some of the privileges of campus-based classroom usage and performance of original works.
2 American Association of University Professors (2000), “Faculty Rights and Responsibilities in Distance Learning,” available at: http://www.aaup.org/faculty-rights-and-responsibilities-distance-learning-2000.
3 See Weinstein v. University of Illinois, 811 F.2d 1091 (1987) (holding that faculty members own a copyright interest in their scholarly articles, even when considering the university’s representations and an institutional culture encouraging faculty to write such articles).
4 Ibid.; see also William A. Kaplin & Barbara A. Lee, The Law of Higher Education, §18.104.22.168, (4th ed. 2007).
5 Carol A. Twigg (2000), Who Owns Online Courses and Course Materials? Intellectual Property Principles for a New Learning Environment. The Pew Learning and Technology Program. Center for Academic Transformation at Rennselaer Polytechnic Institute.
6 A Bill of Rights and Principles for Learning in the Digital Age, available at https://github.com/audreywatters/learnersrights/blob/master/bill_of_rights.md.
Ada Meloy is the general counsel of the American Council on Education. She acknowledges the contributions of Jason K. Lewis, legal intern at ACE and law student at Washington University in St. Louis, to the preparation of this article.