Copyright and consent briefing for open educational resources


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This is a powerpoint file prepared for the "OER in the disciplines" conference 26 October 2010. It covers UK copyright law, the need to consider consent from people to be involved, and risks of non-compliance with best practice when using and contributing to open educational resources in teaching and learning.

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  • Welcome to participants in this session and thank you to Trevor Bryant who has kindly agreed to make a short presentation, and to Nicola Siminson and Sharon Waller who have agreed to be on the panel.
  • Overview of the session – focusing mainly on copyright (this PPT), experiences (Trevor’s PPT) and panel discussion. This session has been videoed and the podcasts/video streams are also available from the event website.
  • IPR is made up of Patents, Trade marks, Designs, and Copyright. This presentation focuses on Copyright as the most key IPR relating to OER. The others protect designs, functionality and appearances.
  • Copyright is typically split into OWNERSHIP and LICENCE. Anything which is EXPRESSED (drawn, written, documented) is automatically covered by copyright, whether the author wants it or not. Exceptions include where employees have signed over their rights to their employer.
    If you tell your friend about an idea that you have had in the pub, and they draw an image of it for you, then they will own the copyright.
  • Economic rights include the rights to financially exploit the creation, and moral rights include the right to have the author’s name attributed on copies.
    Authors can (explicitly) waive, assign (as if to a publisher), licence or sell the ownership of their works.
  • Essentially if you re-use materials which are copyright to others then this counts as an INFRINGEMENT and the copyright holder may take you to court. If you re-use something that someone else has breached the copyright of then this is secondary infringement and is just as bad as the original offence. People often download un-attributed materials from the Internet thinking that they are safe to re-use; they are not.
  • There are occasions when you can copy copyright works, for example, if the copyright has expired, if it constitutes ‘fair dealing’, the work is covered by a licence or the author has given their permission (if you have permission then always cite the author and state ‘used with permission’).
  • To obtain permission then contact the author or their publisher (owner of the copyright).
  • Fair dealing does allow some rights to copy copyright works for specific purposes, however this is NOT an excuse for infringing another person’s copyright. If in doubt, use materials which are licenced or ask for permission.
  • A licence is simply a legal statement saying what you can and cannot do with the copyright works. Some organisations (such as the Copyright Licencing Agency) use licencing schemes (standard legal clauses) which are well recognised.
    This makes it easier for owners to share, for users to understand the rules of use, and for both parties to observe protocol.
    Creative Commons provides some well-recognised licencing schemes.
  • Such as ‘by’ attribution only (meaning that others have to acknowledge you as the original author); non-commercial to prevent others from making money out of your copyright.
  • This means that others can search for resources which are marked as, for example, ‘by’ attribution only if they are looking for existing images and other materials to include in their e.g. teaching materials.
    If you find a Creative Commons licenced resource that you want to use then attribute it and use it according to the licence.
  • Example OER resource (video) with example attribution – owner and source clearly identified. For an easy-to-use tool see the EXPERT project and their attribution tool.
  • While copyright is an automatic right, data protection is better described as a set of principles. Arising from the perspective of patient consent (patient data is classed as ‘sensitive’ under the DPAct1998) for patient materials used in teaching, we argue for additional tools to support consent from people. When creating open educational resources copyright doesn’t quite go far enough to recognise the rights of people who are represented to be respected (whether they have copyright or not). Representation could be a photograph, voice or video recording, data set or patient story. For example, if a person has agreed for their photograph to appear in your open educational resources (they are a student, a member of staff, an actor, etc.), and they pass away, what do you do if their family asks you to take down the OER? (What you are legally required to do may be different to what you would choose to do, in principle). Therefore you are essentially operating ‘policies’.
  • A human consent version of a Creative Commons licence would enable much more sophisticated recognition of the role and rights of people (whether they are the ‘creators’ or not) to be treated fairly and with respect.
    We need new technologies to support the implementation of Consent Commons – such as the ability to inform users that a resource has been updated or ‘taken down’.
  • The best way to safeguard yourself and your organisation against copyright infringement is to develop appropriate policies, advertise the policy clearly, train everyone in how to implement it, and follow it. For example, if you have a policy which says that ‘this material has been produced to the highest possible ethical standards and anyone with any concerns should contact xxx in writing after which the offending material will be removed within 10 working days pending investigation’. Then if someone contacts you, do what your policy says.
    Alternatively, you could just increase your annual insurance premiums to give you greater liability insurance in case of a breach (more on risk in a moment).
    Together with policies you could also use disclaimers: ‘the material provided on this site has been checked according to xxx however no warranties express or implied…’
  • This is an example of a HEFCE disclaimer on the JISC website.
  • Across the UK staff and students are already uploading teaching and other materials to the Internet/web, especially to social networking sites. Failure to follow best practice doesn’t mean that you can’t do it, it just means that you need more insurance. If you have deep pockets and have little conscience you can put materials up, and wait for lawyers to get in touch.
