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Legal learning: how do MOOCs and copyright work?

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

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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