Planning and executing a MOOC, a Massive Open Online Course, is not an easy undertaking. It involves a lot of work, including a thoroughgoing reevaluation of pedagogical goals and methods, lots of planning, and extensive technological support to get each module in the MOOC just right. It also involves lots of “new” decisions about copyright.
In the physical classroom we have achieved a relatively comfortable situation, thanks to both fair use and the specific exception in the copyright law for “face to face teaching activities.” And even in the online environment, the so-called TEACH Act gave us some guidance, again along with fair use, for using copyrighted material in online courses. But, with MOOCs, neither of these specific exceptions seem to apply, and the conditions are enough different from anything we have worked with before that even fair use in this context seems to be an undiscovered country. Surely amongst all the uncertainties and obstacles that MOOCs present, copyright is one of the most intractable.
But I want to suggest that there is one simple rule that will make the copyright aspect of MOOC planning much easier. Indeed, it is a rule that can make a lot of thinking about copyright clearer, whether online or on campus. It is simply this: Let the legal analysis follow the pedagogy.
Let the legal analysis follow the pedagogy. Or, to put it another way, fair use follows mission. One of the great advantages of being involved with MOOCs is that they open a space where reevaluation of mission and what is really important to an institution is unavoidable. And in that space we are offered a new/old way to think about copyright, teaching, and fair use.
What does it mean for fair use to follow pedagogy? It simply means that the first question we should ask as we begin any fair use analysis, and especially when we are working with a MOOC, is “why are you using this material?”
This really is not new. The four fair use factors are intended to force us to probe the specific circumstances of the use in question, and the first circumstance they direct us to examine is “why.” But we have become accustomed to asking and answering that question in a routine way—I am using it for education, so I win on the first factor. We should always, in fact, probe further than this, and evaluating fair use for MOOCs is a perfect reminder of why.
The closer the use is to the key pedagogical point that is being made, the easier it will be to construct a compelling case for fair use. “I want to use that article from a prominent news magazine because I am going to examine its argument line-by-line with my students in a class on logic.” “That graph from a textbook is important because I will use it to teach students to interpret data carefully and to be skeptical of how data is sometimes presented to them.” “That image is important because of juxtaposition it makes of two elements, and that juxtaposition is key to the point I will make in this lecture.” In each of these cases, the material being considered is an integral part of the pedagogical point; it would be more difficult for the students to grasp what is being taught without the material. These uses are not merely illustrative; they do not merely make the lecture prettier or more interesting, they enrich the content.
Once we have established a clear and integral connection to the teaching, we really have only one question left—is the instructor using too much? This is the “Goldilocks” rule—the amount used should be “just right” to make the pedagogical point and to help the student comprehend that point. If too little is used, the educational purpose will be undermined; if too much is used, the fair use argument is weakened.
Because our courts have been so willing to find fair use whenever they perceive “transformation,” the fair use argument really does follow pedagogy, because the more closely tied in to the new work—the teaching opportunity that is being created—the material being used is, the more likely it is to be fair use. This is always true, but it is especially helpful when we talk about MOOCs. It encourages us to ask our instructors “how badly do you need this; how central is it to what you want to accomplish?” and then make our copyright decision in the light of the answer.
In the situations I outline above, the argument for fair use is very strong, assuming no more of the original is used than is justified by the Goldilocks rule. But even when the answer we get to that basic question leaves us doubting the wisdom of relying on fair use, we still can take guidance from it.
When someone tells us that any picture of a frog, or the Mona Lisa, or the night sky will be sufficient, we know that we probably should not rely on fair use, and we also need not seek permission for the specific image the professor has found. Instead, we can look for an image with an open license, such as a CC BY, and substitute that licensed image into the lecture. The legal analysis continues to follow the pedagogy, because the answer to that basic question about the teaching tells us that fair use is a good bet OR that a substitute work, one licensed for the purpose, can be used.
Sometimes with a MOOC we will encounter a situation where the fair use argument seems strong, but we still want to ask for permission. Often that will be when a lot of the original work is to be used, or when the original work is subject to commercial exploitation. Even in those cases, what we have learned about the pedagogical point can help us. It can strengthen our request for permission when a clearly articulated reason for selecting the work in question can be articulated. At its best, the ability to articulate a connection to the teaching itself will even justify an appeal to the marketing instincts of the copyright holder. After all, works used in a MOOC will be exposed to a huge number of people who have self-identified a specific interest in a topic. If the material for which permission is sought is shown to be closely related to that interest and that audience, the rights holder will have an added incentive to permit the use. Because of the unique nature of MOOCs, the argument that allowing a free use will greatly increase sales of the original gains enormous power.
Fair use is a servant of good teaching, and insofar as planning a MOOC causes us to reassess pedagogical methods and reassert our fundamental aims, it also reminds us of the core reason we need fair use, and the key questions we need to ask whenever we consider it.
There is one final reason that this principle of thinking and asking first about pedagogy can make the planning of a MOOC easier. It simply makes those of us who are supporting the MOOCs—and the library for which I work is deeply involved in that support—feel better about the extra work we have to do. At Duke the key reasons for becoming involved in MOOCs have been to extend the reach of our teaching, have a global impact, and foster innovation in teaching. The legal analysis that is done by my office as we plan for each specific class needs to be connected in our minds to those purposes. If we isolate the legal thinking and focus on details instead of the larger picture, we both shortchange the analysis and cut ourselves off from those mission-driven goals. In order to know that our small part in the process of creating a MOOC is still a key component of realizing the goals, we simply have to remind ourselves of that simple rul—let the legal analysis follow the pedagogy.