Data Assets and the Future Governance of Higher Education

Digital data increasingly underpins the global economy, representing a key asset for many businesses. Many business models are now defined by the collection and control of data assets, whether that’s in online advertising, AI systems or even car manufacturing. Collecting and controlling data assets enables businesses to capture economic rents from their digital infrastructure and platforms via software licence or digital content via intellectual property (IP) rights. User data is seen as particularly important and valuable in the digitalised economy. Those who control user data create value by profiling people, optimising systems, managing and controlling digital systems, modelling probabilities and making products (Sadowski 2020); they continue experimenting to find further ways to turn data into revenues. The belief in the value of data by policymakers, entrepreneurs and investors led Birch and colleagues to coin the concept of “data rentiership”, which refers to “the pursuit of innovation strategies designed to capture or extract value through ownership and control of data as an asset” (Birch, Chiappetta and Artyushina 2020, p. 3).

How data is governed matters because turning something into an asset reconfigures economic and social relations. Particularly pertinent is the question of control. An asset owner (e.g., DuoLingo as a company owning and operating a language learning app) is able to extend their control over data via follow-through rights that determine the rules of use and operation of their products and services. The relationship between an asset owner and a user is ongoing and is organised via terms of use, which have the legal status of a contract. This is different than when buying a normal product or service, after which a buyer and a seller are quits, with the buyer assuming control rights of the purchased item. With an asset, these control rights can define how a buyer uses an item, like an eBook, a car or software.

We now move to three instances to illuminate concerns that surface with the expanding digitalisation of the higher education sector, which is tending towards these assetised relations and the growth of economic rent-seeking. The first instance is the struggle over IP and licencing of content produced by academic staff employed at universities. With the rise of online courses in a partnership between universities and online programme management platform companies, many stakeholders remain puzzled over who is delivering them and how. In an example from a Guardian Australia investigation, students became concerned when they discovered that they were using content produced by academics no longer employed by the university offering the course. Universities have turned academic content into assets from which they can reap economic benefits over long periods. We might raise concerns about quality, relevance and ethics here. However, our point is to highlight that universities have turned academic content into assets from which they can reap economic benefits over long periods – regardless of whether the content producer is still employed. Academics do not decide what happens with the content they produce, nor do academics profit from the extra fees paid to access the content. Rather, it is the university that benefits. Admittedly, there are differences in who owns the rights to such content worldwide. Also, this is not to say that the issue of who owns educational content was never controversial before. But this novel context brings new challenges over scale, profits, ethics and quality of new digital assets.

The second instance is that of user data collected by educational technology platforms, and the questions of who controls it and who gets to benefit from it as an asset. A good example is Instructure, a company that operates one of the most known virtual learning environments in higher education, Canvas. If students and staff use Canvas for their studies and teaching via their university, that university coordinates its relationship with Instructure via a contract. Regarding personal data, the university would be the data controller, and the company would be the data processor, which means that it would be the university that decides how the collected user data of students and staff is used. However, as stated in their Product Privacy Notice, Instructure uses user data to “provide, analyse and improve” their products; as well as it “may create and use de-identified or aggregate information – information removed of specific identifiers so that it cannot singly identify you (i.e., non-personal information) – for any purpose”. So despite the university being the controller of personal data, Instructure assetises user data it extracts via its platform and is able to treat it as a valuable resource for current and future products.

Our final instance is edu-marketplaces, platforms connecting learners and instructors. One prominent example is Udemy, which allows anyone to create and deliver courses on the platform. Individual learners who sign up for a course pay a fee. Depending on how many learners sign up, instructors get paid either 37% or 97% of the course revenue (see the Instructure Revenue Share agreement). The content is the property of the instructors; however, the instructor must agree to the Terms of Use, which dictate licensing it to Udemy: “[B]y submitting or posting content on or through the platforms, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute your content (including your name and image) in any and all media or distribution methods (existing now or later developed) … You represent and warrant that you have all the rights, power, and authority necessary to authorise us to use any content that you submit. You also agree to all such uses of your content with no compensation paid to you.” Instructor Terms further dictate that an instructor must grant Udemy various rights, including to “offer, market, and otherwise exploit your Submitted Content”. Consequently, the content is an essential asset for the company, even though it remains the property of the instructors. As the platform owner and a market intermediary, Udemy sets all conditions of operations, access, user rights and so on. Users (instructors and learners) must accept all terms if they want to use the platform.

These three instances are only a few examples of the changing relations between learners, teachers, universities and platform companies. As more of our activities in higher education are mediated via digital technology, we need to raise questions about what kind of digital artefacts are being created, what is their legal status, who has rights over them, who monitors their impact, and who can influence such impact in case of assets. As we argue in the case of higher education, and other scholars argue in other sectors of the digital economy (e.g. Pistor, Sadowski, Viljoen), we must urgently address how user data and other digital assets are governed. These are new questions and challenges for higher education stakeholders and are key for the sector’s future.