The creation of open educational resources (OER) requires consideration of a number of legal issues. Paramount amongst these is consideration of Intellectual Property Rights (IPR), and in particular, copyright. Making materials ‘open’ is to make them available to the public for free in perpetuity (at least to some extent – certain restrictions are still possible).
Whilst this is not an issue where the person releasing the materials is the copyright owner, it is a much more difficult issue where third party materials are included. Other legal issues which may need to be considered include data protection law, liability for inaccuracy or illegal content, and accessibility law. To assess how ready your organisation is to adopt open licensing policies, there is a wizard to help you.
For the purposes of this guidance, ‘open’ will be taken to mean release under a Creative Commons (CC) licence. However, other ‘open’ licences are possible (and may be more appropriate, such as in relation to software), as well as a complete waiver of all rights (typically called release to the ‘public domain’).
Copyright and open educational resources
Copyright is the right to control the copying and dissemination of an original work. Where the person wishing to release the OER is the copyright owner of the entire work, the release of it under a Creative Commons licence is straightforward – simply choose the appropriate CC licence depending on jurisdiction, whether commercial use is to be permitted, and whether derivatives are to be allowed.
Why getting copyright sorted is crucial
If materials are released as an ‘open educational resource’, and they contain material that is not properly licensed (whether that is text, a graphic, a photograph, video, music or any other copyright work), reuse of that non-licensed material is likely to be copyright infringement by any user of the resource.
If a successful resource is used by a thousand people, if infringing material has to be removed, this will affect all those users (with them having to remove the materials, and having the possibility of action against them for infringement). This will be the case whether or not they know that the resource contained copyright infringing material. It is therefore important that the creator of the OER ensures that it truly is an ‘open’ resource, by diligently ensuring that a valid licence is applied to the work.
Ownership of copyright
The creator of a copyright work is, in general, the first copyright owner of that work. However, the owner of the work may transfer (the legal term is ‘assign’) his or her ownership to someone else, and that person will become the owner of the copyright. Only the copyright owner can grant permission (known in law as a ‘licence’) to others to use the work. Permission granted from someone other than the copyright owner has no validity at all. Although sometimes difficult, an open licence can only be applied validly to another person’s work if the actual copyright owner’s permission has been given.
There are particular issues in respect to materials created by a member of staff at a college or university, or a student. In relation to staff, legislation states that copyright works created within the course of employment will first belong to the employer, unless there is an agreement to the contrary.
Where material is created within the course of employment, without agreement to the contrary, a member of staff authorised to act on behalf of the institution may decide to release that material under an open licence.
Where there is ambiguity (eg due to uncertainty as to what duties are part of the contract of employment), it might be advised to get the approval of the employee to ensure that the open licence is valid whether it is the member of staff or the institution that is the copyright owner.
With regards to students, there are no special legislative provisions. This means that students will be the owners of their own work, unless they agree to transfer it. Some institutions have provisions in their registration agreement requiring student to transfer copyright in all work submitted to the institution. However, such a requirement is likely to be subject to the Unfair Terms in Consumer Contracts Regulations 1999, and as such, may be struck down if found to be unfair.
Dealing with third party materials
It should be noted that clearing third party materials for release under an open licence can be difficult, particularly in relation to 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).
The following are a number of approaches that may be adopted in relation to the third party materials contained within a candidate resource for release under an open licence:
- Accept the burden of clearing the materials for release under an open licence, accepting that some owners might refuse, some might ask for payment for permission, and it may be impossible to track down some owners, or they may not answer your enquiries
- Remove the third party material, and limit the resource to materials where you are the copyright owner, or where the third party materials are already available under a suitable CC licence. This can be extended to third party materials where you know that gaining permission of the copyright owner will not be burdensome (e.g. copyright held by a partner institution, or someone easily identifiable that is likely to support the release of the materials). Where resources have been omitted, it will often be useful to include a placeholder detailing what material has been removed, and any information as to how the eventual user of the OER can get permission to use the removed material him or herself
- Where the decision is to omit third party materials, consideration might be given to replacing them with materials already licensed under an appropriate CC licence, or which are otherwise available. This is likely to depend on the pedagogic reason for inclusion of the work. Substitution will be easier where the inclusion is due to mere embellishment, or to illustrate a general point, rather than to show something specific
- It may be possible to give access to the resource as a whole, but make clear that certain parts of it are not CC-licensed. This may be achieved by a caption or other marker, as long as it is clear to any user that the material in question is not part of the openly licensed resource. It should be noted that the institution giving access to the third party material will still need to have permission to do so, even if they are not giving ‘open’ reuse access under a CC licence. An approach which might be easier for a user of OER might be to extract the third party material from the body of the resource, and include it in an appendix that is clearly marked as being non-CC-licensed
The issues involved with releasing third party material as part of an OER may seem onerous, tiresome and bureaucratic, but it is a basic tenet of copyright law more or less the world over that you cannot give away another person’s property (including intellectual property) without their permission. This is unlikely to change in the near future.
The original creator of a copyright work has the right, if asserted and subject to certain other conditions, to be identified as the creator, and also has the right to object to derogatory treatment of the work. Although these rights may be waived by the creator, they cannot be transferred to anyone else.
Other intellectual property rights
Care must be taken when releasing open educational resources that confidential patent-relevant information is not released prior to a patent application (which may be invalidated as a result). Likewise, consideration should be given as to whether a trademark is being used in a non-authorised way to promote a good or service without permission of the trademark owner. There are further, particular, circumstances where performers’ rights, database rights and design rights will also need to be considered, and cleared if necessary.
The above is based upon information from Jisc Legal (April 2010).