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Background

When preparing OER it is essential that you undertake a rights clearance process. This involves identifying who owns the Intellectual Property Rights (IPR) behind a resource. You need to know this in order to determine whether or not you can legally the resource as an  OER. You must obtain the author/rights owner's permission to release anything to which you do not own the rights.  Also, ask yourself if you really do own what you think you own.  We are not talking about physical possession of an item but, rather, the right to control what is done with the contents.

 

In order to answer this, you need to know a little bit about IPR; however, this is not meant to be a law lecture but an introduction to the major issues when creating or releasing OERs.

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Copyright introduction

Copyright is a form of IPR which protects resources and this protection covers works that can be described as literary, artistic, dramatic, sound recordings, musical, films, broadcasts and typographic arrangement.  The key piece of UK legislation in relation to IRP is the Copyright, Designs and Patents Act 1988.

 

Type of Work	Example	Duration of copyright
Literary, dramatic, musical or artistic works	Journal articles, books, letters, lecture slides/handouts, pictures, photographs, images, graphs, tables.	70 years after death of author.
Sound recordings	Songs, speeches, performances, pieces of music, any recorded sounds.	50 years from the end of the year in which the recording was made.
Films		70 years after the end of the year in which the last of the principal director, author of screenplay, author of dialogue or composer of music dies.
Broadcasts	TV programmes, podcasts, online seminars as aired.	50 years from the end of the year in which the broadcast was made.
Typographic arrangements	The typeset/ appearance of something, i.e. layout, format, stylisation etc.	25 years from the end of the year in which the arrangement was first published.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Copyright, Designs and Patent Act 1988, section 1.

 

Copyright protects the expression of an idea, not the idea itself. You can use the idea but cannot copy the expression, i.e. what is displayed on the page. Copyright protects against copying. If you do not copy, you do not infringe any aspect of copyright protection. 

 

Ordinarily, we can be sure that:

-  One word = no copyright protection;

-  One sentence = uncertain (11 words have recently be held to have copyright although this may not apply to every case);

-  Formulas/equations/recipes = no copyright*;

-  One Chapter = Copyright; and

-  One Paragraph = Copyright may exist depending on the facts on the particular case. 

(* Slightly contentious but the reasoning is that a formula on its own is not enough to warrant copyright protection. You would need the instructions/methodology along with the ingredients and the right would exist in the whole work.)

 

N.B.

Unfortunately, due to the technicalities of legal drafting, the Act also refers to infringement in terms of a 'significant' part of the original work.  If you use a significant part of a work, your use will amount to an infringement, but this 'significant' value varies with every case and, therefore, every resource.  There is guidance to the effect of the example above; however, if you are in any doubt, ask your institution's Copyright Officer, Legal Department or Enterprise Office for specific advice.

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Open licences

There are many types of open licence; all enable the use of resources without payment of a royalty or fee. Some are superficially made for specific types of resources, such as software. All enable the licensor to stipulate what is permissible in terms of reuse, for instance if the resource must not be changed in any way.

 

The licence should be embedded within the resource as part of the metadata so that users can see the terms on which they can make use of the resource.  Information on how to include metadata with resources can be found in our guide here.

 

Further information on the different types of open licensing can be found here: http://www.opendefinition.org/guide/.

 

Creative Commons (CC) licences are a specific type of open licence, used commonly with OERs. More information, and the opportunity to generate and download CC licences, can be found on their website http://creativecommons.org/.  There is also a useful Microsoft plug-in that can be installed that allows creators to automatically add CC licences to work they create in MSOffice packages.  http://www.microsoft.com/downloads/details.aspx?FamilyID=113b53dd-1cc0-4fbe-9e1d-b91d07c76504&displaylang=en.

 

N.B

In order to apply a licence you must be, or have the permission of the IPR owner. 

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Ownership

So... how do you know who owns what?  

Copyright, Designs and Patents Act 1988 says:

(1) The author of a work is the first owner of any copyright in it, subject to the following provisions. 

 

(2) Where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.

 

This means that the copyright owner of a work is usually the author, i.e. the person who puts a work into a copyright form, the person who actually records the expression of the idea, except where other agreements apply. The author has the right to control their work and the right to be identified as the author of a work.

