MOOCs, Distance Education, and Copyright: Two Wrong Questions to Ask

The rapid rise of MOOCs has rejuvenated conversations about copyright and the development of distance education programs.  Copyright long has been a challenge for distance learning, and the vast scale of MOOCs escalates the importance of addressing the law in a most thoughtful and creative manner.  Hundreds of thousands of students are now enrolling in courses with prominent professors from leading universities, delivered through organizations such as Coursera, edX, Udacity, and others.  All of these players have copyright questions, yet too often they ask the wrong questions.  Starting the conversation with the right question can determine whether we reach productive and useful outcomes, or become mired in limited and contentious options.  This is a good time to push aside wrong questions and get a fresh start on the important copyright issues.

Wrong Question #1: “Who owns the copyright in my online course?”

Copyright grants instant and automatic copyright protection to many elements of an online course, including explanations of concepts, charts, diagrams, photographs, and more.  Somebody owns the copyrights.  Who is that somebody?  The problem with this question is that copyright law leads only to answers that are often bad for education.  The law only gives somebody the copyright and leaves everyone else with nothing.  Under the general rule of copyright ownership, the instructor or other individual who creates the original works holds title; an alternative rule is that everything is “work made for hire” and the rights are held by the employer university.  Additional possibilities include “joint copyright” or even separate claims to each discrete contribution to the completed course.  Each of these possibilities is a variation on “all-or-nothing” and is almost certain to produce managerial headaches and tension over “mine vs. yours.”

The Better Question #1: “How can we best allocate and manage rights in our online course?”

We should view the copyright in online courses not as a legal assertion, but as a set of rights to be shared and managed.  Rather than leave copyright ownership to a legal answer, universities and their faculty should implement policies and agreements that specifically distribute rights among the interested parties.  Faculty instructors often want the ability to reuse the content of the course in future teaching, research, and publications.  Universities want assurance that they can make continued use of the course for at least a few years, preserving the integrity of academic program planning.  Careful planning also allows consideration of Creative Commons licenses to permit public use of the courses.  The law alone cannot accomplish any of these alternatives.  We must invest the time and effort to develop insightful and constructive policy standards.  By asking the right question, we can get to smarter answers and can avoid the “all-or-nothing” conflicts.

Wrong Question #2: “Does fair use allow me to cut and paste and include a variety of materials into my online course?”

Fair use is unquestionably of enormous importance in teaching—including in MOOCs.  This simple question nevertheless has the defect of underinclusiveness.  A question that is only about fair use overlooks the many other possibilities for properly using in online teaching a richer variety of photographs, artworks, text content, motion pictures, music, and much more.

The Better Question #2: “What are the options for including copyrighted works in an online course?”

Keep all options open—not only fair use.  Here are some of the most important options:

Fair Use.  OK, fair use gets the most attention and may well be most important, but don’t let it overshadow the next points.

Creative Commons.  Course developers have the ability to share their works with CC licenses, and they can enjoy the benefit of using CC materials from others.  Creative Commons is a vital means for owners to grant advance permission for public use of their copyrighted works.  Some CC licenses require only attribution.  Others are limited to noncommercial uses.  Either way, multitudes of publications, photographs, videos, and other works are freed up under CC licenses for MOOCs and more.

Public Domain.  Some works are in the public domain because they did not qualify for copyright protection in the first place—such as works created by the U.S. government.  NASA films and State Department reports can be powerful educational resources.  Many other works are in the public domain because the copyrights expired.  Such older works may not meet all needs, but when they do, they are a rich trove for teaching and the development of MOOCs.

TEACH Act.  Like fair use, this statute is an exception to the rights of copyright owners.  It applies specifically to “transmissions” of educational content or distance learning.  It is detailed and meticulous.  Few universities employ it, but it might deserve another look.

Permission.  You can always seek permission from the copyright owner.  Sometimes it is a bother or comes with a price.  Sometimes it is worthwhile and even necessary.

Good intellectual property management for MOOCs and all distance education initiatives demands thoughtful planning and careful evaluation of alternatives.  It does not happen by accident.  Some universities are already reflecting on these nuances, and experience confirms that the path to effective results starts with the right questions.

I welcome your thoughts.

Kenneth Crews

Disclosure: I have some connection to MOOCs through my university; this essay represents my own views and not necessarily the views of the university or other party.  Thanks for understanding.

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