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Contents 1 Copyright 2 Copyright alternatives - open licenses 2.1 Which license to choose 2.2 Creative Commons licenses 2.3 GNU Free Documentation License (GFDL) 2.4 Custom licenses 3 License incompatibility 4 Publishing OER - clearing copyright 4.1 Who owns what? 4.2 Third-party materials 4.3 Why is fair use/fair dealing not sufficient? 4.4 Find a friendly lawyer 5 Notes 6 References 7 Further reading

[edit] Copyright

Copyright law varies from country to country, but it generally provides a limited period of legal exclusivity for original works. This means that only the copyright holder has certain rights. It does not matter whether the works are published or not; protection arises when the work is fixed in material form. Most commonly for educational resources this means written down or recorded.

Copyright reserves certain rights for the copyright holder. All others need to obtain permission from them to do any of the following:

• Create derivative works from the original work, for example by translating it.
• Distribute originals or copies of a work, for example by printing a document for all students in a class.
• Publicly display or perform a work, for example by showing a video to a class.

These limitations cease once the copyright period is over. The work enters the public domain. Once a work is in the public domain anyone may perform any of the acts outlined above, without the need for permission. It also means that no-one can appropriate or lay claim to the work.

In most countries, certain exemptions to copyright protection are set out in laws or regulations. These are referred to as fair use in some countries, or fair dealing in others. Typically education institutions are allowed some flexibility in reproducing copyright materials for the purpose of education. However, the law is often unclear on the exact amount of flexibility permitted; it is not easy to find out what exactly an educator is allowed to do. Also, these provisions differ from one country to another. Something that may be permitted in one country may not be allowed in another.

[edit] Copyright alternatives - open licenses

OER projects make use of open licenses. These are based on the legal protection that copyright affords, but grant more rights to users. Copyright law vests copyright in the author automatically. By using an open license, the author retains copyright but can specify clearly which rights he or she is prepared to share with users of the work. The most popular set of licenses are the Creative Commons licenses, but many other types exist. The GNU Free Documentation License (GFDL) is another that has special significance (it was used originally by the Wikipedia project).

[edit] Which license to choose

There is no one answer for which open license is the best to use (or to avoid). Keep in mind that the choice of license affects how people can use your resources, as well as how easily they can be combined with other resources. Some argue that licenses create pools of resources and that large pools are more sustainable than individual works. The more open (less restrictive) the license, the more reuse it will enable.

The ccLearn project, an initiative of Creative Commons and the Hewlett Foundation, is addressing this issue by providing information on the use of particular licenses. Its report, What status for "open"? An examination of the licensing policies of open educational organizations and projects looks at the licensing choices of a variety of open education projects (ccLearn, 2008).

[edit] Creative Commons licenses

All current Creative Commons (CC) licenses require that a user give credit to the original author ("attribute" them) and allow use and distribution of the resource.^[1] Some Creative Commons licenses are more restrictive and, for example, do not allow modification of a work to create a derivative work, or commercial use. Licenses that include a "Share Alike" condition require that any derivative works are licensed under the same open license.

The Creative Commmons license conditions are as follows:

• Attribution - You let others copy, distribute, display, and perform your copyrighted work - and derivative works based upon it - only if they give credit the way you request.
• Noncommercial - You let others copy, distribute, display, and perform your work - and derivative works based upon it - but only for noncommercial purposes.
• No Derivative Works - You let others copy, distribute, display, and perform only verbatim copies of your work (not derivative works based upon it).
• Share Alike - You allow others to distribute derivative works based on your work - but only under a license identical to the license that governs your work.

These can be combined to create licenses with very specific requirements (for example Attribution-Noncommercial-Share Alike). While this gives the copyright holder flexibility, it can be confusing for a user to determine what exactly he or she can and cannot do with the content. The different license conditions are explained in more detail on the Creative Commons website.

In addition, there are jurisdiction specific licences for many countries. Using a country specific licence does not mean that the license only applies in that country. Instead, it ensures that the licence is optimised for the context in which the work is most likely to be used. All country specific Creative Commons licences are enforceable around the world. There are also generic ("unported") licences, which can be used if there is no country specific licence available.

[edit] GNU Free Documentation License (GFDL)

The GNU Free Documentation License was created by the Free Software Foundation and was originally used by Wikipedia. The GFDL was incompatible with many CC licenses, which prevented users from combining content to create derivative works (see section on license incompatibility below).

In June 2009, the Wikipedia community and board of directors of the Wikimedia Foundation approved the adoption of the Creative Commons Attribution-Share Alike license. This has resolved one of the major sources of open content incompatibility.

[edit] Custom licenses

Despite all of these choices and their inherent flexibility, some projects find that none of the licenses available provide exactly the right kind of legal requirements. For example, the BCcampus project in Canada developed a license that contains specific limitations on the region ins which resources may be freely used.

"The BC Commons license is similar to the Creative Commons license but limits sharing to the local context of BC’s public post-secondary system. Resources licensed via BC Commons are available to BC public post-secondary faculty and staff only. This option provides developers with an opportunity to experience sustainable development benefits through sharing on a local level, among peers, before considering the larger global context. Over 90% of OPDF developers have chosen the BC Commons license." Paul Stacey, BCcampus case study (2007)

[edit] License incompatibility

An unfortunate outcome of having many different open content licenses and licensing options is that, inevitably, some licenses are incompatible with others. License incompatibility means that content that is licensed under a particular license cannot be combined with content licensed under certain other licenses. As a result, the user might not be able to combine OER that come from different sources, even though both are "Open" Educational Resources. This is especially unfortunate as authors have generally chosen to release resources under an open license to make them as widely accessible and as easily adaptable as possible.