 

• If you write something down, you own the copyright in it;
• If you come up with an idea and write it down/record it in some form; you own the copyright in the expression, i.e. what is recorded; and
• If you come up with an idea but do not record it - there is no copyright.

 

You are the author of the work, you put the idea into a recorded form and therefore are entitled to control what happens to it. 

 

However if the work was in the course of your job then it is highly likely that your employer owns the copyright, rather than you (the default position). Your contract of employment, terms of service or other related documentation should give details on the ownership of IPR in materials created as an employee, and contracts do differ from institution to institution so please take the time to confirm your position. If you are unsure, ask your Personnel Department to clarify the institutional position.

  

Why is this important?

It is important because you cannot apply a licence to something you do not own or do not have permission to release. These issues need to be identified before any effort is undertaken to release the resource.  Of course, this process in itself can be a substantial effort when trying to convert existing resources for OER release.

 

When OER practices become the norm, many of these steps will be removed, thus making the whole process quicker and easier.  If you are creating resources from scratch, many of these issues are avoidable.

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Dealing with Third Party Copyright Works

If you see a diagram which explains a theory, a mechanism, a device or something similar in a way you find really useful, check to see if you are allowed to use it. See if there is anything on the resource that mentions reuse or any form of notice that outlines the copyright status of the resource.

 

NB

If there is no information, do not assume you are free to use the resource!

 

You should always ask if the person you contact is in fact the owner of the rights in the first place.  If you do not get a response or if you get a refusal, there is nothing to stop you redrawing the image, providing you do not copy the expression. 

 

The Humbox OER project has produced a very useful resource based on OpenLabyrinth to guide you through the copyright clearance process, and identifying what needs to be done with regards to content owned by third parties: http://tiny.cc/HumboxIPRClearance.

 

Third party resources

So.... you've been through a resource and found some images sourced from a website, what happens next? 

 

Where any element of the resource is owned by a third party, permission is needed before it can be included within an OER.  See if you can trace the owner of the resource and ask them for permission to use it in an OER and state that it will be released under a CC licence, or similar.  Ensure you retain all requests for permission in a secure location for indefinite periods as you never know when you might need it. 

 

A template email or letter that can be adapted for your purposes can be found at http://tinyurl.com/37pcot4 which is based upon the advice provided by the Web2Rights Project, found at http://www.web2rights.org.uk/documents.html.  As this is a template, there are sections requiring completion or deletion as necessary for your purposes.  You may also want to get this draft checked by your own legal department before you send it. 

 

If permission is not granted, or you do not receive a reply, you will have to:

Remove the material completely	An option when the loss of this material does not detract from the resource as a whole or impact on the pedagogy.
Remove the material but replace with an alternative	This is the preferable and sometimes necessary course of action. The options here are: create a replacement - the advantage to this is that ownership issues are simplified, locate a replacement where permission to use is granted, this can be achieved by; asking permission of the owner of the prospective replacement as before or, locating alternatives which are already licences for reuse e.g.  CC licensed images
Remove the material and replace with a web link to the original or other suitable resource, if available online.	If you are unable find a suitable resource you could always state exactly what was deleted so that users can look for it independently.  E.G.  ‘see (textbook name) by (author & publisher, ISBN) page ..... figure.....’

 

Be careful of using content where no owner can be identified, or so called 'Orphan works', as this does not mean that the work has no owner.  'In From the Cold', a report from JISC Collections Trust, estimated that there are millions of 'orphan works' and their lack of established ownership often prevents their reuse. Including such work within an OER would risk possible future legal challenges.  '[In from the Cold' http://www.jisc.ac.uk/media/documents/publications/infromthecoldv1.pdf]

 

Sources of Replacement Materials

Fortunately there are sources of materials with open licences already applied. For access to several search facilities for open licensed materials visit the Creative Commons website http://search.creativecommons.org/.  http://www.jorum.ac.uk/searchOptions.html is a UK-based site which is designed to host OER.  Google and Flickr have very successful advanced search facilities for use with images whereby you can limit results to those available for reuse under CC licences. Increasingly sites such as Scribd and Slideshare are enabling users to filter search results by licence type. 

 

Summary

You need to ask

• Did you create it?  
• Was it created while working?
• Did you create it for your job?  
• Did you use your employers equipment? 
• Is there anything in your contract of employment about ownership? 
• Do you own it?
• Do you have permission to use it/release it?

 

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