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Protections for UW Faculty and Student Intellectual Property in the Canvas LMS

The following information has been reviewed by UW Faculty Senate leadership, and the Special Committee on Intellectual Property and Commercialization will continue to monitor related issues.

When I log in to Canvas, why am I asked to agree to the Terms of Use?

The UW uses Canvas under the terms of the Internet2 Net+ contract; this contract requires that Canvas users individually accept the Terms of Use.   All new users of Canvas at UW (those added after May 16, 2015) will be prompted to accept the Terms of Use.

When I use Canvas, what Terms of Use apply?

Instructure has two Terms of Use for Canvas.  The relevant Terms of Use for the UW and its users are those from the Internet2 Net+ contract, which you can view here: http://www.canvaslms.com/policies/terms-of-use-internet2.

Do the Terms of Use mean that Instructure owns faculty and student intellectual property and can reuse it?

Absolutely not. Often, readers misunderstand the following section in the Internet2 Net+ Canvas Terms of Use:

Your Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Instructure Properties. Instructure does not claim ownership of Your Content. However, you grant Instructure a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Instructure Properties to you and to your other Users. When you as a User post or publish Your Content on or in the Instructure Properties, you represent that you have the authority to grant the aforementioned license to Instructure. Please remember that other Users may search for, see, use, modify, and reproduce any of Your Content that you submit to any “public” area of the Instructure Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.

This italicized phrase in the above passage is the key to the misunderstanding. What this means is that faculty and students grant Instructure the right to use the content only to offer the Canvas LMS services back to UW faculty and students. Instructure cannot claim ownership nor reuse the content for any purpose other than offering the service to the UW.

This or similar language is widely used in Terms of Use agreements for teaching, learning, collaboration, and communications software.

 

Does the UW have a contract with Instructure that protects faculty and student intellectual property?

Yes.  The contract with Instructure was negotiated through the Internet2 consortium to provide very specific protections for faculty and student intellectual property and data privacy. Staff from the UW Attorney General’s Office and UW-IT worked with colleagues from several other universities to craft this agreement, and the specific protections included in it are also found in many other Internet2 contracts signed by hundreds of higher education institutions and vendors. The Internet2 contracts are seen as model contracts in higher education.

What are the protections for faculty and student intellectual property?

For the UW (Enterprise Customer) and our faculty and students, Instructure (Service Provider) has no right to our intellectual property, other than to use it to provide us with the Canvas LMS service.

UW faculty and student intellectual property is defined as follows:

Enterprise Customer Data means all data, including, without limitation, Personal Data and all binary text, sound, image, video or other files, including, applications, that are uploaded to and stored on the Service Provider Platform based on a Customer Agreement by, or on behalf of, an Enterprise Customer or any User through an Enterprise Customer’s or any User’s use of the Services or created by an Enterprise Customer or any User through use of the Services.

And our ownership of that intellectual property is clear:

As between each Enterprise Customer and Service Provider, all rights, including all Proprietary Rights, in and to Enterprise Customer Data shall remain at all times the exclusive property of such Enterprise Customer. This Agreement does not grant Service Provider any right, title or interest, whether express or implied, in and to any data, content or intellectual property of any Enterprise Customer or Internet2, except for the limited right to process, transfer, store and archive Enterprise Customer Data as expressly stated in this Agreement solely to the extent necessary for Service Provider to fulfill its obligations under this Agreement. In no event shall Service Provider gain any right, title or interest, whether express or implied, in and to any data, content, or intellectual property of any Enterprise Customer or Internet2 as the result of any processing, transfer, storage, archiving or any other action taken by Service Provider in respect to such data, content, or intellectual property.

Finally, this data is private and handled in a manner that is compliant with the Family Educational Rights and Privacy Act (FERPA):

(a) Service Provider agrees that Service Provider is a “School Official” (as that term is used in FERPA) with a “legitimate educational interest” in any Enterprise Customer Data that is protected by FERPA and, therefore, Service Provider agrees that with respect to all Enterprise Customer Data that is protected by FERPA that Service Provider accesses, receives, stores or controls, Service Provider will comply with all obligations that FERPA imposes on a School Official. Service Provider will use Enterprise Customer Data only for the purpose of fulfilling its duties under this Agreement and Service Provider will not share, sell, or disclose such Enterprise Customer Data with or disclose it to any third party except as expressly provided for in this Agreement or authorized in writing by the applicable Enterprise Customer. For the avoidance of doubt, Service Provider will not have any Service Provider Contractor/Agents access Enterprise Customer Data unless authorized by Service Provider, and needed to perform the Services herein.

(b) Service Provider’s management and storage of Enterprise Customer Data shall in all respects, including, without limitation, administrative, physical and technical respects, meet the privacy and security standards set forth in the Gramm-Leach-Bliley Act, 15 U.S.C. sections 6801-6809 and its implementing regulations.