This document discusses issues related to open educational resources (OER) and their influence outside of higher education. It notes that OER can benefit the public good through increased public accountability, knowledge sharing, and engaging taxpayers. However, it also discusses challenges related to third party rights over content, patient consent and privacy, and ensuring resources remain up to date. The document advocates for the development of policies and systems like "Consent Commons" to help clarify licensing and consent issues for the use of human subjects and clinical recordings in OER.

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OER influence outside the HE sector
• Public good and engagement:
o Public accountability;
o Repaying/recognising taxpayers;
o Sharing knowledge (potentially improving e.g. world health).
OER influence outside the HE sector • Third party rights and publishers – texts, journals, resources,
etc.
• Statutory and professional body guidance/education in
Dr Megan Quentin-Baxter
healthcare delivery.
Director, Higher Education Academy Subject Centre for
Medicine, Dentistry and Veterinary Medicine (MEDEV) • Sectors such as defense; business; arts and museums; politics;
hobbies; independent education providers and commercial
Lindsay Wood
firms’ training; blending academic content with social
Organising Open Educational Resources (OOER) Project Officer
networking.
Newcastle University
• Other (for another time!).
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OOER project assumptions OOER project assumptions
• Everything needed was already available and that we simply needed to • Digital recordings taken in clinical settings were ‘sensitive’ personal
harness existing know-how. data, and needed to be copied into the patient record.
• Whatever we achieved would improve understanding and expertise in • A person (or their family, in some circumstances) should have the right
solving issues associated with OER. to refuse or withdraw consent for recordings of them being released as
• If the process was robust then the desired outcomes in terms of OER, and a person cannot consent ad infinitum for a purpose/s that
numbers of resources uploaded would naturally follow, and continue they cannot comprehend.
into the future - the real benefits would arise after the end of the project. • Some sensitive clinical content genuinely needed to have controlled
• That it would be easy to harness ER that were out of date or with little access (e.g. genito-urinary medicine, obstetrics & gynaecology).
or no value; our task was to make valuable ER open. • Resources naturally go ‘out of date’ and maintenance needs to be
• Embedded upstream IPR had to be tackled head-on with confidence. accommodated in any successful OER strategy (institutions have a
moral obligation to ensure that branded materials are up to date).
• Those developing teaching may be non-HEI employed (e.g. NHS or
private practice staff or students). • Consideration must be given to accessibility and pedagogic and
technical standards such as IMS / MedBiquitous Europe (technical
• We should concentrate specifically on issues relating to our subjects,
standards and specifications for healthcare education within Europe).
such as consent.
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Good practice compliance table (managing risk)
World wide healthcare education Good practice compliance table (managing risk)
Explanation Risk of litigation from
infringement of IPR/copyright
Action
or patient consent rights
• Of our 17 partners in OOER: 3 Institutional policies are Low. Institution follows best practice Periodically test resources against
o All partners have much greater understanding of OER approaches; clearly in place to enable and has effective take down policies to keep policies under
resources to be compared to strategies. Institution able to legally review. Keep abreast of media
o London School of Hygiene and Tropical Medicine (LSHTM) delivered a the toolkits. pursue those infringing the stories. Limited liability insurance
15 credit module on Malaria – useable by doctors, nursing and allied institution’s rights. required.
2 Compliance tested and Medium. Ownership of resources is Review those areas where
health professions – justified declaring themselves as piloting an ‘open’ policies are adequate in most likely to be clear. Good practice is developed is required, possibly in
approach for all LSHTM programmes; but not all aspects to allow followed in relation to patients. Take relation to e.g. staff not employed by
o Royal Veterinary College – share educational resources via iTunesU, the compliance of a resource down and other ‘complaint’ policies the institution e.g. emeritus or
to be accurately estimated. A are in place and being followed. visiting or NHS. It may be that a
YouTube, etc. and work with WHO to deliver veterinary education small number of areas where partner organisation requires
worldwide. policies need to be further improvement to their policies. Some
developed for complete liability insurance may be
clarity. necessary.
• New issues raised such as how to busy academics deal with 1 Compliance tested but too Medium. It is unlikely that the Collate suite of examples of best
few policies available or ownership and therefore licensing of practice and review against existing
feedback from users of OER. insufficiently specified to allow resources is clear. Resources institutional policies. Follow due
the compliance of any theoretically owned by the institution process to amend and implement
• How to deal with embedded third party IPR. particular resource to good could be being ripped off. those which are relevant to the
• Patient consent and right to refuse or withdraw. practice guidelines to be institution. Take out liability
accurately estimated. insurance.
0 Compliance with the toolkits High/Unknown. Risk may be minimal Establish a task force to test some
unknown/untested. if resource was developed based on resources against institutional
best practice principles. Institutional policies; then follow 1-3 below. Take
Compliance has been tested policy status (ownership, consent) is out liability insurance.
and materials failed to pass. unknown.
