An OER Amnesty

Ideas on how to solve the OER barrier.

Alex Fenlon

Engineering Subject Centre

An Introduction to the Status Quo

• Intellectual Property Rights (IPR) are increasingly important to HEI’s especially when Government is asking them to turn knowledge into jobs (Lord Mandelson speech Higher Education and Modern Life, July 2009)

• HEI’s are keen to generate revenue from the exploitation of IPR through Knowledge Transfer Partnerships, spin out companies and other revenue streams.

– One such spinout company from Loughborough University has generated over £750,000 since 2007 with almost £3,000,000 worth of orders being quoted for (figure dates from September 2008).

– Look at the recent Telegraph article ‘Top 50 University Spin-Out Companies’ which reflects the attitude of HEI’s and their intentions to encourage and exploit IP arising from their research.

– In times of economic uncertainty research is a vital revenue stream.

• Why then would they be interested in giving their resources away as OER?– IPR within HEI is seen as a research output rather than teaching resources.– Marketing opportunity.– Expose excellence to a wider audience.– Altruism.– Contributing to the collective knowledge.

What is IPR and what are we talking about?Intellectual Property Rights are rights associated with the intangible assets of human output. This encompasses a range for rights relating to the expression of ideas (copyright), the method of producing something or how it works (patents), the name, logo, sign or something else that identifies the source of the creator (trade marks), the physical aesthetic appearance (design rights), and the knowledge behind a device/method (confidential information or trade secrets).

Copyright is the most likely IPR to apply to all teaching materials in a recorded form.

Copyright arises automatically as soon as someone that creates something that is capable of attracting copyright protection. It covers;(a) original literary, dramatic, musical or artistic works, (b) sound recordings, films, broadcasts or cable programmes, and (c) the typographical arrangement of published editions. (Copyright, Designs and Patent Act 1988 Section 1.)

Please NoteCopyright protects the expression of an idea not the idea itself, so only when the idea is recorded does copyright take affect. (Copyright, Designs and Patent Act 1988 Section 3 (2))

IPR in HEI Teaching Resources.

Which Right applies?

Today we are dealing with copyright and how it affects HEI and OER production.

This includes:

Lecture and tutorial notes

Handouts

Overhead slides and PowerPoint presentations

Marking schemes

Teacher guides

Course overviews and descriptions

Course timetables

……..the list goes on.

Please Note

Copyright will protect what is written on the page/ screen but not the ideas behind it.

Who owns what in a HEI Context.

The owner of the copyright is the person who creates it (Copyright, Designs and Patent Act 1988 Section 9 (1)). Section 9 2. goes on to add clarification for the different types of copyright.

Does the law say anything else?

Yes;

‘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. ‘ Copyright, Designs and Patent Act 1988 Section 11 (2).

What does ‘in the course of employment’ mean? No set definition but generally includes:• Anything that allows you to do your job.• Anything you do in the process of your job.• Anything you do as a result of your job.• Regardless of whether you use company equipment, facilities or time.• Depends on Contract of employment.

Please Note the Words

………subject to any agreement to the contrary…….

Please Note the Words

………subject to any agreement to the contrary…….

• Check the contract of employment, conditions of service, Employee hand book, institutional regulations or any other documents that may dictate the rules and regulations of the University.

• Same applies to student materials too…

– Or does it?

Recent publicity surround Professor Polman from University of Central Lancashire highlights the risks.

• In theory then in order to release OER each institution must know its standard T’s & C’s of employment and check to see if anything is different.

– Each academic must know this too.

Who owns what in a HEI Context.

IPR in HEI Teaching Resources.

An example of a situation we experienced during the project.

– Academic with over 20 years experience in legal studies.– Moved institution– Took his notes with him when he moved and uses them at the new institution.

The Academic given his expertise knew full well that he probably did not own ‘his resources’ but used them regardless.

His attitude was that it is the mechanism that HEI’s have employed for years- ‘the blind eye’/ gentleman’s agreement method.

Then OER came along wanting to release his resources. The academic was all for OER but freely admitted that he didn’t know who owned his resources.

Bear in mind this was a legal expert familiar with IPR and all its nuances.

Consider an academic unfamiliar with their terms of services, employment contract clauses and academic conditions.

OER comes along to upset the Apple Cart

With the OER bandwagon in full flow there is an increased need for clear direction to all staff on IPR.

