Copyright Corner

Electronic learning consists of a number of different educational models that allow instructors to deliver instructional content through electronic means. These models include distance learning classes offered through educational institutions (online classes), university course management systems such as OSU’s Carmen, massive open online courses (MOOCs) such as Coursera or edX, and other open educational tools.

These models all function as learning tools, but their structural differences mean that various copyright considerations are raised. Here are some differences to keep in mind:

• Open v. Closed Structure: Many distance learning classes and course management systems are closed structure, meaning that they are typically limited to a specific number of identifiable enrolled students. MOOCs operate under an open system, meaning a potentially unlimited number of students where enrollment may not be required.
• Profit v. Non-Profit: Universities and other educational institutes that offer distance learning classes are typically non-profit entities, though for-profit institutes also exist. Two of the largest MOOC providers, Coursera and Udacity are for-profit entities.
• Instructor Interaction and Student Participation: Like traditional classrooms, distance learning classes include student-instructor and student-student interaction, where individual grading may be based on electronically submitted material or proctored exams. For MOOCs, student-instructor participation may be limited, and students may play a larger role in orchestrating study groups and grading other classmates.
• Cost: Students enrolled in distance learning classes must pay the tuition required by the provider of the course (ie. the university). MOOCs developed as a free resource and the majority of courses continue to be offered for free.
• Academic Credit: Students who have completed distance learning courses may elect to receive academic credit for their work. Traditionally, MOOCs did not offer academic credit, however, some universities have been working to offer academic credit or provide the student with verified certificates.

Now that you are familiar with some of the differences in electronic learning models, we can start to look at the copyright issues these differences raise.

1.         Who owns the copyright in the online course? When an original work of authorship is created, such as the development of a course lesson plan or scholarly article, the author of the work holds a copyright in the work. When the author is an employee, however, it may be the case that the employer (the university) is actually considered the author of the work. This is known as the work-for-hire exception.

The general culture surrounding educational institutions is that works of scholarship, unlike lesson plans or other course work materials remain the intellectual property of the instructor. Though some institutions consider scholarly works to be a part of the general course work of the instructor, for clarity, this issue should be discussed so everyone understands the status of each work being produced.

In addition, educational institutions that work with MOOC providers have to understand the terms and conditions of their agreement. MOOC providers may use a Creative Commons licensing scheme, claim ownership of all content that is uploaded (consequently prohibiting copying and distribution of the course work), or something in-between. All terms and conditions should be reviewed to understand the full extent of the restrictions on copyright ownership.

2.          What material can be included in an online course? An instructor or creator of an online course should first consider including their own material to avoid copyright concerns. If the material has been used in the past, for example in the context of prior teachings or publications, the instructor should first confirm that they retain the copyright in the work. In addition, an instructor may include material through the following means:

• § 110: Federal copyright law allows for some protected materials to be used by non-profit educational institutions, depending on a number of factors. Within a traditional classroom, instructors may display or perform a lawfully made copy of a work, within the context of face-to face teaching, and be protected under § 110(1).  For online courses, use of material is more easily handled through the TEACH ACT (§ 110(2)) (For a checklist of the requirements for protection under § 110(2) click here).  It is not clear whether a university that is non-profit on its own can lose that status when partnering with a for-profit MOOC to provide online classes. But even for non-profit MOOCs, statutory protection under § 110(1) or § 110(2) may be difficult because MOOCs do not limit use of material to a specified number of enrolled students, making limitation on the transmission of material difficult.
• Fair Use: For-profit MOOCs may still be able to rely on the defense of fair use (§ 107) in the event that copyright issues arise. For a further explanation on fair use factors click here. The material being used in online courses is educational material made available for the purposes of teaching, an example cited within § 107. This may balance out the commercial nature of MOOCs. It is also important to consider the character of the use. Courts have been more inclined to find that the first factor of fair use (purpose and character) is fair when the use of the material is transformative. If an instructor is providing material for the purpose of facilitating discussion/criticism/analysis, then such a use is more likely to be determined to be transformative. It is also important to consider how much of the work is being used. If instructors limit their use to just the portions of the material that is needed, this will help the instructor/university in their fair use argument. Lastly, availability and feasibility of licensing of the material should be considered. If it is easy to obtain a license, and to do so at a fair price, this can weaken a fair use defense.
• Public Domain: Instructors can include works from the public domain within the course material, or works that are otherwise under an open license.
• Securing Permission: An instructor can secure permission to use the work from the copyright holder. This permission may often take the form of a licensing fee, which may be at odds with the free structure of many MOOCs.

In addition to considering which materials can be made available to individuals as part of their participation in the course, an instructor or course creator should also consider the issues that may arise in assigning outside reading materials. For traditional face-to-face teaching models, as well as distance learning classes, this usually means purchasing a textbook or other course material through the university book store or copy center. The underlying goal of MOOCs, however, is to provide a free experience to participants.

Many of the same options mentioned above for including material within the course are also options to consider for providing access to materials outside of the course plan: using Creative Commons works or works in the public domain, negotiating new licenses or otherwise obtaining permission from copyright holders for as low of a price as possible, arguing statutory protection under § 110(2), or relying on fair use.

3.         What can participants do with the material? Under the TEACH ACT students may view but not download or otherwise copy materials, but some use of the material may be protected under fair use. Once again, this sort of limitation can pose problems for open courses. If the course material being used is the instructor’s own work, with no limitations placed on further use, or if the work is from the public domain, this issue may be avoided. As with distance learning classes, participants may also wish to rely on fair use, so long as their use is non-commercial and otherwise limited in scope. Lastly, institutions participating in MOOCs may wish to negotiate licensing arrangements with copyright holders in order to allow participants to make copies of the work.

As more educational institutions provide electronic learning options, it is important to be aware of the advantages, limitations and uncertainties that can surround e-learning. Educational institutions and instructors should be conscious of the difference in existing e-learning structures, and how the chosen structure helps to dictate how copyrighted works may be used inside and outside of the electronic classroom. For further information or assistance with questions, please visit the Copyright Resources Center or email libcopyright@osu.edu.