Supporting education and research INTRODUCTION Charles Oppenheim Loughborough University

Supporting education and research FOUR FORMAL SESSIONS My introduction Creative Commons UK JISC/SURF joint work JISC-funded DRM study carried out by Intrallect Ltd.

Supporting education and research TOPICS I WILL BE COVERING The key IPRs in the digital environment Recent developments – new laws, key court cases, how rights holders have responded to the challenges Practices in HE and FE that have IPR implications

Supporting education and research IPRS OF RELEVANCE Copyright N.B. tension between IPR owners and users – but HEIs and FEIs are both creators and users Database rights Performers rights Trade marks (registered and unregistered) Moral Rights Patents

Supporting education and research RECENT DEVELOPMENTS Law has swung in favour of IPR owners – lifetime of copyright; reduced exceptions to copyright; trade mark rights extended; restrictions on by-passing technical measures; communication to the public right; pressure to extend remit of software patents Good news for creators, bad news for users

Supporting education and research ONE IMPORTANT COURT CASE British Horseracing Bureau versus William Hill Decided by European Court of Justice – no further appeal Restricted application of database right – only applies if you spent significant effort in creating the database in its own right; no right if database just fell out of other activities that were being done Does BT White Pages directory now enjoy database right?

Supporting education and research 1. Copyright / Database Right 2. Contract and Licensing 3. Technological Protection Systems E-Content E-Content Protection: The Triple Lock

Supporting education and research PUBLISHERS HAVE NOT BEEN IN THE VANGUARD These moves have been led by the music, software and film industries – they have also been aggressive in suing for infringement Publishers have been content to cheer these other powerful lobbies on

Supporting education and research ACTIVITIES IN FE AND HE OF RELEVANCE Plagiarism – software recommended by JISC Plagiarism Advisory Service may be of help, but in the end the problem relies on trust and willingness to check; N.B. students offering successful assignments on eBay Assignment of copyright by academics – see JISC/SURF talk later E-learning materials – see work of HEFCE/UUK Working Group on IPR in e learning at /03_08.htm /03_08.htm Open access journals and subject-based repositories

Supporting education and research ISSUES FOR INSTITUTIONAL REPOSITORIES Who has the rights - academic or institution? Guidance for academics on assignments/licences so that retention of required rights is encouraged Amendment of an assignment/licence must be done properly to have the desired legal effect ; JISC/SURF advice coming soon Potential academic freedom and employee contract issues

Supporting education and research ACTION PLAN TO HELP IRs Policies on: –first ownership of copyright –joint copyright ownership issues –Use of particular publishers Encourage and guide academics to: –retain copyright, if possible –negotiate amendments to restrictive agreements, e.g., –actively support journals and publishers that have liberal copyright policies, including open access journals

Supporting education and research TERMS IMPOSED ON CONTRIBUTORS TO AN IR, AND IR POLICIES Needed for: –Copyright abuse –Moral rights issues –Click-through licences for disclaimers –Policy on article withdrawal/removal, i.e., notice and take down procedures

Supporting education and research PUBLISHING ISSUES institutional publishing involves risks: –securing the rights to publish or warranties –plagiarism/infringement of copyright –infringement of other IP rights –defamation –Liability for provision of inaccurate information –contravention of particular local laws –Data protection –accidental/premature disclosure of confidential information, findings, etc. – might damage chances of getting a patent later

Supporting education and research SUMMING UP Purpose has been to give you a flavour of legal issues associated with digitisation in HE and FE Many issues NOT covered, e.g., digitisation of print materials held by libraries Time to discuss everything later in the discussion session

Supporting education and research Towards Creative Education: Lessons from the CC-UK experience Prodromos Tsiavos CC-UK Legal Project Lead

Supporting education and research Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

Supporting education and research Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

Supporting education and research Acknowledging the institutional ecology of Copyright Law Copyright Sources: international treaties, regional economic organisations (EU), national laws Licensing Schemes Collecting Societies Major Rights-holders and bottlenecks Mutliplicity of roles and Challenges for the Education Sector Property vs. Intellectual Property

Supporting education and research Relevant EU Legislation (I) Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (the Software Directive) Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (the Rental Right Directive) Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights (the Term Directive)

