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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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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.