Subject Strand synthesis – Helen Beetham
There is 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.
At the same time, there is a risk that raising legal questions about OER may lead to a tightening up of policy-in-practice, at least in the short-term. 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. From the point of view of programme outcomes this interrogation of institutional policy and practice was important, and many projects felt that the impact would be seen in clarification of institutional policies over time.
No less than 77 UK institutions were involved in the strand and therefore were required to sign agreements that committed them to releasing OER. From the point of view of progressing project activities, though, the legal concerns raised by institutions at the CA stage were immensely frustrating.
There is very variable support from institutions for the processes of clearing rights, managing IPR, and licensing. Support from JISC legal was highly valued across the strand. Several projects commented that one-to-one support from an expert was essential, as guidance materials could not cover all the possible scenarios or the nuances of practice in different institutions and subject areas.
Ownership is a complex issue as it is not always clear who owns copyright on academic materials. By default the institution does, though often this is not exercised in practice, and/or may be modified by the terms of employment. If published, copyright typically passes to the publisher.
Clearing third-party rights was found by almost all projects to be more time-consuming than they had imagined. In one case (FETLAR) an eight-month negotiation led to the release of an important legacy resource to the mathematics teaching community. In other cases, resources which had been earmarked for open release had to be abandoned. Actual refusal of a rights request was less common than failure to identify the rights holder, failure by rights holders to respond to a request, or (in the case of publishers) refusal to clear rights in a way that would allow for open release, or unreasonably high charges.
Are ownership and legal issues still perceived as a major barrier?
Findings from projects
Yes, they are perceived as barriers and they really are! Clearing third-party content from materials is time-consuming and perceived by many academics as risky, since the institution rarely takes responsibility for this on their behalf. Licensing content for open release carries a risk to reputation, as well as the potential for reputational enhancement. Academics are often not sure whether they have the right to license their own teaching and learning materials for open release.
OERP interim findings
- IPR is an area where academics are uncertain as to their rights and responsibilities.
- A relaxed approach is often taken to content released to the VLE, which causes problems when they are to be released publicly.
- Often finding the correct internal contact to seek advice from was difficult.
- Obtaining permissions from third party organisations or sourcing replacement materials and combining that with the use of Creative Commons (CC) licences was a major area of difficulty.
- Academics have a reasonably good understanding of copyright within their own institution under the CLA. It is complicated explaining that usual practice does not apply for OER materials.
FETLAR – creators are concerned about derived works that may be of poor quality
MEDEV findings: Variation in who owns IPR: most institutions’ formal position is to own the IPR of any work done by its employees. A significant proportion of institutions audit resources for potential commercial value prior to release. In some cases the individual academic owns the IPR of completed resources if it results from their sole work.
- Most academic partners found that their existing institutional IPR policy, while not appearing to recognise the new digital environments specifically, had enough latitude to enable an OER release.
- An informal permission is granted easily, a formal written permission is more difficult to obtain quickly.
- A robust legal framework is necessary to protect intellectual property and the Creative Commons is an ideal model. However, most of the institutions we worked with appeared to work on the basis of clearing the release of IPR for resources on an ad-hoc basis.
ADM-OER focus group quotes re. IPR: ‘you should be reporting that to YouTube, not sending students to look at it’; ‘there is a fear of going forward at all’
OER-ICS finding: .Institutional concerns about the surrender of IPR are stronger than the concerns of individual contributors and members of the subject community.
Have perceptions changed during the timescale of the programme? Is new guidance needed?
Findings from projects
Some projects are finding a low general knowledge of IPR in the community. TRUE: [academics] are mostly unaware of intellectual property issues, for instance mixing up the concepts of “on open access” and “an open resource” However, others are finding that academics are knowledgeable enough about IPR to want very clear assurances and support. MEDEV: A surprising 60% of respondents to user survey declared they specifically search for resources with a clear licensing statement. This was strong evidence of the value of clear licensing frameworks.
There is some evidence of changes to institutional policy in light of project involvement e.g. CORE materials, Humbox, S4S.