Supporting education and research Relevant EU Legislation (II) Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (the Database Directive) Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (the Satellite and Cable Directive) Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society

Supporting education and research Relevant National Legislation (examples): UK: Copyright Act 1988 Germany: Urheberrechtsgesetz von 1965

Supporting education and research Tracing the flow of rights Content Creators Disseminators Containers Collectors Entrepreneurs Public Institutions Archives Displays Users Licensing Schemes Compulsory Licensing Employment Contracts Mass Licensing Rights Markets Digital Rights Management Systems Educational Software Access Control Systems Institutional Information Infrastructures Tracing/ Searching Technologies

Supporting education and research Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

Supporting education and research Creative Commons: making digital content more widely available CC addresses legal problems in the area of global copyright law It is an NGO run by international lawyers and academics It is generously supported by the Center for the Public Domain and various other charitable foundations Its objective is to establish a viable middle ground between stringent copyright controls and the completely unfettered use of content in the digital age

Supporting education and research Creative Commons: pursuing a viable middle ground in copyright law providing a set of user-friendly online licenses combined with a sophisticated search technology authors, musicians and other creators of content can use these licenses to protect some of their ownership rights, while giving others away the result is a new global standard or layer of copyright law promoting the dissemination of digital content and the free exchange of ideas

Supporting education and research © All rights reserved; stringent copyright laws No rights reserved Some rights reserved Contributing to high- quality digital content online

Supporting education and research Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

Supporting education and research Three Expressions: Human-Readable: Commons Deed

Supporting education and research Three Expressions: Human-Readable: Commons Deed Lawyer-Readable: Legal Code

Supporting education and research Three Expressions: Human-Readable: Commons Deed Lawyer-Readable: Legal Code Machine-Readable: Metadata

Supporting education and research Three Expressions: Human-Readable: Commons Deed Lawyer-Readable: Legal Code Machine-Readable: Metadata Logo + Link

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Licenses: Attribution No Commercial Use No Derivative Works Share Alike

Supporting education and research Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

Supporting education and research Jurisdictional origins and future perspectives The original licences were drafted under US-law and in English Local legal versions today exist for Japan, Brazil, Finland, Holland and Germany CC is collaborating with local project leads (ie mostly academic institutions) in the various target countries The porting process / guidelines

Supporting education and research Think Glocal The Creative Commons project is global in scope: seeking to reform intellectual property law in all major jurisdictions The projects success ultimately depends (i) on acceptance and use of the licences by consumers / end-users in many different localities and (ii) on the licencess enforceability in the courts Hence, the licences must be transposed into different jurisdictions and languages

Supporting education and research Why is it legally necessary to offer international versions of the licences? [consumer protection] (I) The problem of language According to the case law of the German BGH, standard terms and conditions for consumer contracts (AGBs) have to be phrased in German The French Loi Toubon required all contracts to be drafted in French; though the law is revised by now, free software licences such as the GPL are still regarded as invalid because they are in English The principal reason for these difficulties is the European Directive on unfair terms in consumer contracts

Supporting education and research Why is it legally necessary to offer international versions of the licences? [moral rights] (II) The problem of waiving moral rights Differences between Anglo-Saxon copyright law and continental droit-dauteur systems Pace article 6 Berne Convention a global waiver of moral rights is not possible under (eg) German law This gives rise to complex questions in the case of derivative works and the Sharealike licence

Supporting education and research Why is it legally necessary to offer international versions of the licences? [liabilities and warranties] (III) The problem of liablities and warranties Global disclaimers exempting licensor from any warranty or liability (eg sec. 5 and 6 CC) whatsoever are considered invalid under German law This is the case for both consumer contracts (AGBs) and non-consumer contracts (eg cases of grave negligence) Mandatory provisions of the BGB

Supporting education and research Internationalizing the licences gives rise to important legal questions In international private law Copyright issues are governed by the principle of territoriality as set out in the Berne Convention Contractual issues encompass such questions as formation of contract, the consequences of non- performance, interpretation, warranty and contractual liability; refer to article 4 of the Rome Convention 1980

