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Legal learning: how do MOOCs and copyright work?

Another university has jumped on the Massive Open Online Course (MOOC) bandwagon this month, with the Australian National University joining up with Harvard venture edX. In ANU’s case, it will enable Nobel…

Copyright law could make the job of creating Massive Open Online Courses more difficult. Legal image from www.shutterstock.com

Another university has jumped on the Massive Open Online Course (MOOC) bandwagon this month, with the Australian National University joining up with Harvard venture edX.

In ANU’s case, it will enable Nobel Laureate Brian Schmidt to teach astronomy students from around the world without a fee, and all at the click of a button.

But as each new university signs up to provide free course content online, it would be worth looking a bit closer at the legal fine print. The law as it stands may not be able to accommodate this new free flow of information.

The legal landscape

An anti-commons exists where there is a shared resource with numerous owners. If any of these owners can block any attempt by any other owner or user to deal with the resource then a problem of underuse arises.

This is known as “the tragedy of the anti-commons.” The clash between copyright law and the MOOCs movement could be a similar kind of tragedy, with numerous copyright works and different owners.

The Australian Law Reform Commission is currently looking at reforming the Copyright Act 1968 (Cth). And it has been suggested that fair dealing laws should accommodate MOOCs.

(A fair dealing exception is ostensibly a free use of a protected work under certain conditions).

But the fair dealing clauses in the Copyright Act will not allow universities to simply provide these works to people who enrol in their new MOOCs offerings.

There are two inter-related, but fundamentally separate issues here. The first is that the statutory licences for educational institutions that exist under the Copyright Act are not sufficiently up to date to meet the needs of universities. This system allows universities to use works in exchange for a fee.

Given that education is best served by maximising the use of knowledge, the licensing system really needs to fit the current issues that universities face when teaching their enrolled students.

The second issue is that the use of copyright materials for MOOCs should not be covered by a free-use exception like fair dealings.

Branded works

In essence, MOOCs are about market-share and branding. Even though no university manager appears to have a clear idea of how to monetise MOOCs, the whole point of pursuing it as a model of education is to gain and keep market-share in a globalised education market.

Why else would “cash-strapped” Australian universities be so keen to explore MOOCs? They don’t want to be left behind as the university system changes.

That is fair enough. But taking someone else’s intellectual property and using it to make a profit is not an elegant offence – it is theft. At the very least it is free-riding on someone else’s work.

There is an argument that as Australian universities are (part) publicly funded that the research created by its academics should be available to the public. The suggestion here is that the taxpayer should not be made to pay twice to access information whose creation she has already funded.

That said Australian universities are open to members of the public provided that they are enrolled students. The knowledge created by research is often disseminated by teaching.

A lot of academics have started to place their shorter intellectual efforts into new media platforms such as The Conversation, The Drum and Online Opinion. This provides an interface between academia and the broader public.

There are also open access publishers who provide academic work for free online.

The type of publisher who would be adversely affected by any changes made to the fair dealing law to accommodate MOOCs would be the commercial publishers.

But, academia needs commercial publishing. Without commercial publishers there would be no textbooks and far fewer journals.

Idle information?

There is a disturbing sense of entitlement in the suggestion that Australia’s copyright laws need reform in order to accommodate MOOCs.

Information should definitely not lie fallow. Yet, it is going too far to allow for private intellectual property rights to be overrun so that information can be shared globally to anyone, whether enrolled or not, who so chooses to study a MOOCs subject.

Increasing the use of information does not have to mean taking other people’s work and giving it away for free. Some type of licensing fee needs to be paid.

More importantly, if the university administrators have not as yet figured out how to make money from MOOCs they cannot just be allowed to shift the costs and the risks onto private publishers.

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26 Comments sorted by

  1. Craig Savage

    Professor of Theoretical Physics at Australian National University

    "In essence, MOOCs are about market-share and branding." No, in essence MOOCs are about educating better and cheaper.

    "Without commercial publishers there would be no textbooks and far fewer journals." Excellent! Their functions have been superseded by the web. In my area of physics, the online, non-commercial, arxiv has undermined formal journals as far as information sharing is concerned. Commercial textbooks are typically out of date, technologically backward and intellectually conservative. Online open source overcomes these problems.

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    1. Colin MacGillivray

      Architect, retired, Sarawak

      In reply to Craig Savage

      MOOCs are about educating better and cheaper. Totally agree. And your second point too.
      Surely in time, a reputable university somewhere in the world will establish transparent systems to grant some degrees to students almost entirely on line? It will be hugely cheaper. The degree would be better too, for instance if all the student's work was available on line for a prospective employer to view.