To give an example, for this Toolkit hosted on the UNESCO OER Community wiki, we have taken text from Wikipedia and WikiEducator. The WikiEducator material has been adapted to make it more suitable for the intended audience. If we wanted to include content from the MIT OpenCourseWare site we would only be able to take small amounts of text under the fair use exception. The reason is that the MIT OpenCourseWare license does not allow commercial re-use. The wiki has a more open license (CC Attribution-Share Alike), which permits commercial use of content.

The CC license compatibility table below can help determine whether content can be combined or not. If you require content from two sources that are incompatible, it is always possible to keep the two content sources seperate technically, yet link to both of them. For example, rather than copy and paste content from MIT OCW, simply point to the URL.

[edit] Publishing OER - clearing copyright

One of the most burdensome aspects of publishing OER is to ensure that none of the intended material falls under someone else's copyright. In other words, you may not publish content as an OER unless you are the copyright holder, or have obtained explicit permission from the copyright holder.

"Launching an OER initiative in 2003 was not met with open arm enthusiasm by all. Having to deal with Intellectual Property and copyright issues up front caused our developers a lot of angst as these are contentious issues handled in different ways at each public post secondary institution. While a considered and legally counselled approach was built in to our OER initiative IP and copyright are emotional issues that tend to get people riled up requiring rational and continuous explanation to sooth." OER stories: BCcampus (Stacey, 2007)

[edit] Who owns what?

It is crucial to clarify ownership and only publish resources that you are legally entitled to publish. The first step is to review your instiution's policy or guidelines on ownership of resources developed by employees. Some require all employees to cede ownership to the institution, while others allow more flexibility. There may also be licensing guidelines for resources developed by employees. For example, in some cases the employee retains the copyright, but may be required to license their materials to the institution.

"A key BCcampus educator service is using contractual agreements and licenses to sort out Intellectual Property (IP) rights and copyright of resources in advance, as part of the development process. Agreements and licenses state: - who owns what - for what uses the property is offered - what conditions of acknowledgement and/or payment apply to each use." OER stories: BCcampus (Stacey, 2007)

[edit] Third-party materials

The second step is to check whether your educational resources include content created by others, for example images or diagrams that were copied from a website into lecture presentation slides. Supposing that the materials are not already licensed under an open license, you have a few options:

• Remove: If they are not essential to the use of the OER, you could decide to remove third-party materials. If you decide to do this, it is good practice to mention it in the OER and to make sure that users understand where content is missing and why.
• Replace: It is now possible to find open alternatives to many non-free images and diagrams, for example, by looking on websites such as Flickr. In other cases, where it is not too much work, you could decide to recreate an image or diagram, which you can then license openly.
• Relicense: You could ask the copyright holder to license the materials under an open license. This usually requires explaining how open licenses work and why you are requesting an openly licensed version of their materials. In cases where removal or replacement are not possible, or you have a reasonable expectation that the copyright holder is happy to relicense, this can be a good option. Another benefit is that once the materials have been relicensed they can be used by any one else that wishes.

Dealing with third-party materials takes a lot of work, and small OER projects might not have the resources to review copyright, recreate materials or ask for materials to be relicensed. The easiest way to avoid this is to select for publication only those courses that do not contain any (or only very few) third-party materials.

[edit] Why is fair use/fair dealing not sufficient?

Although academics are allowed to use limited amounts of copyright material created by others in a new work under fair use or fair dealing provisions, this limits the possible re-use of the new work. Every country has different provisions, so what is permitted in one country might not be permitted in another; some countries do not recognise fair use/fair dealing at all. This means that someone in another country may be afraid to adapt and re-use the new work in turn if they think that the fair use or fair dealing exemption on which the creator relied does not apply to them. This incompatibility creates inefficiencies on the Internet. Proposals are being made to the World Intellectual Property Organization (the UN body with responsibility for copyright) for an international treaty on minimum exceptions for education for all countries. In the meantime it is best to make use of resources that are available under open licences.

[edit] Find a friendly lawyer

Finally, it is extremely useful to develop a good working relationship with university lawyers, or at least a copyright expert based at the university. Good places to start looking are the law faculty or the library. Together with this person, review the existing laws and regulations. Develop a licensing strategy that fits with university policy and allows for the level of freedom most suited to your situation. The national Creative Commons chapter, if there is one, could also answer questions and help find a lawyer if necessary. There is a list of national OER chapters on the Creative Commons site.

[edit] Notes

[edit] References

• ccLearn. 2008. What Status for Open? An Examination of the Licensing Policies of Open Educational Organizations and Projects. San Francisco, CA, ccLearn. http://creativecommons.org/weblog/entry/11700
  • Download PDF
• Stacey, P. 2007. OER Stories: BCcampus. http://oerwiki.iiep-unesco.org/index.php?title=OER_stories:_BCcampus

[edit] Further reading

• Giving Knowledge for Free. The Emergence of Open Educational Resources (OECD, 2007, Paris, OECD Publishing). Chapter 5, Copyright and open licenses, pp. 71-85.
• Guide To Open Content Licenses by Lawrence Liang (2004, Rotterdam, Piet Zwart Institute). A detailed treatment of open content licensing, with a comparison of many open content licenses.
• Introducing Copyright: A Plain Language Guide to Copyright in the 21st Century by Julien Hofman (2009, Vancouver, Commonwealth of Learning). A general introduction to copyright for the non-specialist reader. It includes a chapter on open licensing.
• Permission granted: open licensing for educational resources in Open Learning: The Journal of Open and Distance Learning (Vol. 24, No. 1, February 2009). Ahrash Bissell's article explains the logic of open licensing and why it is essential to the OER movement.