MOOCs: Interesting Legal Territory Ahead

Inside Eight Game-changing MOOCs

As massive open online courses (MOOCs) gain publicity and popularity, it's time to address the legal concerns affecting this trend in higher education.

MOOCs attract thousands of curious minds with free access to the world's brightest professors and the opportunity to explore any subject. Institutions benefit from being able to reach individuals who otherwise wouldn't have interest in their school, such as international students and full-time employees. Professors who want to expand their audience and experiment with new technology can do so with MOOCs.

While MOOCs have the potential to change higher education, those who wish to implement them have a few issues to confront. Copyright and intellectual property issues are currently of particular concern, Amanda Marie Baer, an attorney at Mirick O'Connell who specializes in higher education, said in an interview.

[ For a university CIO perspective on MOOCs, read MOOC-utopia: Who Really Wins? ]

In traditional classes, professors are generally protected from copyright infringement when selecting resources. Some use materials that they themselves created and therefore own. Others are licensed to use materials they produced by using university resources. The university owns this material as "work for hire" but can license it to the professor. In other cases, a "fair use exemption" allows professors to use copyrighted work without securing permission from the holder.

This exemption does not extend to MOOC professors due to the courses' size, geographic reach, and (in some cases) for-profit nature. "Professors teaching MOOCs should ensure that the materials they distribute are theirs, in the public domain, or appropriately licensed for distribution," Baer cautioned. Course and material ownership vary according to agreements made between an institution and MOOC platform. "Publicly quoted agreements between MOOC platforms, such as Coursera and EdX, and institutions, are neutral," said Baer, and don't interfere with ownership interests of professors or universities -- yet. This could change in the future.

Ownership issues also affect MOOC participants, who will likely be unable to claim the work they produce. Students in traditional college courses retain ownership of classwork. However, because they don't pay tuition or receive credit, MOOC participants are more often considered "users" than "students," and it is currently unclear whether they will attain student ownership privileges, according to Baer. If ownership is important to them, virtual learners should read their MOOC's user agreements.

There are also legal concerns regarding laws that apply to traditional students but may not extend to course users. Such questions include whether or not MOOCs must be accessible to disabled individuals and whether they must refrain from discriminating against protected classes, Baer explained. These concerns stem from the free nature of MOOCs. Because they don't require federal financial aid to enroll, MOOCs may avoid the federal and state laws and regulations associated with federal financial aid -- laws that apply to most college students.

As these courses become more popular, there also remains the concern that MOOC users will claim mastery of courses they did not complete. Some MOOCs are addressing this by offering "verified certificates" to participants who submit photo identification and typing samples; others offer certification to students who pass a final exam.

The answers to the some of these problems remain unclear. MOOCs are still new, and their legal issues will be slowly resolved through individual cases as conflicts arise. For now, Baer suggested, it would be wise for institutions to implement their own MOOC policies to address the many legal issues concerning third-party materials, copyright ownership, and adherence to laws.

"The future is exciting for these courses and the legal issues are not insurmountable," Baer said about overcoming MOOC-related legal problems. She predicted that as MOOCs keep up their momentum, federal and state legislatures will address the legal issues that participants, professors and institutions encounter.

What are your thoughts on the legal issues surrounding MOOCs? Are there any other concerns that come to mind? What do you think the future holds for these courses?