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 publlisher.
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?
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
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.
Bioscience findings:
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?
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?
MEDEV findings
What have we learned about clearing copyright for third-party materials and resource-elements?
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.
C-change findings:
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.
CORE-Materials findings:
ADM-OER findings:
What are the IPR issues relating to hybrid, multiply-authored resources?
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.
C-Change findings:
What are appropriate licenses to use for open release?
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?
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:
What have we learned about take-down policies and ongoing commitments to ensure materials remain within the law?
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.
OERP:
(Written guidance on IPR was secondary to the support of an experienced project officer).
Humbox:
CORE-materials: findings on different institutional attitudes to IPR, ownership of resources created by staff and students, and institutional policies; using Creative Commons licensing
TRUE:
S4S framework on resolving IPR for production of OER
C-Change:
C-change (interim report): seeking clear guidance from the Ordinance Survey on the use of their resources in the context of OER.
ADM-OER:
FETLAR: report on community IPR and copyright concerns: release of CALMAT IPR for community use
OER MEDEV: IPR Toolkit and Patient/non-Patient consent Toolkit
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.