Humbox:we now believe that an academically appropriate approach is one of risk management rather than watertight legal guarantees of IPR arrangements. This has been achieved through CC licenses, user guides, a degree of trust in self-monitoring, and a take down policy to enable rapid response to problems.
OERP In practice, legal advice on hand is of more value than documentary guidance because of the complexity of each case
Bioscience (interim report finding) Most institutions have not updated the IPR guidance for staff with respect to sharing their own academic learning and teaching resources digitally, though many acknowledge the need to do so.
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?
Findings from projects
- Wide degree of variation amongst institutions regarding ownership of policies: in most cases, the library or the Office of Research and Enterprise are identified as the key “drivers”.
- Responsibility for checking IPR of materials incorporated into teaching generally falls on the individual but the school, the Office of Research and Enterprise (or equivalent), learning technologists and clinicians and may also have an involvement.
- It is clear that the MEDEV OER consortium work has led to more meaningful discussion within and between institutions, involving stakeholders that might include the library, knowledge transfer office, e-learning strategy committee, research and enterprise development office, educational support unit, PVC for teaching and learning, IPR working group and academic affairs office.
What have we learned about clearing copyright for third-party materials and resource-elements?
Findings from projects
Clearing third party materials generally involved either contacting individual academics, or contacting publishing houses to ask for release of materials on CC licenses. Projects have made use of form letters and emails provided by JISC Legal and generated or adapted by the project team to support rights clearance in that subject area. There has been a lot of project and institutional learning around this issue. For example, following up an email contact with a phone call when chasing both individuals and publishers.
Several projects entered into negotiations with publishers on behalf of their community, with varying successes. These projects all indicated that they felt a whole-sector approach would be helpful, e.g. for JISC to negotiate with major publishers on behalf of the sector for some kinds of content to routinely be cleared for inclusion in OERs. This would require a benefits case to be made to publishers.
- Publishers often showed complete lack of understanding of the OER movement and CC licenses. Even when it was possible to contact 3rd party owners, they often did not understand what was being asked of them.
- Problems with getting responses from publishers: the ‘clearance loop’ generated by emails and ‘Rights-Link®’ can only be broken by time-consuming specialist negotiations on a piece-by-piece basis
- Material may be affordable to licence for students but prohibitively expenses for open release; or may be licenced for release for limited period only.
- Publishers prefer to release material for open use under their own ‘transactional’ licenses rather than using CC licenses.”where the copyright for material was held by small publishing houses, or by the authors themselves, [we found] that the copyright holder was more open to the idea of a creative commons licence”
- Pragmatic approach may be to avoid third party items that require engagement with publishers.
- National agreements with publishers should be investigated at the appropriate level (see similar conclusions from MEDEV).
MEDEV findings: We have investigated reusing small amounts of commercial content with publishers, and have had confirmation from Andrew Whittaker at ‘Instant Anatomy’60 that we can embed low quality versions of their images (fully attributed) to be embedded in OER materials. We have made similar representations to Elsevier who have kindly agreed for some images etc. to appear but they need to know exactly which ones and how they are to be used.
Bioscience findings: IPR can be difficult to trace for legacy materials, especially when the current teaching version of the resource has been developed over many cycles. Evidence from contacts within the project and at OER events has suggested it may often easier to remake the material rather than attempt to trace and clear 3rd party rights.
S4S findings: 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.
- We have had encouraging negotiations with two publishing houses.
- Resources containing a lot of 3rd party materials may be too risky and/or time-consuming to include in an open repository.
- In art and design subjects there are potentially very complex and costly clearance processes involved as many teaching materials include third party images.
- There are particular problems in subjects e.g.media where third party content is the subject of study.
- Solutions: email to ask permission, replace with copyright-cleared or recreated materials if not forthcoming.
What are the IPR issues relating to hybrid, multiply-authored resources?
Findings from projects
There are practical and legal complications in tracing IPR correctly on materials created from multiple sources.
There are often problems securing copyright for material from journals which may have been included (knowingly or unknowingly) in OERs
OERP interim findings: IPR on screenshots is particularly complex as it concerns both content and software. As is IPR on ‘generic’ materials such as formulae and closely related works.