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    2. Craig Savage

      Professor of Theoretical Physics at Australian National University

      In reply to Colin MacGillivray

      MOOCs really only took off a year ago. We are in the early phases of figuring out what is possible. The cost efficiencies are such that whole new markets could open up.

      I think it is likely that once the quality of learning is understood, and identity verification dealt with, then full degrees could follow.

      One of the many unclear things is whether students and employers will want full degrees, or prefer a learn as you need it approach, as is common in IT.

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    3. Craig Savage

      Professor of Theoretical Physics at Australian National University

      In reply to Gavin Moodie

      Indeed, there is nothing new under the sun!

      However we are looking for a fully automated process running without human intervention. This is where much of the cost efficiency comes from.

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    4. Craig Savage

      Professor of Theoretical Physics at Australian National University

      In reply to Gavin Moodie

      A few years ago many people wouldn't have thought Artificial Intelligence was at the point where the Google Car could drive itself hundreds of thousands of kilometres through Los Angeles traffic without trouble. In fact it drives better than most people, and soon you'll be able to buy cars with that technology - not just self parking.

      My understanding is that edX is spending some of its 60 million dollar endowment from MIT and Harvard on hiring the best AI people they can. Guess why!

      MITx and Harvardx are already awarding individual course certificates in a fully automated way. Isn't a degree just sufficient courses passed?

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    5. Gary Myers

      logged in via LinkedIn

      In reply to Craig Savage

      "I think it is likely that once the quality of learning is understood, and identity verification dealt with, then full degrees could follow."

      The identify verification requirement is often raised. Somewhere I have a piece of paper with my name and my degree on it. I don't think anyone has ever been interested in seeing it. I'd suspect most graduates of past years have never been troubled by an identity check either.

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    6. Jack Arnold

      Polymath

      In reply to Craig Savage

      Hi Craig, I followed your argument to here but now I must demur.

      Any assessment of learning is necessarily predicated on the assumption that the marker knows "their stuff" and can assess how well the student has learned the existing dogma. So, you can see that the problem becomes updating the marker's "dogma quotient" or "dogma quantum" as new discoveries are made in that field of endeavour, or related fields applicable to the study area.

      It is the interaction between student learning and the marker's "dogma quotient" that I think will be difficult to bring together.

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    7. Craig Savage

      Professor of Theoretical Physics at Australian National University

      In reply to Jack Arnold

      I am confident that given resources on the scale available to edX I could put together a fully automated four-year honours level program of instruction in physics that gave a better education than is currently available from ANU.

      While I doubt my colleagues would agree with me, many of them are nevertheless automating their classrooms - including Nobel Laureate Brian Schmidt whose edX astronomy course will have automated marking.

      As an aside, it has long been true that no one person could master all of physics. However it now seems that AI systems such as Watson can do this. Therefore the true keeper of the dogma may soon be machines, not people. If so, your argument implies that high level assessment must be automated.

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    8. Jack Arnold

      Polymath

      In reply to Craig Savage

      The academic excellence at ANU is self evident since the 70s when politicians have ensured that their local university has been fully and properly resourced for the benefit of their offspring. This has attracted high quality academics who from hard experience provide excellent courses.

      Certainly number juggling course like Physics or Mathematics are naturals for on-line learning (provided the lecture materials show the intervening steps for plodding mathematicians) because there is generally…

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    9. Jack Arnold

      Polymath

      In reply to Jack Arnold

      Furthermore, you appear to be proposing doing Science without experiments ... surely that takes us back to the Dark Ages. It is bad enough that in the 80s a NSW Department of Education removed experiments from the Science curriculum because he personally hated "all that counting and measuring". This approach has killed off the interest in Science among students for the last 30 years.

      Science is the art of counting and measuring ... and making smells and bangs and magical colour changes ... the list of wonders goes on, all created by a "hands on" approach to a practical subject similar to Woodwork or Technics or Home Cooking.

      [OK, OK my previous carnation in the PreCambrian as a Science postgraduate and teacher is showing].

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    10. Gavin Moodie
      Gavin Moodie is a Friend of The Conversation.

      Adjunct professor at RMIT University

      In reply to Jack Arnold

      I'm not so sure that 'there is generally only one correct answer' in quantitative disciplines. In at least some branches of mathematics I gather that mathematicians are interested in how well proofs of concepts are consistent with available data and are internally coherent, parsimonious and 'elegant', that is, easy for humans to grasp and retain. In at least some branches of physics I gather that physicists are interested in how well equations explain or 'fit' the data available.

      While I suppose one can imagine intelligent knowledge based systems assessing mathematical proofs and physics equations, this doesn't seem likely in, say, the next decade.

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    11. Craig Savage

      Professor of Theoretical Physics at Australian National University

      In reply to Jack Arnold

      Without experiment and observation the truth of science cannot be established. However the learning of science is another matter.

