By: Gregory T. Myers, Albany Government Law Review
A MOOC—a massive open online course—is a free or near-free, credit-less, online course that is creating substantial buzz in the academic and technical communities. The New York Times dubbed 2012 the “Year of the MOOC,” as MOOC companies and providers like Coursera, edX, and Udacity teamed up with top-tier schools like Stanford, Harvard, and M.I.T. to offer high-quality classes online. The democratization of formerly exclusive “brick and mortar” coursework has ushered in the enrollment of over four million students to some of these new and revolutionary courses. Never mind the most salient problems MOOCs face regarding their actual functionality and success, an equally significant problem is faced by university and college professors collaborating to create the online courses: intellectual property rights.
MOOCs flip the traditional college lecture on its ear because the course is being accessed by tens of thousands of students at a time, making it impossible for the instructor to tend to the needs of all the students. But it also flips the professor’s relationship with his or her employer. Professors are part of an educational legion in universities that partner with MOOC providers (like Coursera). As such, they are being asked to create new and interactive ways to engage their students using a brand-new internet medium. So it becomes important to ask who owns the intellectual property at the core of the course.
Answering this question is difficult. After all, faculty professors are now designers and creators of online courses. It has long been argued that principles of academic freedom prevail in favor of the professors—giving intellectual property rights to the professors when it comes to scholarly works. At the same time, the university contracting with the MOOC provider is the brand name that attracts and ultimately retains students. The scant case law on the subject only speaks to creations such as scholarly articles, not the new MOOC concept.
Coursera, edX, and Udacity all state in their terms of service that they are the respective owners of the content that they provide on the MOOC platform and such content is subject to change at the will of the provider. This bumps elbows with the fair use standard. Under the fair use standard, copyrighted material can be freely used for educational purposes with the caveat that it is not of a commercial nature or has too substantial of an effect on the market value of the copyrighted work. The disconnect is that teachers have traditionally held the exception to copyrighted work under the fair use standard because they are using the material in a limited capacity to a small number of people for educational purposes. MOOCs change the rules on traditional education and the potential application of the fair use standard.
It can be argued that the MOOC platforms, especially the for-profit platforms, are of a commercial nature and flood the market to an extent that depreciates the value of copyrighted materials. They are taking what was formerly used in a limited capacity fully within the scope of the fair use standard and injecting it into a market with ubiquitous connections via the Internet, and thus endless access. Therefore, educational fair-use claims may be less likely to hold up when courses are as vast and open as those provided by the MOOC platforms. Essentially, the universities are bargaining with the MOOCs regarding intellectual property rights that neither may be entitled to—they are the professor’s intellectual property. The former president of the American Association of University Professors (AAUP), Cary Nelson, argues that “[i]f we lose the battle over intellectual property, it’s over” because a professor will be a service industry position rather than a professional teaching position. Nelson further prophesied a parade of horribles: that the future interests professors have in other scholarly works may be compromised if ownership rights reside solely with the employer university.
The TEACH Act could become a factor in the future but it “is meticulous and detailed” which explains why few universities use it. The Act seeks “to balance the needs of distance learners and educators with the rights of copyright holders” by facilitating the display of copyrighted material for distance learners by accredited and non-profit institutions. While some MOOC providers are non-profit, others are not, and they too still levy over the intellectual property rights of the universities and their professors.
Another concern is an internal one. Faculty union officials in California are concerned that professors will erode faculty intellectual property rights when they voluntarily teach free online classes. The voluntary nature of this issue also precludes certain collective bargaining powers that unions would otherwise have over their universities. If the professors hold out and do not voluntarily “teach” these MOOC courses, then that is a power they retain at the collective bargaining table. With that power, professors can work to secure their future interests by preventing employer universities from negotiating away potential intellectual property rights before there is even a discussion on the issue.
The benefits of taking a proactive approach to securing intellectual property rights at the collective bargaining table are clear. They forgo a marginalization of rights by all three parties—the professors, the universities, and the MOOC providers. Strong solidarity can help prevent otherwise vulnerable professors, like those being offered their first tenure-track positions, from being pressured into signing away their invention and intellectual property rights that could span their entire careers.
Some universities take a “work for hire” approach wherein works created in the scope of employment belong to the employer and are, in this case, intellectual property rights belonging to the university. However, other universities have taken the opposite approach and granted intellectual property rights to their professors while courts seem to be split almost as similarly as the universities. In particular, Stanford asserts intellectual property ownership rights over its employees and that includes MOOC material but that is also because Stanford is not transferring ownership to the MOOC providers.