- ownership of diagrams, figures, graphs etc can be very involved as they may contain data from one or more sources.
- Graphs etc are often based on data owned by another party (this is an issue in all the science subjects).
- Multi-author third party copyright, database copyright, and current, research-led assets were all problematic to clear. An alternative is to create links to resources in other databases and the literature as a substitute for clearance.
- Ownership of maps is also complex, with the ‘drawing’ of the map coming under copyright, and raw data-sets coming under database copyright (as with e.g. graphs)
What are appropriate licenses to use for open release?
Findings from projects
Most projects were successful at getting most materials released under a BY-NC-SA (non-commercial) CC license. However, in some cases a non-derivative (ND) CC licence may be necessary to protect very sensitive material, protect original works of art (ADM) or give an author confidence that his/her reputation will not be damaged (C-Change)
CORE Materials: Commercial partners were reluctant to agree to a CC licence which allowed derivative works, concerned about potential damage to reputation, but were persuaded that more open licences were more likely to encourage reuse.
C-Change: we managed to persuade all of our partners to stick with the ‘share alike’ option as we felt that the author should be well protected by the laws of moral rights.
Additional licence ‘clauses’ from publishers may have to be included to allow their materials to be released under a CC licence.
Bioscience: some originators may object to ‘changed’ versions of their resources being re-issued for open use even if they are happy with local adaptations. Solution: use a Creative Commons by-nc-sa licence with limited reservations appended.
S4S: A small number of partners chose to use more restrictive licences [than CC by-nc-sa], typically non derivative, typically because their institutions preferred it. It will be interesting to see if this impacts on uptake.
What is the legal status of institutional branding/logo materials included with CC licensed materials?
Findings from projects
Marketing departments can get involved in OER around the issue of institutional logos and their use within CC licensed materials. Bioscience finding: some components of resources may need to be excluded from cc licences e.g. university logos, other materials, This should be indicated in documentation included with the OER
Solutions from C-Change:
- can be argued that laws of ‘trade mark’ and/or moral rights provide sufficient protection
- can remove logos and put in text reference asserting origin to institution
- most institutions decide the benefits of association outweigh the risks
- CC attribution may allow logos to be stripped out if an attribution is included
What have we learned about take-down policies and ongoing commitments to ensure materials remain within the law?
Findings from projects
Take-down policies are essential because the law is changing rapidly in this area. Some projects concluded that a credible, fast-acting take-down policy plus ‘due diligence’ was more economical than clearing copyright on every element of a complex resource.
OERP working on a take-down policy to enable swift response to any violations
ADM-OER A clear take-down policy is essential in subjects where third-party content is an object of study and frequently included in teaching and learning materials and in student work.
Project outcomes and evidence
- Guidance on accessibility with examples
- OER Permissions Template Email
(Written guidance on IPR was secondary to the support of an experienced project officer).
- outcomes of the IPR conference, Dec09: paper on rights
- guidance on attribution
- Humbox: online copyright helper
CORE-materials: findings on different institutional attitudes to IPR, ownership of resources created by staff and students, and institutional policies; using Creative Commons licensing
S4S framework on resolving IPR for production of OER
- Rights management workflow
- Rights management schema – a metadata schema for recording all elements of the clearance workflow
- Draft clearance letter
C-change (interim report): seeking clear guidance from the Ordinance Survey on the use of their resources in the context of OER.
- Guidance on intellectual property and copyright
- Associated documentation: OER Depositor Agreement; UAL Seeking Permission from publishers letter: UAL Take Down Policy; UCA Digital Resources Release Form
FETLAR: report on community IPR and copyright concerns: release of CALMAT IPR for community use
Bioscience: short guide on IPR Clearance
SIMShareLegal: findings on handling of IPR for simulations and other multi-component entities
OERP: guidance on IPR and copyright released as part of toolkit
Some projects explored different methods of storing Rights Clearance Metadata, clearance of Diagrams, Figures, Graphs from published journals i.e. either with the resource in the form of a ‘passport’ (C-Change) or in separate linked documents, or in the form of a blanket statement on the repository with back-up documentation.