Copyright and E-Learning
Business Models: April 30th, 2004
By Paul Stacey
Let me be clear from the start. I'm no lawyer.
I'm more of an optimist than a pessimist and when things get legal the focus
shifts more to mitigating worst case scenarios than realizing new opportunities.
The music business from Napster to the latest
"Grey Album" by DJ Danger Mouse, a remix of the Beatles "White
Album and rap artist Jay-Z’s “Black Album” http://www.illegal-art.org/audio/grey.html
has been hitting up against intellectual property and copyright big time.
But in the context of e-learning, copyright and
intellectual property are rarely talked about. They swirl as undercurrents below
the surface, fraught with emotion associated with earning a living and legal
complexities that can make your eyes glaze over. At the risk of sinking in
quagmire I thought I'd pull them to the surface and look at them in light of
their impact on e-learning business models.
Copyright's origins go back to the days of the
printing press. Laws passed in England during the 1600's and 1700's established
the rights of authors to a "monopoly" on their work for a fixed period
of time (initially 14 years). As a result of these laws authors gained enough
financial benefit to continue to produce new works and, after a set time limit,
works passed in to the public domain for others to use in the creation of new
works.
Copyright law is different from country to
country and of course has evolved over time since the 1700's. One area of major
change has been progressive amendments increasing the length of the copyright
term which now is typically the life of the author plus a certain number of
years. In Canada it is the life of the author plus 50 years. These extensions to
the duration of copyright term have raised concerns over the length of time it
now takes for works to enter the public domain and the potential negative impact
this may have on society, culture and in our case education.
Another major force creating copyright law
change is technology. Every major technological advance, including the
photocopier, the cassette player, VCR's, and now the Internet has met with a
legal crusade that attempts to block its use. Publishers, media companies, and
other copyright industry groups have continuously mounted legal campaigns to
curtail release and use of these technologies. In every case the technology has
turned out to be a boon not a threat. The movie industry lobbied hard against
the VCR. Now video sales and rentals are one of the largest sources of revenue
to that industry.
It is particularly interesting to note that at
its core the Internet itself works by making copies. When you launch your
browser and view a page on a web site the hypertext transfer protocol retrieves
the web page and stores it (temporarily) on your computer. Seen in this light
any attempt to prohibit copying on the web potentially renders the very activity
of the web browser illegal.
The Internet has quickly become an essential
means of transmitting e-learning intellectual property as content in the form of
courses and other learning resources. With that rise has come uncertainty in the
minds of developers, faculty and distributors alike as to the copyright status
of e-learning intellectual property including online courses, learning objects,
web sites, web-based media, and online evaluations.
In the private sector terms of employment
usually have all intellectual property and rights to work created during
employment going directly to the corporation. Employees are simply work for hire
and agreements signed at time of hiring explicitly cede ownership to the
corporation.
In the public sector terms of employment,
especially in higher education, are not so black and white. Here in British
Columbia terms of agreement between faculty/staff and their respective
institutions vary. In some cases faculty own their intellectual property, in
others the institution owns. And there are shades of grey - sometimes the
institution owns the course but faculty who develop a textbook for the course
can commercialize and publish the textbook without the institution taking a
royalty piece of the action.
In some instances things are neither black or
white or grey but a muddy shade of confused brown. Confusion exists where
policies and agreements are not explicit, are unclear, or simply are based on
terms established prior to the Internet and have not been revised to address
online learning.
Copyright and IP issues surface at the
authoring stage, when online learning content is being created, and at the
delivery stage when content is distributed out to students. The questions are
many and varied.
At the authoring stage e-learning developers
often seek to leverage the rich array of Web resources readily available by
linking to or using existing online material. This makes great sense on many
levels. It makes economic sense by minimizing development time and avoiding
reinvention of the wheel. It enriches the learning value by referencing
examples, case studies and other illustrative material. It even seems in accord
with the nature of the Internet as a vast and freely available information
source.
But is it OK legally? Do publicly accessible
sites on the Internet have an implied license for general use? Do you contravene
copyright by including a screen shot of a web site in your online course? Do you
have to ask permission to link to someone else's web site as a learning
resource? Are screen shots and linking OK as long as use is for education not
commercial purposes?