      There is educational research evidence that students learn better from simulations than from "real" labs. A significant part of the edX effort is to create these simulations. In my opinion, after careful evaluation, some of them are clearly more effective for learning than a "real" lab would be.

      Nevertheless there may still be a place for labs in large class learning, and that can be dealt with in ways pioneered by the Open University and other long standing distance education institutions - such as mail out kits.

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    12. Jack Arnold

      Polymath

      In reply to Craig Savage

      Hi Craig, the use of simulations is surely an important tool in future Science teaching because the depth of learning from "pushing a model" can be evaluated.

      However, again I demur because hands on experimentation may produce unexpected results that provide further research opportunities. For example, the discovery of Penicillin by Florey and Best.

      As for "mailout kits" ... good luck. IMHO they are a real furphy and totally inadequate when compared to laboratory experience. One of the joys of experimentation while learning is the interaction between students that occurs while attempting to perform the experiments.

      FYI, the Open University came to the University of New England in the early 70s to learn how to do Distance Education.

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  2. Charles Lawson

    Law academic

    "But taking someone else’s intellectual property and using it to make a profit is not an elegant offence – it is theft". No. It is infringement. Theft and infringement are very different and all to readily conflated. Infringement assumes a level of spill-over and generally the vigilance of the copyright owner to protect their own interests.

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    1. Eric Anderson

      Eternal Student

      In reply to Dilan Thampapillai

      Lawson's criticism was about the use of the term "theft." Gesturing to Alford's very-fine-but-dated book is neither a defense nor on point.

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    1. Dilan Thampapillai

      Lecturer, School of Law at Deakin University

      In reply to Gavin Moodie

      While that has been asserted in some quarters, particularly in relation to fair use, it is not actually that clear. Fair use has to be determined on a case by case basis so each particular use would need to be evaluated. Fair use certainly offers more flexibility than fair dealing, but until there is actually a case that tests MOOCS against fair use we can't really say that US law is definitely much more favourable.

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  3. Sharman Harper

    Lawyer

    "...it is going too far to allow for private intellectual property rights to be overrun so that information can be shared globally to anyone, whether enrolled or not, who so chooses to study a MOOCs subject."

    I don't believe that this is what has been suggested by Australian universities. Anyone interested in what reforms the Universities are suggesting should read the various submissions universities have made to the ALRC, and this submission by the Society of University Lawyers: http://www.alrc.gov.au/sites/default/files/subs/158._org_societyofuniversitylawyers.pdf

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  4. Leigh Blackall

    logged in via LinkedIn

    Re "In ANU’s case, it will enable Nobel Laureate Brian Schmidt to teach astronomy students from around the world without a fee, and all at the click of a button."

    Brian has been able to teach astronomy to people around the world since the Internet was invented. A corporate entity with a simplistic understanding of learning, and as you point out - poor outlook, wasn't needed. Or was it?

    I find it perplexing that corporate and profit motive entities find such an easy way into our education system…

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    1. Lyndsay Agans

      Convenor, Digital Learning Project at Australian National University

      In reply to Leigh Blackall

      Craig has done a nice job explaining some of the gaping holes in this commentary but the author also fails to identify the complexity of multi-national copyright issues. As Gavin points out edX based in the US has other copyright issues. These are questions we have good people (like expert research librarians) working on.

      Let me correct the statement here about edX being corporate. It is not. It is a non-profit venture as ANU is non-profit. Rather than raise conjecture about why ANU got involved why not ask? We are opening new channels and expanding access. Many of the ANU College of Asia and the Pacific academics maintain blogs in their areas of expertise. There is a commitment to public good and knowledge sharing that is not as cynical as some of the comments here (outside of the Uni) would have you believe.

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    2. Dilan Thampapillai

      Lecturer, School of Law at Deakin University

      In reply to Lyndsay Agans

      Actually, Leigh’s critique does neatly illustrate how a commons based initiative has been co-opted by corporatist interests within the modern tertiary sector. While many universities are ‘not for profit’ they are increasingly concerned with brand awareness and with competing for market share (all of which are normally associated with for- profit enterprises). There is not necessarily anything wrong with that, but it would be disingenuous to suggest that the broader movement within the sector towards…

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    3. Gavin Moodie
      Gavin Moodie is a Friend of The Conversation.

      Adjunct professor at RMIT University

      In reply to Dilan Thampapillai

      With the limited exception of for-profit universities, universities are not concerned with market share. The universities of Melbourne, Queensland, Sydney and Western Australia and numerous others could double their enrolments and market share but would never contemplate such a thing.

      Universities are concerned with increasing their prestige, or positional value (Hirsch, 1976) in economic terms. Moocs have become popular not because they have been advanced by commercial interests, but because…

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