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It is characteristic of MOOCs to offer free access to the complete course offering for all participants. However the materials are to be read, used and even reused up to a certain extent (Wahid et al., 2015). Such practices have direct implications concerning Intellectual Property Rights (IPR) and copyright.

When developing a MOOC there are two main IPR concerns that must be taken into account beforehand. The first one is choosing what information, lessons and materials will be included within the MOOC and what are the rights that the MOOC´s promoter has over them. The second is to decide under what terms will the materials be shared to users.

As per the selection of contents and the rights over them it should be taken into account that Berne Convention, to which United States and EU countries are members, states that copyright will protect, from the moment of its creation and without the need of registration “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression” (https://www.law.cornell.edu/treaties/berne/2.html).

Thus, any extract from books or websites, photos or videos used in the MOOC is protected by copyright by default. Consequently, it is very important for the promoters to assess if they are entitled to use third parties’ content that are planning to include in the MOOC (copyright clearance). It is also relevant to define the terms of the license and/or transfer of rights over the content created by third parties and in-house staff.

As per the creation of contents and the use of third parties content it is important to get the consent of the authors by means of a license or general terms and to ensure that such consent covers the different uses of the works in the MOOC. The deliverance of materials to users also has copyright implications, mainly related to the authorised uses (i.e. to read, to copy, to readapt, to repurpose etc.), which are usually included within copyright clauses on the general terms and conditions of the course.

Platforms

The implementation and running of a MOOC needs not only to create the structure, methodology and content for the course, but also digital platform that supports the delivery of lessons, exercises and activities.

The alternatives for the universities are to create their own platform or to provide their MOOCs through already existing platforms. The second alternative is the most popular one since it is cheaper, more flexible and allows benefiting from the level of recognition of already existing MOOC platforms.

Generally the platform is selected depending on the goal of the courses. Additionally, the methodology and the distribution model of both university and host content provider should be taken into consideration when selecting the platform.

The platform provider acts in these cases as a hosting provider. Such position entails certain legal concerns that are going to we exposed in brief. First, it is important to define properly what are the rights and obligations of the platform provider, including the degree of control and access to the content, and to define them clearly in a hosting agreement. Hence, the following issues should be considered before signing an agreement with a content hosting provider:

• Content Ownership and Use;
• Content Placement;
• Content Selection, Modification and Removal;
• Attribution and Branding;
• Flexibility.

Whichever platforms are used, it will be important to comply with relevant laws and regulations around IPR and copyright.

Copyright

Copyright is a law that gives the owner of a work (like a book, movie, picture, song or website) the right to say how other people can use it. Copyright laws make it easier for authors to make money by selling their works. It is one part of a group of laws about intellectual property (the others being trademark and patent law).

With copyright, a work can only be copied if the owner gives permission. If someone copies a work without permission, the owner can say they infringed their copyright. When this happens, the owner may sue for the amount that should have been paid.

Copyright was originally made for books. Before printing presses were made, books could only be copied by hand, which would take a while to do. But when printing presses were made, books could be copied faster and easier. Because of this, some books were copied by people who did not own the book themselves. So lawmakers gave owners the right to copy.  Because technology got better over time, copyright began to cover other things people could make like pictures, sound, and film. In most countries, authors automatically own the copyright to any work they make or create, as long as they do not give the copyright to someone else.

Some people argue that copyright laws make it easier for people to make new works and think of new ideas. After all, if authors get to make money for the time, effort and money they put in, then they will want to make more works later, and make more money. But others believe that copyright laws make it harder to be creative. Without copyright, other people could reuse existing work, and copyright law often stops that.

Fair Use

Copyright over a work cannot be understood as an absolute right. Since the very beginning copyright related treaties such as Berne Convention (http://www.wipo.int/treaties/en/text.jsp?file_id=283698#P85_10661), the Agreement on Trade-Related Aspects of Intellectual Property Rights (https://www.wto.org/english/tratop_e/trips_e/trips_e.htm) or WIPO Copyright Treaty (https://wipolex.wipo.int/en/text/295157) among others, have provided for the possibility for members to establish a series of limitations and exceptions over copyright. Whereas limitations are referred to subject matter that does no require copyright protection (e.g. legislative texts), exceptions are based in the nature of the use (e.g. quotation of a fragment). Both limitations and exceptions may be subject to certain requirements.

