Legal issues

Individual Strand synthesis – Isobel Falconer and Karen Smith


IPR-related issues form the bulk of the legal issues encountered by all individual projects. However, one project has also raised the issue of institutional liability for the conduct of users in dynamic resources (eg. forums) hosted on their servers. The unwillingness of institutions to shoulder this responsibility may hold individual-scale OER release projects back.

The work involved in clearing rights is still a barrier to OER release, and several projects concluded that creation of new materials was considerably easier than to try clearing existing ones. To some extent, though, the closeness of the individuals leading the projects to the OERs released (generally they were the authors of the materials) lowered the perceived risk; they knew at first hand what assets were included in the materials and believe that the rights had been cleared. Their institutions, however, have no such assurance, and takedown policies have been used by several projects to reduce this perceived risk. Although takedown policies may aid in the limitation of risk, the law-focused BROME project considers that further investigation is needed of the concepts of where liability lies of honest mistakes.

Most projects are using CC licences. Some are also seeking written contracts with contributors. In preparing these they have been consulting both JISC Legal and their own institution’s legal experts.

Projects have encountered very variable support over rights clearance in their institutions. While all have operated within their institutions IPR policies, at least one has held back from pushing for clarity over areas of ambiguity for fear of a a clamp down and consequent less favourable policies.

Detailed questions and evidence

Are ownership and legal issues still perceived as a major barrier?

The work involved in clearing rights still seems a barrier

One of the main issues is that rights clearance is hugely inefficient, however once this has been undertaken the work is released as OER then subsequent work can be used and re purposed by other parties. (BROME final report)

Perceptions of risk may be easier to overcome for individuals than for institutions: eg.

The main depositor would be the author of this report and thus there was less inherent risk as I would know exactly what would be transferred to OER format and subsequently deposited. And this may make it easier to clear rights from individuals: (BROME final report)

agreement from contributors was needed for the new study skills materials to be created by another JISC project (TELSTAR UCLan). Assistance in identifying topics and sourcing materials was provided by WISER, the UCLan study skills unit. Some of the materials from WISER were converted into online OERs, others were specifically written for the TELSTAR project as there were no materials available. Contributors for the study skills materials were all part of the TELSTAR project team and no difficulties were encountered with IPR agreements for these contributors.(EVOLUTION final report)

Takedown policies can help mitigate the perceived risk: eg.

It was decided that the repository web site would have a takedown policy as it proved impossible to identify all third party material. However, more work is needed in this area (EVOLUTION final report)

The other aspect that needs further investigation is the concept of the reliance on the open education resources that have been created, 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)
Brome takedown policy

An alternative approach to a takedown policy is to exclude all third party material from OERs: eg.

One important provision of the openSpace IPR Agreement is the exclusion of Third Party materials from UCF OERs. It was the project team’s desire to remove a level of complexity in releasing OERs (openSpace final report).

Very variable support at institutions: in some places just ‘asking the question’ about IPR can be seen as dangerous, leading to increased scrutiny and problems. Asking the question about institutional IPR can help clarify the situation, but pushing it may have an adverse impact: eg.

to starting the project, we were aware of the university’s IP policy and an objective for the project was to clarify the university’s position on the use of open licenses such as Creative Commons. Following a meeting and further email exchanges with the university’s IP Manager who works in the Enterprise office, we found no fundamental objection to the use of such licenses for ‘scholarly work’ (inc. research, teaching and learning materials) at the university. Our existing IP Policy states that the university waives copyright to ‘scholarly works’ and, by implication, academics are therefore free to choose an open license if they wish within the terms of any funded projects. IP is managed by our ‘Enterprise’ department and there does not appear to be any desire by that office to vet the work of academics. Their approach is principally supportive and collaborative where IP can be clearly exploited and academics wish to do so. On this basis, we felt no need to clarify the matter any further. In fact pressing the point further may even result in the existing, favourable policy being questioned. (Chemistry FM final report)

Most projects are using CC licences. Some are seeking written contracts with contributors, and looking at different ways of accrediting individuals and recognising originating institutions Using creative commons licences: eg.

The OERs are licensed under a non-commercial share-alike license. There was a natural affinity with the non-commercial clause in that we did not wish to see the resources being exploited in this way and the ‘viral’ share-alike clause ensured that that open re-use remained enforced (Chemistry FM final report)

Support from institution and JISC Legal is valuable, particularly on contracts for contributors to sign:

The project team sought advice from the UCLan digital copyright and IPR specialist as well as using the guidance from JISC legal. As a result a contract was created using for all contributors to sign (EVOLUTION final report).

The PM sourced a template IPR Agreement from the UKOER website and made initial modifications. The Course Leader, Head of the School of Media and the Pro Rector External Relations and Knowledge Transfer made additional alterations. The final agreement was signed off by Pro Rector External Relations and Knowledge Transfer. The agreement, which the PM shared with the other UKOER project strands, was presented to the originators of the OERs for their signatures. (openSpace final report)

What are the IPR issues relating to hybrid, multiply-authored resources?

Where students are involved in OER production, future problems can be avoided if the students agreement to open release is sought as a condition of their project: eg.

The software has been developed over a number of years, with major contributions from final year project students. The contributors have been contacted and asked to reconfirm permission to make the software open-source. This was a precaution, as the original development of the software was undertaken on the understanding that it could be made available as open-source and open-learning resources. (Java Breadboard final report)

To support this, clear institutional policies on ownership of student work are needed: eg

Not all universities have a clear IP ownership policy for student work, and even if it is believed that there is one in place, a sensible advisement would be for thoise developing education software in the same way to define from the start the intention for open resourcing, to keep the option clear for future exploitation (Java Breadboard final report)

Where a community of OER users develops, the institution may no longer be able to ensure that contributor contracts are signed. OpenSpace includes a prominent statement that assignments and forum contributions posted will be licensed under a CC licence at every point at which students are asked to contribute: eg.

A suitable licence agreement for depositing source code in OER repositories needs to be developed: eg.

Final work on the collation of the deposits has been completed, with work uploaded to Jorum, and addition as likely to be made in the near future.The source code will be available from Jorum if a suitable licence arrangement can be identified, but it has also been placed on SourceForge, a site dedicated to open-source code management (Java Breadboard final report)

What other legal issues arise?

IPR is a major concern, but is not the only legal issue. Liability for the conduct of forums is also an institutional concern that has affected individual projects: eg.

One of the issues we have encountered is the issue of developing a user community using appropriate technical tool such as discussion groups. Although these facilities are of course widely available and technically do not present problems, the issue is of ownership – if a university employee sets up a discussion group then the university is ultimately responsible for its content, and this would imply a level of monitoring and support that could not be justified or supported. It would make the university legally responsible to ensure that the user forum does not contain anything illegal or defamatory in nature.It should however be less problematic to establish a closed forum, which UK academics can join. This is also an area we may investigate in the future. If Jorum were able to provide a facility to set up discussion threads aligned with each Jorum Deposit, this would remove a significant obstacle for wider engagement with the potential user community. The idea being that the community would ideally ‘help itself’ by virtue of the discussion process, and occasional input from experts. (Java Breadboard final report)

Summary of approaches to IPR issues (over and above CC licencing)

Brome: Takedown policy
openSpace: Contributor IPR agreement excludes 3rd party material
Evolution: Contract for contributors; takedown policy
Java Breadboard: Source code on source forge under open code licence (suitable licence not yet available on Jorum)

Type of licence used (where specified in final report)

openSpace: non-commercial CC
ChemistryFM: non-commercial share-alike