UKOER pilot legal issues

Legal issues were expected to present some barriers for projects but most underestimated the amount of time this would take up. Projects across all three strands agreed that the costs and effort involved in clearing rights for existing materials was not viable, especially where third party rights are involved, and that it would be preferable to concentrate on ensuring that new content should be designed and developed with openness in mind.

Partners dealt with third-party materials by replacement, seeking permission, or removal. For some this took a great deal of time. Partners are now better informed about the use of third party content, though one impact may be to make them less likely to use third party materials in their teaching resources in the future. (S4S final report)

For most projects the Creative Commons Licenses to a large extent simplified actual release of content, although a concern was expressed that the CC approach may mean open resources are buried in search engine rankings. Some developed written contracts with contributors, and looked at different ways of accrediting individuals and originating institutions. Projects received advice on both incoming and outgoing rights clearance from the JISC Legal service, and are in some cases found themselves to be the resident experts in their home communities.

much of the advice offered to staff on OER has been about copyright and IPR, focussing on legal responsibilities and the risks to the University of Copyright Infringements. There is a strong case for focussing on the more positive aspects of Open Access by promoting Creative Commons content that can be integrated into learning material. (OpenSTAFFS final report)

Ownership issues proved to be complex with a range of institutional practices around IPR and a lack of understanding within institutions about who owns the IPR to learning and teaching materials. The experience of the subject strand was that legal implications were not fully considered until institutions were asked to sign a consortium agreement i.e. that verbal permission was fairly readily given, but written permission was more problematic. The individuals strand found that rights to student-produced material are a particularly grey area. The projects helped to tease out these issues and make ownership clearer to all parties which is particularly important in relation to attribution. Generally, they found a need for institutional policy to catch up with the reality of digital media, which are blurring the boundaries between creators and reusers of resources and challenging existing IPR arrangements.

Without doubt the most time consuming element for projects in releasing existing content was that of provenance. Particular problems arise in clearing copyright for materials created from multiple sources and in multiple media, when the logistics of just tracing the originators can be daunting.Tracing the origin of content and trying to track down owners and gain permission to release was often unfruitful. Many projects decided to either publish/deposit the resource without the offending item or to abandon publishing the whole resource if pedagogy was adversely affected.

Where there was any risk of copyright infringement… the project team removed the suspect images. Often this did relatively little damage to the pedagogic integrity of the material. In some cases, of course, the approach damaged the resources too much and the decision to release as OER had to be abandoned. (Berlin final report)

All projects were working within an institutional IPR framework, and support from the institution was very variable. Although institutions tend to have a Copyright Officer, these do not necessarily have an understanding of issues around open release, and projects opened up some difficult questions around risk and how the institution was prepared to deal with this issue, with several projects involving institutional lawyers or legal advisors. Some institutions took what they perceived as a ‘sensible’ approach whilst others were much more risk averse. In some institutions just ‘asking the question’ about IPR was seen as risky, leading to increased scrutiny of project activities and new barriers being placed in the way of project outcomes. Project activity contributed to institution-wide discussion around IPR and led to many documents offering guidance to staff, which may also be of significant value to similar institutions. However, several projects commented that one-to-one support from an expert (from JISC Legal) was essential, as guidance materials could not cover all the possible scenarios or the nuances of practice in different institutions and subject areas.

There may be a perception that releasing content as an individual, or within a subject consortia poses less of an issue in relation to IPR, which would seem to imply that there was less risk involved. This also raises issues in relation to institutional branding – if an individual produces materials as part of a contract with an educational institution then they need to be very clear about ownership and what institutional policies mandate in relation to open release, particularly if the institution is identifiable on the resource. To a large extent this has probably not been an issue to date as most institutions have not had OER strategies or policies. As more institutions include OER within their institutional documentation individuals may find it more challenging to deposit outside of their institutions. An interesting pattern emerged for some subject consortia members who found that depositing within the institutional repository provided a useful managed place to deposit which could then be referred to from the subject community service and wider portals and services.

Most Institutional strand projects emphasised the need for a robust ‘takedown policy’ which was seen by many as an important mechanism to allay fears within the institution around IPR. There are several examples of takedown policies available below.

…takedown notice may aid in the limitation of risk however the issues concerning where the concept of liability lies and the concept of honest mistake needs to be considered. How confident are you in OER, even if it is labelled do you have to show due diligent in tracing down the licence for each element of the OER package?(BROME final report)

U-now repository takedown policy
Unicycle takedown policy
Brome project takedown policy

These issues are discussed in more detail in the strand pages:
Individual Strand – Legal Issues
Subject Strand – Legal Issues
Institutional Strand – Legal Issues

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