HEI’s need to know what they own before they release it to avoid embarrassing publicity and costly infringement actions.

HEI A + Academic A + Standard T’s & C’s

HEI B

The problem is that contract law says ‘Nemo dat quod non habitat’ One cannot give what one does not have.

i.e.

HEI A cannot licence resources of Academic A because they cannot be sure they own the rights and have the authority to do so.

The mechanism/ acquiescence that proceeded OER with academics transferring materials between jobs is now causing a headache to OER practitioners.

= OER + IPR Issues??

So what do we do?

Option 1.

We do the Ostrich.

© boazyw 2008. sourced from http://www.flickr.com/photos/23073865@N05/2926217187 download under a Creative Commons license.

© Spartacus007 2007 sourced from http://www.flickr.com/photos/spartacus007/23860934/ download under Creative Commons license

Option 2

We follow the US allow an exception to copyright infringement for education.

US law states;

“the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching

(including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. “

(Title 17 of the United States Code Chapter 5 Subsection 107)

UK also has a fair use doctrine;

“Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research or private study does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement. “

(Section 29 (1) Copyright, designs, and Patents Act 1988)

The US approach is a general exception for educational use whereas the UK version is purely for personal research or study, a vital difference.

So what do we do?

There needs to be an updated Copyright, Designs And Patents Act 1988.

The various amendments and statutory instruments have tried to keep up to date with digital technology but it does not truly reflect the digital age in which we now live.

You only need to look at the music industry and how pirate copies and illegal downloads have flooded the press. Stories from the US showing how individual users are being fined for illegally sharing music.

This is not a new problem.

In 1988 Amstrad released one of the first tape recorders. There was a big argument that people recording TV and radio shows was an infringement of copyright- making an unauthorised copy.

New Statues and legislation takes a long time to be drafted and approved so it will be years before we see anything new, if at all. There was a recent review of IP (Gowers Review) and this process is still ongoing.

So what do we do? Long Term

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Option 3.

An OER Amnesty

All Universities in the UK agree not to take action against each other when ‘their’ content is packaged within another’s OER.

Implement a notice policy whereby if the above occurs, the offender corrects and acknowledges the originators content.

By reducing the fear element of liabilities being due to other Institution’s HEI’s could focus on clearing third party content for inclusion within resources.

Concentrating on releasing resources that truly benefit the collective knowledge.

Repurposing resources to enhance HE across the UK and wider.

Other ideas

– Compulsory licensing/ public domain status for all teaching materials.

– Abolition of IPR- really such a good idea?

– Removal of copyright for digital productions

– Removal of copyright for non-commercial purposes

So what do we do? Short Term

Conclusions

1. Education is Key for OER sustainability

Academics must be educated about IPR & OER methods.

Educational resource production must evolve to become sustainable.

The Ostrich approach is no longer sustainable.

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2. OER must be considered at the point of resource creation.

Retro-fitting IPR rules to resources that have long ignored them is time consuming, cumbersome and therefore expensive.

By rewriting, reproducing third party content, sourcing open content at the point of creation, OER-ing materials is far easier.

Release resources, populating the various repositories promoting the expertise available from your institution while allowing those who are outside of the normal educational channels the opportunity to learn.

Educators can edit and adapt resources to suit their contextual needs and learning styles. This provides a two way dialogue to develop and improve pedagogic techniques and styles.

It can also foster relations between institutions, regions, and across international boundaries.

Even if you think internal use is covered by the Institution’s Copyright Licence Agreement, noting the source of content is always useful (especially when projects like this come along and you have to start from scratch trying to locate source materials in order to get permission).

Conclusions

Credits

This resource was created by Loughborough University and released as an open educational resource through the Open Engineering Resources project of the HE Academy Engineering Subject Centre. The Open Engineering Resources project was funded by HEFCE and part of the JISC/HE Academy UKOER programme.

© Alex Fenlon 2010

(Saying that, I was at work when I created this, as a part of my job so…..)

© Engineering Subject Centre.

(Er… which is not a legal entity capable of owning something, and technically I’m an employee of Loughborough University so…..)

© Loughborough University 2010.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License.

The HEA logo is owned by the Higher Education Academy Limited may be freely distributed and copied for educational purposes only, provided that appropriate acknowledgement is given to the Higher Education Academy as the copyright holder and original publisher.