UKOER institutional strand legal issues

 author: Lou McGill

All Institutional Strand Projects had to engage with IPR issues and several utilised the service of JISC Legal for advice and guidance. Although institutions tend to have a Copyright Officer, these do not necessarily have an understanding on issues around open release. Projects needed to take an institutional approach to dealing with IPR issues and 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, which did have an impact on what projects were able to release. Robust take-down policies were seen by many projects as an important mechanism to deal with risk and these have been made available as examples for others to see.

Every project concluded that the costs and effort involved in clearing rights for existing materials was not viable and that it would be preferable to concentrate on ensuring that new content should be designed and developed with openness in mind. OpenExeter did highlight that Copyright clearance should actually be a normal part of the process for adding content to the VLE, and it is clear that projects had to invest so much time in this area because institutions have not previously had a policy (either institution-wide or at faculty or department level) or offered appropriate guidance to staff developing learning materials. Taking an institutional approach to OER release has meant that institutions have had to address the widespread practice of staff using third party content without due diligence. As OpenStaffs highlighted there is a need for a shared attitude to risk.

The value of the learning experience for staff was significant as project teams became experts who then passed on their knowledge to each other and to staff in their institution. The resulting guidance and support mechanisms, although often institution specific, will be of considerable value to the wider community and these are being made available through the OER Infokit.

Problems around tracing provenance and rights clearance had a significant impact on the release of some content, and most projects had to abandon release of materials where the omission of offending components meant that the resource became unusuable in a pedagogical sense. Some projects adopted an approach of including non-cleared content for reproduction only.

Excerpts from project documentation

BERLiN (University of Nottingham)

  • Where there was any risk of copyright infringement (where the University didn‘t have permission to publish images publically on the web for example), 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.
  • Takedown policy – U-now repository
  • U-Now Copyright Statement
  • Open content terms of use in U-Now repository
  • Final report – results from staff surveys

OCEP (University of Coventry)

  • “legalities of ownership” taking an informed consent basis (about getting people to understand benefits too)
  • Complexities of resources linking to unopen content (subscribed database
  • Legal, standards and other similar issues can be overstated and take up a great deal of time.
  • Ultimately OER deposit requires risks to be taken. These risks cannot be ignored but they should not drive policy. They can be sensibly managed.
  • Do not underestimate the value of a strong take-down policy.
  • OCEP Project final report

OpenExeter (University of Exeter)

  • It was acknowledged by many of the staff that Exeter has possibly been more vigilant than other institutions and very cautionary or “risk averse”, compared to other JISC funded projects: ‘Other OER programmes have gone down a very different model and taken more risks. I’m not saying that in strict legal terms that that is not the right choice. The model for OER as done here means it is not possible to take it forward because of the resources that would be attached to it’. The respondent was clearly worried by support issues. However, staff involved in the legal aspects of OER said that they were ‘not surprised Exeter is taking it very seriously’ and ‘there is not a pot of cash available if there is a problem. Although the chance of a hit is low each piece of material up there increases the risk. A low risk is still a risk and there have been past claims where Schools have had to pay out’.
  • ‘I question whether we are sufficiently joined up as a University on how we deliver copyright services…we need to capture the knowledge that has come out of this project and build into our services. There has been a complete lack of knowledge on how to deal with copyright in an open educational environment’.
  • Every situation appears to be different and unique and needs solving in individual sense
  • possibility of diluting pedagocial context by removing uncleared content
  • Open Exeter Project Final evaluation report
  • OER Legal matters interview broadcast as JISCLegal Webcast
  • IPR Compendium flowcharts
  • Licence-in document
  • Identifying provenance of learning materials – guidelines for Academics
  • increased knowledge around IPR issues has resulted in more ‘risk averse’ circumspect approach – Licencing and clearing issues
  • Guidance for content contributors prepared by Head of IPR and University Lawyers

Openspires (University of Oxford)

  • The team also adopted a policy of ‘if in doubt take it out’ for items which may have created copyright issues – question and answer sessions (team generally edited content for non devolved content)
  • as a result of the University’s intellectual property statutes, Oxford academics will tend to own the materials that the OpenSpires project would like to distribute. We, thus, needed to obtain licences to or assignments of the necessary rights from the academics. The licence used for the iTunesU project did not provide us with the rights we needed to achieve Creative Commons release, so we therefore drafted a new licence with much help from the University’s Legal Services.
  • focus group outputs – discussion with academics about CC and licensing
  • legal workflow map
  • llegal policy documents and workflows
  • considering the OTA (Oxford Text Archive) ‘dating agency’ model for material contributed by people external to the institution.
  • Background to the OpenSpires Licence
  • Copyright at Oxford
  • OpenSpires Creative Commons Introduction
  • Copyright in Online Resources: Content Authors
  • Copyright in Online Resources: Content Users (OpenSpires Project, University of Oxford)

OpenSTAFFS (Staffordshire University)

OTTER (University of Leicester)

Unicycle (Leeds Metropolitan University)

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

Yes – many of the staff surveys revealed concerns about IPR and release processes did reveal that these concerns were borne out in how staff incorporated third party content. See Institutional Strand Cultural

OpenSTAFFS ( Staffordshire University)

  • Copyright questionnaire highlighting different understandings – to be repeated later? brief report on copyright quiz available through OpenStaffs blog

Who in institutions and communities takes responsibility for the legality of open content release?

What barriers do they present and what support do they offer?

OTTER (University of Leicester)

  • University’s copyright administrator has been seconded to OTTER team for this project and is responsible for legality of open content release
  • Having a dedicated copyright administrator was critical to enabling OTTER to guarantee that all OERs could be published under an open licence.