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Third party upstream rights
• A new member of academic staff moved from industry to academia
and wishes to draw on their former (commercially sensitive)
pharmaceutical research in the development of their teaching
materials.
• A member of academic staff moves to a new institution and wants to
stop their former employer from using the teaching materials that they
developed while they were there.
• A member of academic staff has refused to upload their teaching files
to the university VLE, in case others see how heavily they have drawn
on colleagues’ work (without permission/attribution).
• A university produces extensive clinical skills tutorials (available via
YouTube), which they later find are being sold by a commercial
organisation based in the far east to other healthcare providers as part
of a bundle of learning products.
www.medev.ac.uk/oer/value.html
cc by-nc-sa
http://www.flickr.com/photos/robertfrancis/100775342/
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Third party upstream rights and international
Third party upstream rights
collaboration
• We believe that all ER produced in HE should be hallmarked with CC • It is inconceivable to consider inferior substitutes to authoritative
licence illustrating its exact IPR and consent status. Many ER are original sources in Journals and Texts.
unable to be made available as OER because of legitimate inclusion • Publishers such as Elsevier allow teachers at MIT to include some
of third party materials (or patient clinical recordings). In some cases images and citations (especially journals and images/text from their
people are simply uncertain what their status is, particularly images, or StudentConsult texts) in OpenCourseWare teaching materials1.
‘orphaned works’. InstantAnatomy has given permission for ER to be embedded in OER
• The IPR in ER are normally owned by the employing institution, and (pers com), but legal agreement needs formalising.
can be licenced for specific purposes. Wholesale adoption of CC and
clear institutional policies will, over time, resolve third party ownership 1Albanese A. (2008). OpenCourseWare's Elsevier agreement, Library Journal,
and licencing issues whereby all staff within an institution, or those www.libraryjournal.com/article/CA6547080.html; MIT Press (2008). Elsevier offer free
who move posts, can confidently use and re-use ER developed at the content from more than 2,000 journals, ocw.mit.edu/about/media-coverage/press-
institution or while employed elsewhere. releases/elsevier/; Young J. (2008). Elsevier agrees to let MIT use bits of journal articles
online, The Chronicle of Higher Education, http://chronicle.com/blogPost/Elsevier-
• Thank you Creative Commons! Agrees-to-Let-MIT-Use/3748 and Elsevier itunes.apple.com/app/netters-
musculoskeletal-flash/id286038445?mt=8 permissions request form
www.us.elsevierhealth.com/article.jsp?pageid=388#container2 (all a. May 2010).
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Third party upstream rights and international
Third party upstream rights
collaboration
• OOER is negotiating with Elsevier, approached others such as Primal • An author publishes book (via a reputable publisher) and is contacted
Pictures and is planning to approach e.g. Wiley Blackwell by lawyers (‘ambulance chasers’) acting on behalf of a photographer
• MedEdPortal – agreement for metadata from MedEdPortal to go into whose image was inadvertently used on the front cover.
JorumOpen. • The book cover also has a secondary image photo-shopped onto the
• We need national agreements with third party rights owners stating first.
how third party materials can be used in OER. • The publisher agrees to pay the lawyer’s fee of 3K for the first image
• What might be those terms? (settling out of court) and the author has to pay 3K for the second
o Author/editor permission for works to be released; image. Neither publisher or author knows if the lawyer (or another one)
o Lower quality/watermarked images/diagrams/embedded images and texts; will return for further payments in future.
o Micropayments via payment services such as iTunes?
o Investigating whether embedding publishers’ materials in OER actually • Hallmarked images will permanently change understanding of
increases sales of published works. ownership and licencing in future.
• Could be brokered by the Academy, JISC Collections/Legal and other
interested parties such as the Strategic Content Alliance (SCA).
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Patient and non-patient consent Patient and non-patient consent
• Patients, their families and healthcare workers were often willing to: • The General Medical Council (GMC) provides guidelines on consenting
o collaborate with educators by sharing their story as told in a podcast, video patients for clinical and research purposes (Consent: patients and
or acted out by a role player; doctors making decisions together, GMC 2008).
o allow images including photographs and XRays to be used for teaching • Guidance covers:
purposes; o Making decisions about investigations and treatment:
o agree to their ‘case’ (medical history/patient record) being adapted for • Sharing information and reasons for not sharing/confidentiality
presentation to students; etc. Healthcare workers, academics, students and
• Answering questions
other people (such as contracted film crews) often participate in the
development of resources. • Responsibility (who)
• Communicating side effects and complications
• Under the UK Data Protection Act (1998) clinical recordings/data
• Making decisions
collected during medical treatment should be considered ‘sensitive’,
and a copy stored with the patient record managed by the healthcare o Expressions of consent
provider. Therefore the IPR of a resource may be owned by the o Creating and keeping documentation
healthcare provider, not the academic institution wishing to use it.
