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MOOCs, Copyright, and the Library

(by Peter Hirtle)

As MOOCs (Massively Open Online Courses) have become of interest to higher education, so too have they drawn the attention of libraries.  Now that Cornell has joined the EdX partnership, MOOCs are of particular interest to CUL.  The article “Massive Open Opportunity: Supporting MOOCs in Public and Academic Libraries” is a good introduction to some of the many issues that MOOCs present for libraries, but here I want to focus primarily on the copyright issues associated with MOOCs.

Copyright is a concern in 3 different areas:

  1. Copyrighted material used in streamed lectures
  2. Copyrighted material that students have to read outside of class
  3. Ownership of the MOOC course material.  (I assume this is being addressed in the agreement with faculty and so won’t discuss it further.)

Copyrighted material used in streamed lectures

Copyright law gives faculty a lot of leeway to use copyrighted material during the course of face-to-face instruction.  Unfortunately faculty may not realize that the poem they read aloud or the movie they show in class can be an infringement when the class moves online.  Nevertheless, there are several options available:

  • The class might be structured in a way that it complies with the TEACH Act, which allows limited use of streamed work if the course is “offered as a regular part of the systematic mediated instructional activities of,.. an accredited nonprofit educational institution.”  I don’t know if the Cornell MOOCs would fall in that category.  There are several other technical issues associated with the TEACH Act that would have to be met if we wanted to take advantage of its protections.
  • Fair use is also available, though given the large number of students in a MOOC, it is important to limit the use made to a small portion of the original.  Kevin Smith at Duke likes to tell the story of a faculty member who wanted to show a long excerpt from a movie in a lecture.  After discussion, the faculty member realized that 20 seconds was all he needed to illustrate the point that he was trying to make, and Kevin concluded that this would be a fair use.

In general, though, MOOCs are not relying on fair use or the TEACH Act.  Instead a number of other approaches are followed:

  • Faculty are encourage to author any material used in their courses and not rely on 3rd-party copyrighted material.
  • If 3rd party material is needed, faculty are encouraged to look for open access versions, such as FLICKR images that are licensed as CC BY or CC BY-NC.
  • Attribution should be provided to the original source in slides and on other class materials.
  • Rather than copying material into the MOOC, faculty should rely on external and embedded links as much as possible (especially important with the next group of materials)
  • Permission to use the material in the course can be licensed.  Note that this can be very, very expensive given the number of students in the course.

Copyrighted material that students have to read outside of class

There may be material such as journal articles, book chapters, textbooks, and other material that will be assigned to be read outside of lectures.  Most commentators agree that it is difficult to argue for fair use (as we do with e-reserves) for a course that may have 50,000 students in it.  Nor will the licenses purchased by the library for Cornell users likely cover use in a MOOC.  Permission of the copyright owner is likely to be required.

Kevin Smith has told me that he has had some luck with securing permission to use a chapter from a book for free by pointing out that it is a marketing opportunity.  The inclusion of a chapter from a book in a MOOC has led to an increase in the purchase of book.  But this requires getting past the permissions department and talking to marketing people instead.  As Kevin mentions in a quote below, the process is “slow and labor-intensive.”

Both the Copyright Clearance Center and SPIX, a Stanford University spin-off, are claiming that they can secure permissions to use material in MOOCs, but the expense of doing this would be substantial.  And in a free MOOC, who would pay for the permission?

In sum, instructors should first seek to use open access materials.  The Library can help faculty identify acceptable open-access resources. If there are no appropriate open access resources, faculty should request a free license from the publisher to include the material.  If that doesn’t work, someone may have to pay for permission to include the material.

Penn has prepared a very good guide to copyright issues in MOOCs.  Penn is using Coursera, a commercial product, so they downplay the fair use option (which is probably risky even in a non-profit environment).

And here is Kevin Smith’s description of Duke’s practice:

When our instructors want to provide readings for students taking a MOOC, we generally pursue one of two options.  Either we negotiate with publishers, who are slowly figuring out the marketing advantage they gain by allowing small excerpts of books and textbooks to be made available freely, or we look for OA content.  Unfortunately, the negotiation option is slow and labor-intensive; often we must explain the purpose and the conditions over and over again, to ever-shifting groups of officials, before we can get a decision.  So open access is ever more important, because more efficient, for our MOOC instructors and their students.

One story will illustrate this growing interest in open access.  A faculty member who was recently preparing to teach his first MOOC wanted his students to be able to read several of his own articles.  When we asked his publisher for permission on his behalf, it was denied.  A rude awakening for our professor, but also an opportunity to talk about open access.  As it turned out, all of the articles were published in journals that allowed the author to deposit his final manuscripts, and this author had them all.  So we uploaded those post-prints, and he had persistent, no-cost links to provide to the 80,000 students who were registered for his course.  An eye-opener for the author, a missed opportunity for the publisher, and a small triumph for our OA repository.  Enough of a triumph that this professor has begun asking colleagues if they could deposit post-prints of their own articles in the repositories at their institutions so that he can use those for his MOOC students as well.

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