By Robert Reilly
How unions should view bargaining in the MOOC milieu.
Until recently, massive open online courses have not been an acute threat to traditional higher education, as most people accessing a MOOC were essentially auditing the class, earning, upon completion, at most a certificate for their efforts. They did not earn college credit.
That format, however, is beginning to change. This fall brought the news that the Georgia Institute of Technology plans to offer a master’s degree in computer science via MOOC starting in January 2014, and the University of Maryland, University College, plans to award transfer credit for MOOCs.
Soon, your college administration may ask you to move over for MOOCs.
In the MOOC environment, faculty will need to negotiate strong language covering working conditions, academic freedom and intellectual property. In addition, MOOCs raise issues concerning control over quality and standards, credentialing and attempts to narrow the curriculum. And using MOOCs may result in the disaggregation of work and the contracting-out of work. These issues are now snapping into focus as colleges are offering credit for MOOCs, and powerful entities, like the Bill & Melinda Gates Foundation, throw their support behind them.
Bill Gates laid out some of his ideas recently before the Association of Community College Trustees, saying that MOOCs can be used, in his words, to “flip the classroom”—meaning that students listen to the MOOC lecture at home and come to class to do their assignments. In this way, according to Gates, MOOCs will “increase the one-to-one time available between faculty and student.” (See sidebar.)
Others may view it differently, seeing their academic freedom lost to the rock star professor on the MOOC and being relegated to a glorified teaching assistant, spoon feeding someone else’s content to the MOOC students.
This picture of Gates’ flipped classroom may give us a good framework for analysis of the issues for collective bargaining.
Those who see themselves as the lecturer in the MOOC—perhaps characterizing themselves as early adopters rather than rock stars—may see issues of intellectual property. They may ask: Who will own the course and the rights to use it? Without proper written agreements addressing them, the answer is likely to be that the college owns the course, the right to use it and the compensation flowing from it.
Determining under copyright law whether a MOOC is “work for hire” or whether the faculty member is the “author” of the work, adjusting the rights of the school and the faculty to use and be compensated for the MOOC, and settling other intellectual property rights between the faculty and the college regarding the development and use of MOOCs, all may be addressed through collective bargaining. These are important considerations, as, generally, if a faculty member creates a MOOC for a college as a work for hire, he or she is not the author of the work and does not hold the copyright; rather, the college does. While there may be some exceptions to the work-for-hire doctrine for scholarly work produced by those who must “publish or perish,” a work for hire, generally speaking, is a work prepared by an employee within the scope of his or her duty. In such cases, the employer is usually considered to be the author of the work. This relationship, however, may be adjusted through collective bargaining.
Similarly, where the faculty is considered to have authored a MOOC, compensation for the college’s use of the MOOC may be subject to collective bargaining.
Existing collective bargaining provisions addressing “distance learning” may or may not be applicable to MOOCs, depending on the particular language used in the contract, so this may be the first area in an existing collective bargaining agreement to look at. For example, to address the work-for-hire issue, contract provisions might say that the responsibility for developing any MOOCs is the faculty’s and that the college is not responsible for compensating faculty for developing MOOCs or reducing faculty workload so they can spend time developing MOOCs. The college, however, will want something for giving up any work-for-hire claim with respect to MOOCs, so perhaps language could be negotiated giving the college a free license to use MOOCs developed by the faculty for a period of time. The college may also want an agreement not to compete, which also may be subject to collective bargaining.
Faculty, however, might not have the resources to develop and produce MOOCs on their own and may, in fact, need the college’s help. If the college needs to provide support to the faculty for this purpose, ownership rights can be shared in a manner that may be subject to collective bargaining.
Faculty may wish to negotiate for intellectual property rights not only for those works they author on their own but also for those works designed and produced as a team, when they are members of such teams. Compensation for the workload generated by the MOOC may also be subject to collective bargaining.
From a different perspective, faculty’s use of a college’s resources without its permission could result in disciplinary action against the faculty.