    The ‘best practice compliance’ table developed in the OOER project was developed to assist institutions to understand how their policies measured up, in order to safeguard themselves from litigation brought against them, and also to establish their own rights in relation to their own copyrights.
    It is intended as a guide only and legal advice should be sought by those wishing to adopt good practice risk-management policies.
  • These are only a few of the many recommendations, but they are the ones which we want to highlight to you . We really need institutions to use CC licences on their works, to clarify exactly who owns what and how it may be used. Institutions frightened of giving away the ‘crown jewels’ may be perfectly happy with releasing up to 75% of a module or programme (which may still be useful to others). To protect ourselves and our colleagues into the future we need sophisticated searching (reputation based materials) and take down policies. We would like to know that staff can be rewarded for getting involved in this, as contributors and users of other people’s resources. We also had many recommendations for JorumOpen (the national repository) who we were working with to implement as many as we can.
  • Copyright and consent briefing for open educational resources

    1. 1. October 2010 cc: by--sa Open Educational Resources: IPR, copyright and licensing – what’s the difference? Dr Trevor Bryant Senior Lecturer, Division of Medical Education,  University of Southampton Dr Megan Quentin-Baxter Director, Higher Education Academy  Subject Centre for Medicine, Dentistry and Veterinary Medicine Nicola Siminson Jorum’s Community Enhancement Officer,  Manchester Information and Associated Services (MIMAS) Sharon Waller Senior Advisor, Higher Education Academy
    2. 2. October 2010 cc: by-sa 2 Outline of the session • Intellectual property rights (IPR) • Copyright – Ownership  – Licensing including Creative Commons – Exemptions – Consent as distinct from IPR • Experiences of using and contributing to OER – Using and contributing to OER – Institutional policies – Experiences and reflections • Discussion and panel
    3. 3. October 2010 cc: by-sa 3 Intellectual property rights (IPR) • There are four main types of IP rights   – Patents protect what makes things work (e.g. engine parts,  chemical formulas) – Trade marks are signs (like words and logos) that  distinguish goods and services in the marketplace – Designs protect the appearance of a product/logo,  from the shape of an aeroplane to a fashion item – Copyright is an automatic right which applies when the work is expressed (fixed, written or recorded) • Copyright, Design and Patents Act, 1988 • Copyright arises automatically when an original idea (author uses some judgment or skill) is expressed/created –
    4. 4. October 2010 cc: by-sa 4 Who owns copyright? • The owner of the copyright is the person (or persons, if  jointly owned) who created/expressed it, i.e. the  author (writer, composer, artist, producer, publisher,  etc.) – Original literary works such as novels or poems – Original dramatic works such as dance – Original musical works, i.e. the musical notes  – Original artistic works such as graphic works (paintings,  drawings etc.), photographs and sculptures, including sound  recordings, performance, films and broadcasts – Typographical arrangements of published editions • An exception is an employee who creates a work in the  course of their employment (employer owns)  •
    5. 5. October 2010 cc: by-sa 5 What rights does a copyright owner have? • A copyright owner has economic and moral rights • Economic rights cover copyright owner acts, including  rights to copy the work, distribute (e.g. making it  available on-line), rent, lend, perform, show, or adapt it • Owners can waive, assign, licence or sell the  ownership of their economic rights   • Moral rights can be waived (but not licenced or  assigned) and include the right to  – Be identified as the author  – Deny a work (that an author did not create)  – Object to derogatory treatment of the work •
    6. 6. October 2010 cc: by-sa 6 Copyright infringement • It is an infringement of copyright (in relation to a substantial part of a work) without the permission or authorisation of the copyright owner, to – Copy it and/or issue copies of it to the public – Rent or lend it to the public – Perform or show it in public – Communicate it to the public • Secondary infringement may occur if someone, without permission, imports, possesses or deals with an infringing copy, or provides the means for making it • Material found on the internet is subject to copyright •
    7. 7. October 2010 cc: by-sa 7 Exceptions • You may copy copyright works if – Copyright has expired (e.g. for literary, dramatic, musical or artistic works = 70 years from when the last author dies) – Your use of the work (which must be acknowledged) is fair dealing as defined under the 1988 Copyright Designs and Patents Act (UK) – Your use of the work is covered under a licensing scheme that you and the copyright holder have subscribed to – The copyright owner has given you permission •
    8. 8. October 2010 cc: by-sa 8 Obtaining clearance to use copyright material • For permission to copy, contact the copyright owner in writing and specify – The material you wish use (title, author name etc.) – The exact content to be duplicated (i.e. page numbers) – The number of copies you wish to make – How the copies will be used (i.e. for an event, course work) – Who the copies will be distributed to (i.e. students) • For most published works this will be the publisher • Permission is needed for each and every purpose • Fees may be charged to copy the item, or for administering the request to copy the item •
    9. 9. October 2010 cc: by-sa 9 Fair dealing • Your use of the work (which must be acknowledged) is fair dealing as defined under the 1988 Copyright Designs and Patents Act (UK) – Research and private study – Instruction or examination – Criticism or review – News reporting – Incidental inclusion – Accessibility for someone with, e.g. a visual impairment • There is no simple formula or % that can be applied – instead use licenced materials, or ask for permission •
