Checklist for OER Upload Welcome to the SWAPBOX checklist. This tool will help you to identify and address issues arising from the use of third- party, copyrighted materials present in your resource. This work is licenced under a Creative Commons Licence. The SWAPBox team wish to thank Kate Borthwick and Erika Corradini of the HumBox team for their work in developing the original copyright workflow.Creative Commons Licence Click the START button in the box below to begin. START

Checklist for OER Upload START Publishing your teaching resources to SWAPBOX means that your works will be used by a community that operates beyond the boundaries of your own institution. Everyone will be able to download your materials and use them with their students. For this reason, it is important that the resources uploaded to SWAPBOX offer good examples of how to make available your own and other people's work and provide the right information on ways in which such works can be used by the community. It is not necessarily true that a resource containing third-party works cannot be published in open sharing. On the contrary, most third-party materials can be made available, provided that they are treated with good academic care. This workflow will help you to make sure your resources are ready to be uploaded to SWAPBOX. Have you used other people's materials to enhance your teaching resource? NO YES START AGAIN

Checklist for OER Upload NO The resource is your own and does not contain materials created by others; your resource is clear of copyright. Your resource is now ready to be published to SWAPBOX! Click on the icon to find out how PUBLISH TO SWAPBOX START AGAIN

Checklist for OER Upload YES Materials produced by third parties and licenced for use in open sharing can be uploaded to SWAPBOX, for example works made available thorugh most types of Creative Commons licences or directly licensed to you by their owners. Similarly, third-party works used under "fair dealings" can be uploaded to SWAPBOX. All other works will require a permission from the rights owner in order to be published openly. You can find out about "fair dealings" in SWAPBOX or whether you need to obtain permission to publish some of the materials contained in your resource by clicking on one of the two options given below FAIR DEALING EXCEPTIONS PERMISSION TO PUBLISH IN SWAPBOXSTART AGAIN

Checklist for OER Upload FAIR DEALING EXCEPTIONS In certain circumstances, some works may be used without licence if that use is considered to be "fair dealing". There is no strict definition of what this means but it has been interpreted by the courts on a number of occasions by looking at the low economic impact that use of that materials has on the copyright owner."fair dealing" There are several "fair dealing" exceptions, though the one which is most relevant to publishing in open sharing is "Criticism and Review". CRITICISM AND REVIEW START AGAIN

Checklist for OER Upload CRITICISM AND REVIEW Section 30(1) of the Copyright, Designs and Patents Act 1988 provides a defence for copyright infringement of fair dealing for criticism or review. There are four aspects that you must show in order to rely on this defence: 1. Was the dealing for the purpose of "Criticism or Review"? The Courts have decided that this test must be taken literally for example using small excerpts from books in a review is considered ok. 2. The work must have been made available: this means made available to the public and includes rental, live performance etc. 3. Was the dealing fair? A major factor here is the amount of the work that has been taken and whether the critcisms are unbalanced or malicious. 4. Give Sufficient acknowledgmentSufficient acknowledgment If the use of third-party materials in your resource ticks off the requirements listed above, you can publish your resource to Swapbox. If not, proceed to Permission to publish in SWAPBOX PERMISSION TO PUBLISH IN SWAPBOX PUBLISH IN SWAPBOX START AGAIN

Checklist for OER Upload PERMISSION TO PUBLISH IN SWAPBOX Sometimes permission has to be obtained to publish third-party works in SWAPBOX. In order to do this, the rights owners have to be identified, contacted and informed about the use that you want to make of their works. Regardless of whether the owner is known or unknown (or a student), it is advisable that you make the initial effort to get hold of them. THE OWNER IS KNOWN THE OWNER IS NOT KNOWN START AGAIN

Checklist for OER Upload THE OWNER IS KNOWN If you know the owner of the third-party works included in your resource you can make contact and ask them permission to use their work for educational and non-commercial purposes in SWAPBOX. One of the following is likely to happen: NO ANSWER NO PERMISSION PERMISSION OBTAINED START AGAIN

Checklist for OER Upload NO ANSWER The rights owner(s) have been contacted repeatedly, but never replied. ASSESS RISKS START AGAIN

Checklist for OER Upload ASSESS RISKS In the event that permission cannot be obtained for reasons that may often be independent from your will, you may want to plan a strategy that helps you manage the risks involved in publishing your resources in open sharing before uploading them toSWAPBOX. 1. What are the risks involved in publishing your resource as it is to SWAPBOX? 2. Are those risks real? how likely are they to happen? 3. Is the risk high or low? HIGH RISK LOW RISK START AGAIN