Supporting education and research So how should we deal with these questions? Is it legally possible to have one generic legal text in English that is globally enforceable? Licencing under a multiplicity of different licences Interoperability clauses

Supporting education and research Agenda Introduction The Objectives of the Creative Commons Project The Licences and How they Work Internationalizing the Licences The UK Discussion

Supporting education and research The UK CC licence draft The CC UK licence currently under discussion was drafted in collaboration with the BBC The draft is much more readable than its US counterpart (and indeed than most other national versions) as it uses plain and simple language The draft is also laudable in its intent to constitute a generic license for global use (rendering unnessecary the effort of manifold translation)

Supporting education and research The UK CC licence draft: process (I) CC-UK organisational structure (a): Hosting Institution Project Coordinator Legal Project Lead Legal Advisory Board Licence Drafting Team CC-UK mailing list

Supporting education and research The UK CC licence draft: process (II) CC-UK organisational structure (b): Public Project Lead Public Advisory Board Public Interest Organisations Creative Commons Network

Supporting education and research The UK CC licence draft: process (III) Open Sourcing the drafting process: Original draft by Law Firm Peer review by LAB and CC-UK mailing list Draft by the Oxford drafting team Peer review by CC-UK mailing list + Public organisations Focus groups/ interviews with artists Co-drafting with the BBC/ other public interest orgs Peer review by CC-UK mailing list/ LAB/ iCC Final draft

Supporting education and research The UK CC licence draft: synergy The role of the public sector in the UK: Re-inventing the public sector Creative Citizens Involved public interest organisations include: BBC Tate British Library British Academy Channel 4 Collecting societies

Supporting education and research The UK CC licence draft: creativity Input from focus groups: Arts Council Collaboration 12 artists focus group Narratives Real life use of the CC web interface Developing new forms of licences

Supporting education and research The UK CC licence draft: Issues Legal: Interoperability (BBC/ Europe) Black holes Moral Rights Collecting Societies Bare Licence? Strategy: Community building Bring the content out Beyond Licensing?

Supporting education and research CC-UK in the educational context I: Actors - Commercial Educational Content Providers vs Open Content -The role of Collecting Societies/ Trade Unions -The role of (public) broadcasters (BBC/ Channel Four) -The role of Museums (Tate) -The role of Public Libraries (British Library) -The role of Regulators (OfCom) -The role of Public Service (The Arts Council) -The role of Academic Institutions (JISC, Oxford, The London School of Economics)

Supporting education and research CC-UK in the educational context II: Tensions Content Creators/ Collecting Societies vs. Content Repositories/ Broadcasters: Different revenue models and their implications (commissioned vs self-standing works) Publishers vs. Content Repositories Questioning the role of public broadcasters Commercial vs. non-Commercial educational material providers (content vs. Service)

Supporting education and research CC-UK in the educational context III: finding and creating content The changing concept of authorship/ incouraging initative Copyright Education Find Available Material Searches Repositories Minimising costs Sharing Resources Encouraging Content Production

Supporting education and research CC-UK in the educational context IV: The Future Translation Issues CC-Europe Synergy Creative Licensing (CC-UK) Meta-Commons (CC-UK)

Supporting education and research cases magnatunes

Supporting education and research [case One] magnatunes

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[case two] European Schoolnet

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[case three] Code v.2

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Supporting education and research [case four] Tate d_cultuRe : d0wnloAd_saMple+cuT-uP: cultuRe

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Supporting education and research [case five] Channel4: pix + mix

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Contact Information: Creative Commons Creative Commons UK Centre for Socio-Legal Studies Wolfson College OX2 6UD, Oxford Unitied Kingdom Prodromos Tsiavos:

Supporting education and research The Zwolle Project: Balance in Scholarly Communication Ralph Weedon JISC Legal

Supporting education and research The Zwolle Initiative Three conferences Copyright Management in HE The Zwolle Principles Optimal access to scholarly information Balanced approach to copyright Zwolle Group

Supporting education and research Context: SURF & JISC In part grew out of Zwolle Initiative Concern for scholarly communication in digital age Realisation that several stakeholders involved in this communication Project aims to assist the implementation of the Zwolle Principles through guidance on: –Publishing Agreements –Copyright Policies

