How will MOOCs Affect Fair Use and Copyright Compliance?

As more institutions consider offering Massive Open Online Courses (or MOOCs), we wanted to investigate what impact these open-enrollment online courses might have on copyright compliance issues for faculty in higher education. To learn more, we turned to copyright and fair use policy experts Steven McDonald, general counsel for the Rhode Island School of Design (RISD), and Kevin Smith, director of scholarly communications for Duke University's Perkins Library.

Here are the insights that McDonald and Smith shared with us, related to issues of both copyright compliance and ownership.

A Closer Look at Compliance and Fair Use

Kevin Smith. We are seeing two things:

  • People are more cautious about relying on fair use when anticipating sharing content with 170,000 people in the (online) classroom than we are when anticipating sharing content with 170 students on campus.
  • We also have a huge opportunity to establish new partnerships with copyright holders (publishers and various clearinghouses), developing agreements to use their materials in the MOOCs, because of the significant opportunity for the MOOC to raise the visibility of their materials.

I'll tell you a story. We had a situation where a faculty member wanted to use materials from a textbook. In her regular class, she used materials from that text in her slides, and she wanted to use the same powerpoint slides in the MOOC version of her class. Because we are being more cautious, we contacted the publisher -- even though we have no doubt that this is permitted in the classroom. And the first reaction we received from the publisher's permissions department was, "Oh no, we can't allow that." We went back to them and said, "Please talk with your marketing office. Because what is going to happen here is that 40,000-50,000 people are going to self-identify as interested in the topic, and your textbook will be recommended to them by a well-regarded authority."

We have seen a number of instances in which a professor recommends a book and then sales spike because of the MOOC. So we have empirical evidence. It's marketing gold for a publisher.

Steven McDonald. That's a very good point. It's not students who are signing up because it's a required course. These are people who are signing up just because they are interested in the topic. It's a unique value proposition when you're making the case to the copyright holder. But to the other point, there is no question that you can share those powerpoint slides in a live classroom under Section 1101, the statutory permission for live, face-to-face instruction. Under Section 1102, you can do that in a virtual classroom, a TEACH Act classroom. But MOOCs are not really being designed, to my knowledge, to comply with TEACH Act parameters -- so that doesn't help, either, and so you do fall back on fair use.

Kevin Smith. Yes, that's my interpretation, also. We don't meet all the requirements for TEACH Act compliance, so we are relying on fair use, but in a more conservative way than is usually the case.

Academic Impressions. So it is critical to take that extra step of caution in contacting the copyright holder and seeking permission -- even if you are certain that use of the materials falls under fair use. But in the case of a publisher particularly, there is an easy case to make to their marketing department.

Kevin Smith. I think that's true, but I do want to say that because fair use can always apply, there will be cases where we will opt to rely on fair use.

Steven McDonald. Now, if you are providing readings outside of the class -- short excerpts to read outside of the lecture -- this is where compliance gets trickier. The TEACH Act doesn't provide for that, and I think it would be a bad idea to take the outcome of the Georgia State University case and apply it by saying that you can take a chapter of a book and provide that chapter to 170,000 people in an unrestricted way.

Kevin Smith. However, if you ask the publisher, most copyright holders will provide a PDF for the students. Most of our instructors are relying on recommended readings and what they can supply in their lecture materials, but at least one of our faculty has worked with publishers to supply quite extensive excerpts to students in the MOOC.

Also, to be fair, those publishers who you contact about journal articles may not be wooed by the idea that 170,000 people would read a PDF of the article, because those 170,000 people aren't going to go subscribe to the journal. However, a number of publishers of journals have still agreed to provide materials because education is part of their mission. We have been fortunate to work with publishers of vision who are willing to take risks as we move into MOOCs.

Define your policy and know before you go in what you will do -- will you be linking to materials or offering excerpts? If you are unable to secure permissions, will you rely on fair use? Be intentional and consistent.


In our September 2012 article "Copyright, Fair Use, and Electronic Materials: Three Tips," Steven McDonald and Kevin Smith offer their reflections on the Georgia State case and provide three tips for addressing fair use at your institution proactively rather than reactively.