    10. 10. October 2010 cc: by-sa 10 Using licenced works • A licence (a set of rules) describes how copyright items may be used by others • Licensing schemes (such as Creative Commons) that both authors (owners) and users can access for free – If both sides observe the rules then both parties are instantly protected – Owners licence others to use their content – Users obey the terms of the licence – Creative Commons provides different licences that can be combined together – Policies can be developed to guide owners what licences to use
    11. 11. October 2010 cc: by-sa 11 Creative Commons:
    12. 12. October 2010 cc: by-sa 12 Flickr
    13. 13. October 2010 cc: by-sa 13
    14. 14. October 2010 cc: by-sa 14 Consent as distinct from IPR • Defined by the principles in the Data Protection Act 1998 and Human Rights Act 1998 • Recognises the need for more sophisticated management of consent for recordings of people (stills, videos, audios, etc.) – Teachers (academics, clinicians, practice/work based learning tutors, etc.) – Students and ‘product placement’ (branded items) – Role players/actors/performers/hired help (including recording crew) – Patients/patient families/care workers/support staff/members of public in healthcare settings (sensitive personal data) – GMC review of the guidelines for consent/patient recordings
    15. 15. October 2010 cc: by-sa 15 Consent as distinct from IPR • Proposing a “Consent Commons” – A human subject version of Creative Commons – Accepts a basic human right to refuse their image/voice appearing and, where they have previously consented, their right to withdraw their consent – Would work like Creative Commons in that you hallmark material with the consent status and when consent needs to be reviewed (if ever) – Has levels of release (e.g. Closed; ‘medic restrict’; review [date]; fully open) – Terms of the consent needs to be stored with/near the resource
    16. 16. October 2010 cc: by-sa 16 Policies, disclaimers and risk • In order to safeguard yourself against litigation for copyright or data protection (consent) violation – Have a policy/disclaimer – Clearly publish your policy and keep it up to date – Train your staff in the use of the policy – Follow your policy (do what you say you will do) • You may also want a disclaimer (use xxx at own risk) • Actively manage your risks • Take out liability insurance
    17. 17. October 2010 cc: by-sa 17 JISC
    18. 18. October 2010 cc: by-sa 18 Good practice compliance table (managing risk) Good practice compliance table (managing risk) Explanation Risk of litigation from infringement of IPR/copyright or patient consent rights Action 3 Institutional policies are clearly in place to enable resources to be compared to the toolkits. Low. Institution follows best practice and has effective take down strategies. Institution able to legally pursue those infringing the institution’s rights. Periodically test resources against policies to keep policies under review. Keep abreast of media stories. Limited liability insurance required. 2 Compliance tested and policies are adequate in most but not all aspects to allow the compliance of a resource to be accurately estimated. A small number of areas where policies need to be further developed for complete clarity. Medium. Ownership of resources is likely to be clear. Good practice is followed in relation to patients. Take down and other ‘complaint’ policies are in place and being followed. Review those areas where developed is required, possibly in relation to e.g. staff not employed by the institution e.g. emeritus or visiting or NHS. It may be that a partner organisation requires improvement to their policies. Some liability insurance may be necessary. 1 Compliance tested but too few policies available or insufficiently specified to allow the compliance of any particular resource to good practice guidelines to be accurately estimated. Medium. It is unlikely that the ownership and therefore licensing of resources is clear. Resources theoretically owned by the institution could be being ripped off. Collate suite of examples of best practice and review against existing institutional policies. Follow due process to amend and implement those which are relevant to the institution. Take out liability insurance. 0 Compliance with the toolkits unknown/untested. Compliance has been tested and materials failed to pass. High/Unknown. Risk may be minimal if resource was developed based on best practice principles. Institutional policy status (ownership, consent) is unknown. Establish a task force to test some resources against institutional policies; then follow 1-3 below. Take out liability insurance. October 2010 cc: by-nc-sa
    19. 19. October 2010 cc: by-sa 19 Institutional policy recommendations • That authors should ‘hallmark’ all their content with CC licences e.g. CC ‘by’ (attribution only) • Consent everything-even where ownership and patient/non-patient rights appear clear, and store consent with resource • Review institutional policies against good practice • UK HE enters a dialogue with publishers to increase the potential for re-using upstream copyrights • Have sophisticated ‘take-down’ policies
    20. 20. October 2010 cc: by-sa 20 Attribution and disclaimer • This file is made available under a Creative Commons attribution share alike licence. • To attribute author/s please include the phrase “cc: by- sa Megan Quentin-Baxter, October 2010, consent-briefing-for-open-educational-resources” • Users are free to link to, reuse and remix this material under the terms of the licence which stipulates that any derivatives must bear the same terms. Anyone with any concerns about the way in which any material appearing here has been linked to, used or remixed from elsewhere, please contact the author who will make reasonable endeavour to take down the original files within 10 working days.