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Patient and non-patient consent Patient and non-patient consent
• The GMC also provides guidelines on making recordings (Making and • A 15 year old woman gives her consent for an an audio interview
using visual and audio recordings of patients - guidance for doctors, outlining her experiences of having a termination to be distributed to
GMC 2002 [being revised 2010]). secondary schools in the region to educate young people about
• Guidance (2002) covers: unwanted pregnancy. Seventeen years later she contacts the clinic to
o Seek permission to make the recording and get consent for any use or ask if all copies of the tape to be returned / deleted as her children are
disclosure. now of secondary school age and she doesn't want them to hear the
o Give patients adequate information about the purpose of the recording when recording and possibly recognize her voice.
seeking their permission. • An actor is contracted to appear in a video for which he signs consent
o Ensure that patients are under no pressure to give their permission for the for both the appearance and teaching materials to become ‘OER’. After
recording to be made.
post-production but before it is distributed the actor writes to request,
o Stop the recording if the patient asks you to, or if it was having an adverse with no explanation given, that their appearance is withdrawn. The
effect on the consultation or treatment.
school is faced with defending their continued use of the video, or
o Do not participate in any recording made against a patient's wishes.
replacing it (with the subsequent costs and delays).
o Ensure that the recording does not compromise patients' privacy and dignity.
o Do not use recordings for purposes outside the scope of the original consent
for use, without obtaining further consent.
o Make appropriate secure arrangements for storage of recordings.
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Patient and non-patient consent Patient and non-patient consent
• Recordings of people (stills, videos, audios, performances, etc.):
• Ellaway, et al., 200611 proposed ‘Clinical Commons’, a system similar to
o Teachers (academics, clinicians, practice/work based learning tutors, etc.);
CC to cover how human consent might be licenced, and this work was
extended to a concept of ‘Consent Commons’ in OOER by Jane o Students and ‘product placement’;
Williams at University of Bristol. Sample agreements are also available o Role players/actors/performers/hired help (including recording crew);
on the SCA website. o Patients/patient families/care workers/support staff/members of public, etc.
(we are working with the GMC to review the guidelines for patient
• We would like to promote discussion of the development of Consent recordings).
Commons, picked up on by Professor Andy Lane during a
• Consent Commons
‘sustainability’ workshop run by the Open University in May and due to
be presented at OpenEd 20108 in November. o A human subject version of Creative Commons;
• Ellaway R, Cameron H, and Ross M. Clinical recordings for academic non-clinical settings, The o Accepts a basic human right to refuse their image/voice appearing and,
University of Edinburgh (on behalf of the Joint Information Systems Committee), 2006: 94p. [Available where they have previously consented, their right to withdraw their consent;
at: www.cherri.mvm.ed.ac.uk accessed May 2010].
o Would work like Creative Commons in that you hallmark material with the
consent status and when consent needs to be reviewed (if ever);
o Has levels of release (e.g. Closed; ‘medic restrict’; review[date]; fully open);
o Terms of the consent needs to be stored with/near the resource.
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Patient and non-patient consent Imagining a future flush with OER
• OOER has worked with the statutory body to update the 2002 • Could widespread OER strategies for releasing resources more
guidance: openly (making content unilaterally available) encourage uptake of
o Responded to the consultation in 2009; existing or new collaborations/consortia?
o Participated in JISC national workshop in November 2009; • What happens when a significant number of resources are available
o Invited to GMC in January 2010 to redraft guidance on audio visual on JorumOpen?
recordings. • What happens to existing collaborations/consortia – change focus?
• Having seen what happens when policies go out of date (leaving Cease to be financially viable?
collections vulnerable) we wanted to define both a process and a • Will some institutions come to dominate / change the balance of
‘direction of travel’ to enable policies to keep up-to-date with society, power in the international university sector?
without regular recourse to statutory or consultative change (lowest
• What effect is there on countries less well provided for?
common denominator).
• We have the potential to disseminate the tools and sample
policies/agreements throughout the NHS (although they will need
local interpretation).
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OOER project recommendations
• That authors should ‘hallmark’ all their content with CC licences.
• Consent everything-even where ownership and patient/non-patient
rights appear clear, and store consent with resource.
• Review institutional policies against good practice.
• Aim to release a fraction of a programme rather than 100%.
• UK HE enters a dialogue with publishers to increase the potential for
re-using upstream rights (especially images).
• Have sophisticated ‘take-down’ policies.
• Development of a tool to track resources and for them to ‘phone home’
(like software updaters) to check their status.
• Staff reward system is established (formal recognition of using and
reusing others’ resources, PDRs, promotion criteria, etc.).
• Several JorumOpen-specific recommendations such as bulk upload.
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