Legal Aspects of OER
Legal aspects of OER are complex and linked to wider issues of institutional policy, risk management and ownership. Open licences are critical to the notion of OER as they encourage and enable use, reuse, redistribution and modification with minimal restrictions. Open licences do not transfer ownership but grant permission for specified uses and sometimes require attribution or other actions.
OER legal issues are often complicated by the fact that people have varying levels of understanding of basic Intellectual Property Rights (IPR), and in particular, Copyright. This is further complicated by the fact that often no one person within an institution may have an understanding of IPR in relation to OER. Creative Commons Licences have made choices easier to some extent although there are a range of open licences that could be applied to OER.
Copyright
Copyright is the right to control the copying, re-use, adaptation and dissemination of an original work. It exists to protect original literary, artistic, dramatic and musical works, sound recordings, films or broadcasts, and the typographical arrangement (layout) of published editions. In a learning and teaching context this includes learning materials.
Release of OER is straightforward when the person releasing content owns 100% of the content (ie is the Copyright owner).
Further information about Copyright and IPR in UK educational contexts is available from JISC Legal.
Ownership and risk management
Challenges emerge when there are multiple authors, particularly when releasing existing content that may have been created without due regard to IPR or before the development of open licences.
There is considerable confusion about ownership within Further and Higher Education institutions. Whilst generally the institution may own the outputs of staff (as defined in staff contracts), students own their own content, unless they transfer rights to the institution (which sometimes happens on specific projects).
Releasing existing content often requires so much work in relation to establishing ownership and applying for the right to release under an open licence, that the notion of open release is abandoned. One approach it to adopt a less risk averse policy and release with a robust 'take-down' policy. However it is important to have evidence of steps taken not to infringe Copyright Law.
Provenance and third party materials
Establishing who created a resource (or parts of a resource such as an image) can be challenging and clearing such third party materials for release under an open licence can be difficult. This is particularly relevant for multimedia material such as recorded video (where the soundtrack, performance, screenplay and recording may all have different rights’ owners). Where permission is being sought, care should be taken to ensure that the right person is being asked (that they are actually the copyright owner of the third party material in question), and that they are truly consenting to the release of the material under an open licence (for example, merely asking for permission to ‘use’ the resources would not be sufficient).
Licencing
A licence is a legal document that grants formal authority to do something that would otherwise be unlawful. In an OER context, it refers to a licence to re-use, adapt and/or re-purpose learning resources. There are many options available and licences reflect a series of choices made by the Copyright owner. A range of materials to help consider issues and select appropriate licences is included on the OER IPR support project pages.
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