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Academics lose out to online study

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Massive open online courses (Moocs) are, we keep being told, the new way for higher education to go. But what about those who produce the content of these courses?

The move is increasingly towards distance education that offers free (that is, open-access) online courses, which allow the end user, a student in a remote part of the continent, for instance, to acquire knowledge by enrolling for a course and attending classes via the internet.

This is already being done, without any direct contact between the student and the tutor, at the University of the Witwatersrand and the University of Cape Town (UCT) – pioneers locally of this global trend.

These courses aim to address the high demand for university admission and the right of access to know–ledge, which potential students in remote areas may not be able to exercise because they can’t enrol at an institution.

Wits relies on the United States-based service provider edX to roll out its courses, and UCT contracts its distance-study programmes to FutureLearn, based in the United Kingdom.

Within this chain of knowledge dissemination, what seems to be emphasised is both the access to knowledge for the end user and an institution’s branding.

But what about the content producer?
However, what is potentially lost or subsumed beneath it all is the role of the content producer – in this case, the academic author. This is because the content, comprising pedagogical texts, used to develop these courses, will be largely what academics generate as employees of an institution. In terms of the Copyright Act, the institution, as the employer, will be the owner of this content.

Regardless of this, the role of the institution – as the facilitator of an enabling environment that allows for research, knowledge production and dissemination of any research (or other) findings – highlights the importance of the right to academic freedom in this chain’s dissemination of knowledge.

In South Africa’s Constitution, the right to academic freedom falls under the right to freedom of expression because it is listed as one of this right’s forms. In other words, this means that protecting this right is the institution’s integral role.

Because the institution, usually a university, offers an environment that allows academics to pursue research and publish their findings, when they acquire knowledge as a result and reduce it to a material form – be it as class notes or study guides – someone owns the copyright of this form. The copyright then becomes the vehicle, or package, of knowledge, which the copyright owner has the monopoly on before it is disseminated to any students.

This brings universities’ copyright policies into the spotlight because it shows there is a correlation between academic freedom and copyright ownership. These policies regulate the type, ownership and use of work produced in the institution.

Where a university’s policies are broad enough for it to retain ownership of all work its staff produces, academic authors can rely on the right of academic freedom to assert a degree of ownership over some works.

Floodgates
Moocs have opened up the floodgates of knowledge dissemination and, at the same time, exposed the importance of clarifying knowledge ownership within tertiary institutions.

Where a university specially commissions content used for Moocs from an academic, the university’s ownership of this content should be uncontested because the academic would presumably have tailored it specifically to the institution’s instructions. But academics can and do happen to develop pedagogical content, while employed by an institution, that finds its way into Moocs.

Therein lies a problem: because of academics’ contracts with the institutions that employ them, they cannot use their own work on any different platforms, commercial or not. And this should raise concerns about infringements of the right to academic freedom.

Kundayi Masanzu is a copyright lawyer. This is an edited version of his article in the South African Intellectual Property Law Journal, November 2014 (volume 2)

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