Putting a url link in your materials is
generally accepted as OK, though there are still outstanding questions about
whether its OK to "deep link" directly to sub pages or whether the url
has to go to the main home page and from there down to the specific link of
interest.
Anything more than an url link, such as a
screen shot, video clip, animation, or digital picture requires permission.
Development teams authoring e-learning often have someone on the team who
"clears third party copyright" by contacting web site and other
digital asset owners and asking permission to use their web site or digital
material in an online course. Most web site and digital asset creators really
appreciate having permission asked and 90% of the time give permission without
cost when use is for education purposes. If the course is intended for
commercial use, the third party may charge a fee or seek a royalty.
While this seems workable on the surface it is
complicated in practice. It is not often apparent who to contact to seek
permission and even when permission is sought it may not always be given in a
timely manner. Having to wait weeks or even months to clear permission to use
third party materials can seriously impact timelines associated with online
learning development and delivery.
The Creative Commons http://www.creativecommons.org
has developed a simple but effective approach to expedite matters. Using the
Creative Commons web site online developers ranging from film, to music, to
e-learning can make explicit their intentions around sharing and reuse.
Developers can specify conditions of use by making choices in three areas -
attribution, commercial use, and modification. Based on choices made by the
author, the digital work gets labeled with a small icon that, when clicked on,
presents the terms of use in human readable form and as a full legal license.
Having this information attached to the digital asset lets developers use it
immediately without having to go through a permission seeking process. The Rice
University Connexions project http://cnx.rice.edu
provides a wonderful example of the application of Creative Commons to online
learning.
The Creative Commons is predicated on an
assumption that developers of digital assets want to share and widely distribute
assets without charging a fee. Essentially the Creative Commons seeks to move
material into the public domain while still retaining some level of control and
benefit for the original author.
Authors of e-learning content need to seriously
look at models like the Creative Commons. In the context of education as a
public service it may make great public policy to adopt a Creative Commons like
approach. In the private sector a customized version of the Creative Commons
model may be required to derive economic value from the learning resource
without just giving it away. Nonetheless in both public and private sector
context the three specification areas of the Creative Commons - attribution,
commercial use, and modification, are key business model components.
Attribution is an intriguing one. To date
online learning content, no matter what sector, K-12, post-secondary, or
corporate has been authored and delivered without a lot of emphasis on who the
author is. In the corporate sector online learning has been sold as libraries of
off-the-shelf content that are completely anonymous. This seems counter to the
content models of other media forms like music, movies, and books.
Books, movies and music have best sellers that
are directly attributable to artists involved. An author who publishes a best
selling book or a musician with a song that tops the charts establish market
reputation and develop a following. Their success creates anticipation of future
works and a pent up demand for more work from that artist.
It is puzzling to me why online learning has
not taken this same approach. Every learner in the world will tell you that
their most memorable learning moments come from interactions with teachers
passionate about their work. Of course in the K-12 and post secondary sectors
classroom teachers have had no way of extending and broadening their reach. They
may be the most incredible teacher in the world, but their impact is limited to
the students in the class. Incredibly at the university level very little value
is placed on a faculty members ability to teach. Performance is measured instead
by research and papers published.
I think e-learning is going to change all that.
Prior to e-learning there have been significant barriers to widely distributing
learning. Making copies of analog learning resources have had significant costs
in time, effort and materials. By contrast there is nearly zero cost and zero
effort in making copies and distributing online learning resources over a
network.
I believe that online learning will also have
its best sellers. Attribution establishes reputation and prestige. An e-learning
author who creates a course or learning object downloaded or used by hundreds or
thousands of learners and professional peers develops a track record. That track
record will enhance their value to the organization they are part of and open up
additional opportunities to leverage that success within and outside their own
organization.
From a business model perspective it may be
necessary for reputation to be established first through free learning resources
attributed to an author and then converting that reputation into economic value
by developing learning resources that are available commercially for a fee.
Expecting the market to be willing to pay for learning resources right away
without first having established reputation I think is a no go.