Faculty “guiding on the side” in Gates’ flipped classroom may have concerns over academic freedom, since they are now, essentially, teaching someone else’s course, to the extent they are teaching at all. This may remove the faculty voice in the curriculum, and it may run afoul of existing agreements and understandings regarding academic freedom.
The Professional Staff Congress of the City University of New York recently sued CUNY over its so-called Pathways plan, acting to protect its rights to shared governance procedures and fighting back against an external standardization of the general education curriculum. That plan did not involve MOOCs directly, but it was analogous given that it allowed a CUNY college to award credit for courses not taught by the faculty of that college.
Other so-called seamless transfer programs—such as Open SUNY, which essentially guarantees transfer credit using home-brewed MOOCs and awards college credit for independent commercial MOOCs—could all lead to cookie-cutter courses over which the faculty might have no control.
Of course, some faculty may want to use a MOOC as a component of the courses they teach; indeed, they may want to have their students mix and match, or compare and contrast, various MOOCs as part of their courses. Doing so, however, may require the college to obtain licensing agreements with the MOOC providers.
Job security and workload
MOOCs may raise real concerns for some faculty about job security. Generally, protection from layoff may be subject to collective bargaining, and so may contracting-out bargaining unit work in particular. For example, a collective bargaining agreement could give the employer the ability to contract for MOOCs, provided that doing so would not result in any layoffs.
Looking through the other end of the telescope, MOOCs may increase the workload for some faculty. Whereas faculty teaching a traditional class were responsible for a set number of students, limited perhaps by the number of seats in the lecture hall, faculty teaching a MOOC may be responsible for a “massive” number of students. In this regard, faculty may wish to bargain very clear maximum class-size provisions.
Coursera suggests using “peer assessments,” essentially using students to grade the work, but this raises questions of unit work and contracting-out. Faculty may wish to bargain provisions stipulating that no student will earn college credit without having had at least one hour of faculty contact.
Whether compensation for MOOCs is service for pension purposes is another issue to consider.
Finally, we look briefly at the mechanics of MOOCs. Where the college intends to use a MOOC provider such as Coursera, edX, Udacity or some other provider, there should be a contract negotiated between the college and the provider. Usually, the collective bargaining agent for the employees of the college will not be at the table when the college negotiates with the provider, but its existing collective bargaining agreement and its collective bargaining demands may influence the college’s negotiations with the provider.
There are many potential sticking points in the relationship. MOOC providers will no doubt want to standardize and control the content they provide on their platforms, and they will want to impose their own standards. They may insist on having the rights to remove any content not meeting those standards. Again, this may entangle MOOCs with the faculty’s academic freedom.
MOOC providers probably will not want to be involved in any intellectual property disputes with the faculty and may seek to negotiate to place that burden on the college. Similarly, MOOC providers likely will want to be able to use any content uploaded from any particular college on a worldwide basis and might insist on having a license to do so.
Once content is uploaded and digitized, it is easy to manipulate, and, in most academic fields, the content will need to be updated. What faculty member does not want to continually edit and rewrite his or her material? So, on the one hand, it is not hard to foresee that a MOOC provider may negotiate for the right to edit or supplement a MOOC after it is uploaded—improving or enhancing it, in its view—or make a montage of MOOCs, combining content from various MOOCs into one. On the other hand, faculty will want to keep the MOOC they uploaded current, and they will need the right to edit the content they uploaded onto the MOOC’s platform. So, while the contract between the MOOC provider and the college will be separate from the collective bargaining agreement between the faculty and the college, the terms of one will certainly have the potential to influence the other.
In sum, regardless of whether Bill Gates’ picture of a flipped classroom becomes the reality, MOOCs have the potential to shake up the world of higher education, if not turn it upside down, especially if students can earn college credit for taking MOOCs.
Collective bargaining, however, may be able to adjust the rights and obligations of faculty and colleges—and influence the negotiations between colleges and MOOC providers—to ensure faculty’s intellectual property rights and academic freedom are protected, while providing for job security and just compensation.
Robert Reilly is an attorney with the New York State United Teachers/AFT. This article is not intended as legal advice, and any questions concerning copyright law should be addressed to competent counsel.
Reprinted from the Winter 2013-14 issue of On Campus.