Educating Your Faculty

Steven McDonald. What you also have to do is educate your faculty. Often faculty are in the mindset that they can do whatever they want to. To them, sharing this content is just a part of teaching. You want to make them aware that in the case of MOOC, there is a gray area to consider. Kevin, would you agree that, theoretically, you could structure a MOOC in compliance with TEACH Act parameters?

Kevin Smith. Yes, theoretically, but usually a MOOC is designed so that the lectures are recorded and students are able to download them to get the full benefit of those lectures, and to ensure accessibility. So I think it would be difficult to design a MOOC in compliance with the TEACH Act, and this would probably impact some of the fundamental goals of the MOOC.

Steven McDonald. But look at this intentionally, when evaluating the merits of downloading versus streaming content. The closer you can get the MOOCs to looking like a classroom as defined by the TEACH Act, the stronger your case for fair use will be. As you strategize how you will approach the MOOC, (1) remember that you are not in a live classroom, and you have to be intentional in how you approach use of other people's content in this virtual space, and (b) there are going to be trade-offs to consider, and I recommend measuring those against the TEACH Act factors. You may decide this MOOC is not going to comply with the TEACH Act, but have that in the back of your mind: a checklist of things you at least need to think about, questions you need to answer at the start.

To clarify, under the TEACH Act, if you are using someone else's materials during a recorded lecture, you can use a size limit that will allow students to see the lecture if you are streaming it, but not download it and share it with others downstream.

Kevin Smith. I will add that at least in my experience of working with individual instructors around MOOCs, getting them to think differently about the classroom and to take more seriously that we have to be more cautious here hasn't been as difficult as I thought it would be. Most of them understand that this is a new environment. A lot of them are very excited by the new learning environment and by the opportunity to be more flexible. I spoke with one faculty member who siad, "I never thought that this should be a 14-week course. It is two 7-week courses, and now I can teach it that way." Faculty already see the MOOC as new and different territory, so it has been easy to engage them in a conversation about how the copyright issues are different too.

Revisiting your Policy on Copyright Ownership

Academic Impressions. Thank you, Kevin, Steven. You've made some critical points about how to treat the issue of permissions when you are designing and delivering a MOOC. What about content created at the institution, by its faculty? How does the MOOC affect issues of ownership?

Kevin Smith. Increasingly, universities have to revisit their policies as to who owns what. Does the university own the materials produced for the class, do the faculty own the materials? What does Coursera or Udacity own, based on the contract you have? Considering ownership and licensing issues before developing a MOOC is critical.

Steven McDonald. My general rule for looking at issues of ownership is that electronic and paper are not treated differently. If the institution would not claim ownership of instructional content that is in paper form, they should not claim ownership of instructional content that is in electronic form. One of the usual exceptions in copyright policy is that if there is a material use of special institutional resources, then the university may have a claim. A MOOC is not cheap. So there is likely a larger desire for the institution to have more control over the future destiny of these MOOCs, of that instructional content. That is a healthy conversation that is appropriate, but it needs to take place ahead of time.

Kevin Smith. Our general feeling is that that we want our faculty to be the owners of what they create, but that if we need to have some interest in it short of ownership -- some type of license -- then we want to discuss that early.

One point that is critical not to forget is that you are now in a three-party situation. You need to review that agreement with Coursera or Udacity or whatever party you are working with. Is there anything in the agreements you are forming that would impact faculty ownership of the work or its licensing to your institution? Make sure the agreement you reach with the third party is consistent with your values and with the institution/faculty relationship that's important to you. Be aware.

Academic Impressions. It sounds like the key message -- as in any conversation around copyright and fair use -- is one of intentionality.

Kevin Smith. Yes. We can do this, we can make it work. We just need to be prepared and be intentional.

Steven McDonald. I want to offer one final point. This is not a legal consideration; it's more of a philosophical question. It's similar to the arguments around open access. When you are designing a MOOC for thousands of people to attend, you need to also be intentional about your philosophy toward sharing content. How public do you want to be? What level of control over content is actually practical? If there are 170,000 people accessing these materials, can you enforce ownership even if you want to? You need to be comfortable and clear about your philosophy when you set out in this type of effort.