MOOCs: Massive exposure and liability: Are you legal?

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The Americans with Disabilities Act of 1990 (ADA) ~ Sec. 12132, Discrimination, states “ . . . no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity.” [1]  MOOC technologies greatly amplify existing issues regarding exposure and liability. As with scalability and support, challenges with respect to accessibilitycopyright, and fair use will be magnified in a massive learning environment. You and your faculty and staff will need to consider institutional exposure as you contemplate entering the MOOC fray.

Academic libraries have long dealt with all of these issues regarding curricular materials. In October 2012, Brandon Butler of the Association of Research Libraries (ARL), in a brief on the legal and policy Issues that MOOC technology raises, wrote: “Some of the key legal issues that MOOCs raise for research libraries revolve around copyright and the use of copyrighted content in this new context, while others relate to open access and accessibility.”[2]

Accessibility. Butler reminds us that the law “requires educational institutions to provide access to educational opportunities to all students on an equal basis without regard to disability.”  The Rehabilitation Act, passed in 1973, requires that any educational institution receiving federal funds must comply with regulations preventing discrimination of students with disabilities. Institutions must accommodate the needs of these students in order to ensure that they have equal opportunity to engage in their academic work: “The Americans with Disabilities Act (ADA) bars public colleges and universities from denying services, programs, or activities to disabled students, and prohibits private institutions from discriminating against disabled students, as well.”[3]

Butler goes on to say that these requirements “apply to university efforts on MOOC platforms, despite their being cutting edge or pilot programs.” He reminds us that the US Departments of Justice and Education have already “pursued this issue with respect to early efforts to adopt e-readers in universities, warning institutions that use of non-accessible Kindles, even for pilot programs, would violate both Section 504 and the ADA.”[4]

[See US Dept. Justice, Joint “Dear Colleague” Letter: Electronic Book Readers, June 29, 2010, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-20100629.html; US Dept. of Education, Office of Civil Rights, Frequently Asked Questions About the June 29, 2010, Dear Colleague Letter, May 26, 2011, http://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.pdf.]

Ensuring accessibility compliance is not easy. The design of commonly used technology (web pages, blogs, wikis, and PDFs) and their integration with assistive technology devices for use by individuals with disabilities is a significant concern and should be addressed at the front-end of course development and delivery rather than after the fact. It is more difficult and costly to re-engineer materials for accessibility to the disabled than to practice appropriate design from the outset. Academic libraries routinely take steps to make accessibility a priority, and, as Butler’s brief illustrates, that ethos will by necessity extend to MOOC content.

Schools that actually have the available resources are generally able to cope with the challenge of ensuring accessibility of their online resources. For example, the Illinois Center for Information Technology and Web Accessibility at the University of Illinois at Urbana-Champaign has done a great deal of work developing criteria for evaluating instructional resources for ADA compliance. On their website they note specific challenges for colleges that decide to deploy online learning resources:

“If not designed with accessibility in mind, Learning Management Systems (LMS) can pose accessibility problems for students and instructors with disabilities . . . Some LMS tools—Discussions, Quizzes, Chat, or Wiki tools, for instance—can be more problematic than others. Learning Management Systems are becoming richer and more complex applications, and if they are not designed with accessibility in mind, it can be next to impossible to make them accessible and usable to users with various needs.”[5]

Similarly, MIT works hard to ensure that the OpenCourseWare accessibility standards are met: “We spend a lot of time on the accessibility of PDFs . . . We work closely with the MIT Adaptive Technology for Information and Computing Lab to ensure that the MIT OpenCourseWare course sites are as accessible as possible.”[6] (http://ocw.mit.edu/help/faq-technology/)

Schools like MIT, Georgia Tech, and the University of Illinois at Urbana-Champaign have significant resources to bring to bear on the development of accessibility-compliant resources. As your campus considers online learning in the context of institutional mission and strategic priorities, engage the campus and survey existing policies and practices including copyright, intellectual property (who owns MOOC content developed and delivered by your faculty?), and accessibility.

            Fair Use and Copyright. In addition to accessibility, MOOCs raise legal questions with respect to copyright and fair use. In February 2013, Stanford University Libraries hosted a panel on “MOOCs, Online Education, and the Library.”  One of the panelists, Merrilee Proffit, Senior Program Officer at OCLC Research, shared results from her research on Libraries and MOOCs. She pointed out “copyright issues are making universities cautious, since the classes most often provide access to learning materials to users outside the usual licensing institutions.”[7]

Colleges and universities do well to maintain a cautious approach. It is not clear if MOOCs, especially when delivered in concert with for-profit providers, can assume legitimate use of course materials based on traditional applications of statutory exceptions or reliance on license agreements.

As for-profit providers and colleges and universities struggle to define business models for MOOCs, including potential revenue generation schemes, the status of a MOOC course as “non-profit” grows less certain. The more a MOOC partnership resembles for-profit publishing rather than non-profit teaching, the less likely it is that traditional teaching exceptions for colleges and libraries will apply to MOOCs. These traditional exceptions and licenses may require reexamination in the MOOC world.

Colleges and universities clearly have a part to play in helping to determine the next steps with respect to compliance and legitimate use in the context of MOOCs and online learning. Academic libraries in particular have a persistent role to play in identifying the issues and questions, then working with their institution, partner organizations, publishers and providers to define potential paths to success. The library investment in developing and managing relationships with publishers represents a significant resource in your consideration of MOOCs.

With respect to the modification of license agreements, Academic Impressions interviewed Kevin Smith, director of scholarly communications for Duke University’s Perkins Library, in January 2013 (“How will MOOCs Affect Fair Use and Copyright Compliance?”). In the interview, Smith argues that colleges and university libraries “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.”[8] Despite concerns to the contrary, Smith maintains that publishers will in fact be amenable to flexibility with respect to MOOCs specifically because of the expansive market that MOOC participants represent.  Smith argues that instructors recommending (or requiring) texts will lead to spikes in sales for publishers. He describes a situation in which a publisher initially denied a request from an instructor to use copyrighted materials in a MOOC that she successfully used in her traditional classroom.  Smith describes how his office persisted, asking the publisher’s permissions office to check in with the marketing group: “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.”[9]

Not everyone shares Smith’s enthusiasm, nor does every campus has the negotiating clout of larger academic libraries. However, as more schools develop and deliver mission-driven online learning programs, there is opportunity to identify new consortial approaches to leverage the “marketing power” of like-minded institutions. Campuses are poised to leverage the success of existing library consortial models to address the exposure and liability concerns that MOOCs and other online learning models raise. Institutions will do well to review their strategy for inter-institutional collaboration and cooperation, so as to position themselves successfully in negotiations with providers and publishers in the context and scope of expansive online learning models.

In addition to the significant concerns of support, exposure, and liability that implementation of MOOC-scale information technologies bring, there are other, technology-related issues to consider.

Cited Works:

[1] “Americans with Disabilities Act of 1990, AS AMENDED with ADA Amendments Act of 2008.”

[2] Butler, “Issue Brief: Massive Open Online Courses: Legal and Policy Issues for Research Libraries.”

[3] Ibid.

[4] Ibid.

[5] Illinois Center for Information Technology and Web Accessibility, “A Comparison of Learning Management System Accessibility.”

[6] MIT OpenCourseware, “FAQ: Technology Free Online Course Materials.”

[7] Makokha, “In Case You Missed It: ‘MOOCs, Online Education, and the Library’ Report.”

[8] McDonald and Smith, “How Will MOOCs Affect Fair Use and Copyright Compliance?”.

[9] Ibid.

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