The other tough issue for Matasar is state regulatory requirements. The first step in developing online courses is a state-by-state analysis of regulatory demands, he says. As a former dean and professor at New York Law School, Matasar understands the importance of compliance with rules. To navigate the legal landscape, he works closely with the office of NYU general counsel Bonnie Brier, who referred other questions to outside counsel Michael Goldstein.
For Goldstein, coleader of Dow Lohnes's higher education practice, IP issues remain the number one concern for online offerings. Ownership in the online world continues to be problematic, he says, and the answers depend on whether content is developed by faculty or by others. "They are fairly complex legal issues, and not entirely resolved yet," Goldstein adds.
And he agrees with Matasar that regulatory problems are pervasive. He notes that education experts are working on a state reciprocity act that may resolve some of the state-to-state variations and requirements. But he doesn't see that coming together in the near future. "It will probably get worse before anyone finds the solution," Goldstein predicts.
Any such agreement in the United States still won't resolve regulatory issues internationally. And that area is moving in two directions, Goldstein says. Sending courses abroad, an American university can partner with domestic institutions in other countries, letting them deal with the compliance headaches. But that creates more transactional issues, he explains. "And there is a vast market for our courses overseas," he notes, "where we're seen as the gold standard in higher education."
In the other direction, Goldstein says more foreign institutions are seeking to explore the U.S. market via the Internet. Online education "could become a very competitive environment," he says, even though everyone seems to still be struggling with finding the right financial model. Competition from abroad, Goldstein says, will undoubtedly create international trade issues.
Other legal challenges abound for online courses. As examples, Goldstein mentions privacy, accreditation and grades, issues with student aid, and possible liabilities if an institution fails to meet U.S. Department of Education requirements on everything from course content to the tracking of students.
Most experts agree that novel legal issues will continue to emerge. But in the new frontier of online education, no one is quite sure what or where. "It's like asking what did the world look like before radio, or before television," NYU's Matasar observes. "We are only beginning to see its power in this space."
This article originally appeared in Corporate Counsel under the headline “Reading, Writing, and Regs.”