Checklist for OER Upload HIGH RISK High-risk materials, such as music, commercial films, artworks created by high profile artists, broadcasts etc. need to be handled with care when used to enhance resources created for open sharing. What uploaders may do if their resources are at high risk is mitigate that risk by working problems around and rely on the SWAPBOX Take-down Policy. MINIMISE RISKS START AGAIN

Checklist for OER Upload MINIMISE RISKS 1. Establish and acknowledge ownership and report details on resource e. g. © Owner, publisher, year of publication, and all details that may be of help to direct users/viewers to the original resource 2. Embed resource in a context (e. g. ppt and word documents, metadata description, handouts etc.) clearly indicating the purpose for which it is used, for example: criticism and review; not for profit playing of music; non-commercial use of resource 3. It is advisable to use only ‘small’ portions of third-party materials, though small is in no way defined by the law 4. When in doubt about ownership try and link to external source 5. Monitor numbers of resource downloaders/viewers (when possible) 6.Consider having a view-only policy for resources containing third-party materials for which permission to re-purpose was not obtained (also low-resolution or watermarked images may be considered) 7. Rely on notice and take-down policy (though this is unlikely to be a long term policy) 8. Letter of apology (though this is unlikely to be a long term policy) 9. Decide not to publish 10. Find alternative materials copyright-clear or available under the terms of CC Licences which allow you to re-purpose and re-use it WHAT NEXT? WHAT IF IT ALL GOES WRONG? START AGAIN

Checklist for OER Upload WHAT NEXT? Publish to SwapBox START AGAIN

Checklist for OER Upload WHAT IF IT ALL GOES WRONG? Many authors will take a tolerant view of the use of their material before they sue, especially if their material is used in educational environments and for non-commercial, educational purposes. In all probability, they will contact you first in writing and ask that you take the infringing work down; see SWAPBOX Take-down Policy. For further details see: Intellectual Property Rights considerations and Legal Aspects of OERIntellectual Property Rights considerationsLegal Aspects of OER START AGAIN

Checklist for OER Upload THE OWNER IS NOT KNOWN If the owner(s) of a work cannot be identified and/or located after attempt has been made to do so, the work in question is called 'orphan'. In such an event, it is good academic practice to keep any record of the efforts you made to make contact with the copyright owner(s), in case you decide to use their works. At this stage you may consider assessing the risks involved in publishing your resource without permission and plan a strategy to manage them effectively before you publish your resource to SWAPBOX. ASSESS RISKS START AGAIN

Checklist for OER Upload LOW RISK Low-risk material is likely to include content such as documentary photographs, sound recordings of members of the public and amateur films. Using this kind of material in your resource is not very likely to have an economic impact on the revenue owners make from that material. Regrdless of the risk level, such works have to be duly attributed to their legitimate owners. You may find detailed information about getting permissions from copyright owners and approaches you take with copyright owners from: Intellectual Property Rights considerations and Legal Aspects of OERIntellectual Property Rights considerationsLegal Aspects of OER START AGAINMINIMISE RISKS

Checklist for OER Upload NO PERMISSION Although it is very unlikely to happen, it is the owner's right to deny permission to use their works in open content. This however does not mean that your resource cannot be published in SWAPBOX. There are ways around such issues. Possible strategies are outlined below. FIND AN ALTERNATIVE ASK FOR ADVICE DO NOT USE ASSESS RISKSSTART AGAIN

Checklist for OER Upload DO NOT USE If permission has not been obtained to use third-party works, it may sometimes be advisable not to use the materials protected by copyright, especially if the risks implied are high and very likely to happen. An assessment of the risks involved may at this stage be essential, you may therefore want to ask advice from experts.advice from experts NO PERMISSION START AGAIN

Checklist for OER Upload ASK FOR ADVICE Ask for advice on how to work problems around. Legal services, ICT experts, librarians at your institution may be of help in finding ways to solve copyright issues related to the use of third-party materials in your resource. NO PERMISSION START AGAIN

Checklist for OER Upload FIND AN ALTERNATIVE Alternative copyright-clear materials, possibly made available on the terms of Creative Commons licences (for example Attribution-Share Alike) that allow for re-using and re- purposing are often quite easy to find on the web. Try Wikimedia Commons or Flickr Crative CommonsWikimedia CommonsFlickr Crative Commons NO PERMISSION START AGAIN

Checklist for OER Upload PERMISSION OBTAINED After third-party materials have been licensed to you for using in SWAPBOX you should always attribute them. Such works may not be subject to the type of licence (Creative Commons) that you will choose for your resource, however.Creative Commons This implies that whenever the relevant resource is re-used outside SWAPBOX, either the work used under the terms of a specific permission is removed or permission from the legitimate owners obtained again. START AGAIN