With all the uncertainty circling the MOOC phenomenon and its inherent tri-level of content ownership, the most prudent way to handle it will be via proactive engagement of the parties. This can be accomplished at the collective bargaining table between the professors and the universities and at the course development table between the universities and the MOOC providers. The Economist stated that the MOOC could be the fall of the ivory tower. If so, are our professors tied to the same fate?
 Laura Pappano, The Year of the MOOC, N.Y. Times, Nov. 2, 2012, http://www.nytimes.com/2012/11/04/education/edlife/massive-open-online-courses-are-multiplying-at-a-rapid-pace.html?pagewanted=all&_r=0.
 Id.; Jon Marcus, MOOCs Keep Getting Bigger. But Do They Work?, Hechinger Rep. (Sept. 12, 2013, 7:31 AM), http://hechingerreport.org/content/moocs-keep-getting-bigger-but-do-they-work_12960/.
 Marcus, supra note 2.
 Id. Roughly ninety percent of people who sign up for a MOOC fail to complete them for one reason or another. Id.
 Ada Meloy, Legal Watch: Who Owns Your MOOCs? Updating Intellectual Property for the Modern Era, Am. Council on Educ. (May 1, 2013), http://www.acenet.edu/the-presidency/columns-and-features/Pages/Legal-Watch-Who-Owns-Your-MOOCs.aspx.
 Pappano, supra note 1.
 Meloy, supra note 5.
 Id. However, this may be subject to some level of alteration when it comes to university, state, or federal grants for the purposes of research and discovery. See id. (discussing the educational institution’s interest in a MOOC based on the level of resources provided by the institution to the professor for its development).
 See, e.g., Weinstein v. Univ. of Ill., 811 F.2d 1091 (1987) (holding that faculty members own a copyright interest in their scholarly articles). Id.
 17 U.S.C. § 107 (2014) (providing an exception for use of copyrighted material for “educational” purposes, amongst others).
 See id.
 What Campus Leaders Need to Know About MOOCs, Educause (2012), available at http://net.educause.edu/ir/library/pdf/PUB4005.pdf.
 Depending on the level of funding given to the professor, of course.
 Peter Schmidt, AAUP Sees MOOCs as Spawning New Threats to Professors’ Intellectual Property, Chronicle of Higher Educ. (June 12, 2013), http://chronicle.com/article/AAUP-Sees-MOOCs-as-Spawning/139743/.
 Kenneth Crews, MOOCs, Distance Education, and Copyright: Two Wrong Questions to Ask, Columbia U. (Nov. 9, 2012), http://copyright.columbia.edu/copyright/2012/11/09/moocs-distance-education-and-copyright-two-wrong-questions-to-ask/.
 The TEACH Act: New Roles, Rules and Responsibilities for Academic Institutions, Copyright Clearance Ctr., http://www.copyright.com/media/pdfs/CR-Teach-Act.pdf (last visited Sept. 29, 2014).
 Ry Rivard, Who Owns a MOOC?, Inside Higher Ed (March 19, 2013), http://www.insidehighered.com/news/2013/03/19/u-california-faculty-union-says-moocs-undermine-professors-intellectual-property.
 See id.
 See generally Schmidt, supra note 17.
 Megan W. Pierson, Robert R. Terrell & Madelyn F. Wessel, Massive Open Online Courses (MOOCs): Intellectual Property and Related Issues, Nat’l Ass’n of Coll. and Univ. Attorneys 1–2 (June 19, 2013), available at http://www.higheredcompliance.org/wp-content/uploads/2013/09/AC2013_5G_MOOCsPartI1.pdf (citing Copyright Act of 1976, 17 U.S.C. Sections 201(b); “University of Virginia Policy: Ownership Rights in Copyrightable Material” (2004) (asserts university ownership interest under work for hire doctrine and cedes ownership of scholarly works “such as journal articles, books and papers” but does not include course materials) “Stanford University Research Policy Handbook” Section 9.2 (includes work for hire doctrine and provides that courses taught and courseware developed for teaching at Stanford belong to the university); University of Chicago, Copyright Policy for Faculty and Other Academic Appointees (2012) (concerning copyrightable works involving new information technologies, the university owns the intellectual property the faculty create at the University).
 Id. at 2-3.
 Clarisse Peralta, Online Courses Raise Intellectual Property Concerns, The Stanford Daily (Nov. 1, 2012), http://www.stanforddaily.com/2012/11/01/intellectual-property-concerns-for-moocs-persist/.
 MOOCs: The Fall of the Ivory Tower?, Economist (Aug. 1, 2013), http://www.economist.com/blogs/schumpeter/2013/08/moocs-fall-ivory-tower.