MOOCs introduce certain differences to traditional means of classroom-based teaching, which should make us to be reluctant or at least careful when deciding whether or not using third parties’ protected works. Some of these differences rely on the nature of the MOOC itself, such as being profit or not profit or the (larger) potential number of users. Others strongly depend on how the content is used (e.g. for mere decorative purposes) and how is delivered to users (e.g. only during the presentation).

It is worth noting that the exceptions to copyright in the US fair use doctrine substantially differ from the teaching exception in the EU. In general is not advisable to rely in the compatibility of these exceptions without a case-by-case assessment.

Open Licences

There are different types of copyleft or “open” licenses according to the different permissions expressed. . Creative Commons offer a flexible system of licences that allows copyright holders to offer general license under one or more of the following conditions:

• BY- Attribution: any third party using the work must credit the author.
• ND- Non- Derivative: derivative works (i.e. modified, improved or translated versions) are not authorised.
• SA- ShareAlike: any derivative work must be shared under the same conditions of the original work.
• NC- Non- Commercial: the work cannot be used for commercial purposes.

These conditions could be mixed into different types of Creative Commons Licenses (see table below).

Table 7. Open Licence terms and conditions. Source: Creative Commons

Public Domain

The “Public Domain” is composed by every work whose copyright term has expired. There are a number of considerations that should be taken into account when using public domain works:

• The term of protection for copyright works may differ from country to country. As a general rule, the term of duration is, at least, the life of the author plus fifty years, according to Berne Convention. However the term in US and Europe tends to be longer (usually the life of the author plus seventy years).
• Second, it must be noted that works within Public Domain may still be subject to copyright in certain cases (e.g. a translation of a work in the public domain is a derivative work that enjoys copyright protection) or to other related rights (e.g. a 2020 concert that includes a Vivaldi musical piece played by the London Philharmonic Orchestra is subject to their performance rights, even when Vivaldi´s works as a composer have become Public Domain).
• Finally, it is strongly advisable to credit the author. In United States crediting the author of a work in the public domain is optional and even a matter of etiquette. On the other side, in continental Europe the right to the recognition of the works’ authorship is closely linked to the “paternity” of the work and is perpetual (i.e. does not expire).

Open Content

Another possibility is to use third parties’ works that have been delivered under Open Content terms or a general- copyleft or open licence.  According to the David Wiley´s definition of Open Content⁵ it describes any work that grants users a perpetual authorization to:

1. Retain – the right to make, own, and control copies of the content (e.g., download, duplicate, store, and manage)
2. Reuse – the right to use the content in a wide range of ways (e.g., in a class, in a study group, on a website, in a video)
3. Revise – the right to adapt, adjust, modify, or alter the content itself (e.g., translate the content into another language)
4. Remix – the right to combine the original or revised content with other material to create something new (e.g., incorporate the content into a mashup)
5. Redistribute – the right to share copies of the original content, your revisions, or your remixes with others (e.g., give a copy of the content to a friend)

On the other hand, the term “copyleft” comprises a number of general licenses that allow the use of the protected works under certain conditions without the need of an individual authorization. In other words, every user that fulfils the terms defined in the general license is automatically granted a license over the content.

Creating and Developing Content

In recent years, OER have experienced a boost and stakeholders and policy makers have highlighted their importance. The UNESCO (2011) adopted definition of Open Educational Resources is “(…) teaching, learning and research materials in any medium that reside in the public domain and have been released under an open licence that permits access, use, repurposing, reuse and redistribution by others with no or limited restrictions (…)” this definition was based on Hewlett Foundation definition (Atkins et al, 2007).

The main advantages associated to open models is a higher level of replicability and visibility, that lead to higher levels of engagement of the users with the update and adaptation of materials “People will often volunteer to do things you could never pay them enough money to do” (Wiley, 2007). In addition, contributions of users encourage the adaptation of the course to the most relevant areas of the topic, making the MOOC a true demand-driven service.