Reputation will also be developed by making the
online learning resource widely available for distribution. Restricting
distribution of a learning resource limits exposure and reach. Of course online
learning is not just pre-authored content it still involves the active role of a
teacher and teachers still have limits, even on line, on numbers of learners
they can simultaneously teach.
Attribution and reputation will also be
enhanced by giving learners a choice. This is particularly challenging.
Traditionally, in the context of education, learners are faced with a take it or
leave it scenario. They sign up for a program of study from a particular
institution and then have little to no choice about who their teacher is or what
courses they must take. E-learning can change all that.
If online learning resources are going to be
distributed for others to use a key decision will be whether to allow other
users to modify the work or not. Every teacher customizes their learning
resources on an ongoing basis. If you want to maximize adoption and use of an
online learning resource by professional peers allowing modifications is
essential.
In the Creative Commons, if you allow
modifications, you can require the modified work to be shared back. In this
sense the online learning morphs from being a personal work developed by a
single author to a collective work developed by a group of authors. The learning
resource evolves over time and is subjected to a process of continuous
improvement. In the context of e-learning this is a significant paradigm shift.
Even at e-learning's authoring stage, prior to
distribution, this shift toward a collective work is put into motion.
Traditionally course development has been a lone ranger effort of a single
person who ultimately authors and delivers a course in a classroom. In the
context of e-learning this approach is pretty well history with almost all
online learning development being done by teams of specialists ranging from
subject matter experts to instructional designers, media specialists and
technology experts. In that sense most e-learning is a collective work not an
individual work.
This paradigm shift toward a sharing,
collective, continuous improvement approach parallels the open source software
movement.
According to the Open Source Initiative http://www.opensource.org
"The basic idea behind open source is very simple: When programmers can
read, redistribute, and modify the source code for a piece of software the
software evolves. People improve it, people adapt it, people fix bugs. And this
can happen at a speed that, if one is used to the slow pace of conventional
software development, seems astonishing."
Applying this kind of sharing business model to
online learning content seems, on the surface, counter-intuitive. E-learning
content has long been packaged and sold as libraries or programs of courses. Why
would anyone give it away?
MIT's Open CourseWare (OCW) http://ocw.mit.edu/index.html,
initiated a couple of years ago does just that. Here you have one of the
world's most prestigious university publishing and providing free and open
access to over 700 courses from 33 academic disciplines.
Open source software has emerged as a
dramatically different model of development from the usual proprietary licensed
model of software vendors. The business model of open source lies not in the
"licensing fee" but in the services and support associated with
implementation and customization of the software in the context of applied use.
MIT's Open CourseWare initiative is based on a
similar premise to open source software. The excellent OCW
FAQ says it this way, "MIT OCW is intended as a publication of MIT
course materials on the Web, and not as an interactive experience with MIT
faculty. It provides the content of, but is not a substitute for, an MIT
education. The most fundamental cornerstone of the learning process at MIT is
the interaction between faculty and students in the classroom, and among
students themselves on campus."
In other words the value proposition of an
education at MIT is not the course materials, but the interactive experience of
learning. The former can be given away for free, the latter costs money. Again
the MIT FAQ says it well, " MIT OCW will advance technology-enhanced
education at MIT, and will serve as a model for university dissemination of
knowledge in the Internet age. This venture continues the tradition at MIT, and
in American higher education, of open dissemination of educational materials,
philosophy, and modes of thought, and will help lead to fundamental changes in
the way colleges and universities utilize the Web as a vehicle for
education."
Now there's an organization that understands
its' business model.
For me this is the nub of the matter. Online
learning is not just packaged material available over the Internet. It's an
interactive experience. To be successful public and private sector business
models for e-learning must focus on optimizing this interaction along with the
support and services that go with it.
--------------------------
Acknowledgements:
I'd like to thank:
Paul
Stacey, is Director of Development for BCcampus, a collaboration of
post-secondary institutions in British Columbia providing a central portal for
online access to post-secondary online learning courses, programs and resources.
Paul also helps host & produce LearningTimes
an online community for education professionals. Contact: Paul
Stacey
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E-Learning: An
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