Supporting education and research The Work Packages There are five in the JISC/SURF programme Focus: copyright, access & communication –Awareness and understanding of © & OA Packages I & II concern the relationships between stakeholders & a balance in rights held I deals with publishing agreements & the rights each stakeholder may require II on institutional copyright policies and also relates to institutional repositories

Supporting education and research Publishing Agreements Author & Publisher relationship The Zwolle Copyright Toolkit The need for balance & consensus –Business models in the digital age Elementary rights Model agreements and provisions Applicable to the Netherlands & the UK

Supporting education and research Copyright Policies The author and the institution Link to Work Package I Short survey of sample policies – NL & UK Practical guidelines Aim to assist creation/revision of policies Contracts of employment National law

Supporting education and research Institutional Repositories Context: expansion of take up of IR Current examples include: –JORUM –BioMed Central Open Repository JISC: FAIR programme SURF: DARE projects OAI initiative

Supporting education and research Deliverables: IR IPR and the need for licenses with IR Model user license Notice & Take down procedures Discussions with AUT & U UK Survey of other JISC work in this area

Supporting education and research Context: Open Access The Open Access movement –Access to scholarly communication & the digital divide –Berlin Declaration HoC Committee on Science & Technology PALS: Publishers & JISC - NESLi2 Research Councils Alternative approaches to copyright & access –Creative Commons –Copyleft –OA Journals such as BioMed Central

Supporting education and research Consultation is a key Authors Librarians Institutions Publishers Professional organisations Research Councils In both NL & UK

Supporting education and research Deliverables and Outputs Implementation and Advocacy WP I: –List of elementary rights: publishers & authors –Model publishing agreements and provisions WP II –practical recommendations on © policies –IR: model user license + Notice & Take down procedures –Encourage greater take-up of IR

Supporting education and research Summary The projects are expected to last 6 months Results on: –JISC website –Zwolle pages of SURF website What do you think the issues are? Contact us at:

Supporting education and research Lessons learnt from the JISC DRM Study Ed Barker, Intrallect Ltd

Supporting education and research International IPR study Aim: –Guidelines for UK HEIs on handling IPRs in e- Learning Funding: –HEFCE in partnership with UUK and SCOP Method: –Five case studies to cover the spectrum of e- Learning programmes Further Information: –

Supporting education and research JISC DRM Study Charles Duncan, Ed Barker, Peter Douglas, Martin Morrey Intrallect Ltd Charlotte Waelde University of Edinburgh

Supporting education and research Structure of Talk Background Information Study Methodology Results Recommendations

Supporting education and research DRM Study Objective: –To make recommendations on the best approach for JISC and the UK education and research communities to adopt in relation to DRM Background: –Funded under JISC Shared Service Programme –Completed November 2004

Supporting education and research contributing institutions consuming institutions repository Non Trivial Example

Supporting education and research Why is DRM needed? In General –Anyone can be a publisher –Easy to modify/copy –Ready access to digital resources For Education –To allow staff and students to use digital resources with confidence that they are adhering to the law and rights holders wishes –To allow rights holders to protect their digital resources

Supporting education and research Scope of the Study Types of activity Types of resources Legal framework Technology aspects Uses Digital Preservation Architectures Standards

Supporting education and research Methodology Methodology: survey use cases requirements options cost/benefit/risk analysis iterate

Supporting education and research Generating Use Cases Wide group of users consulted –lecturers, librarians, funding bodies, publishers, authors, data centres, government organisations 5 workshops 125 Use Case summaries 32 Fully developed 7 Interviews/Focus groups

Supporting education and research Use Case Example Use Case Summary –A learning technologist wants to adapt a diagram from an existing published work into a multimedia learning object. They want to make it available to academics to use with their students on and off line. Primary Actor (and goal) –Learning Technologist (Adapt and share a learning Object)

Supporting education and research Rights Management DRM Policy Creation DRM Policy Projection

Supporting education and research Recognition of rights: Key Point:- –HE and FE staff are not always aware of rights ownership issues Implementers need to provide clear guidance to staff on ownership, publication routes, assignment rights and procedures. Implementers need to ensure that staff are aware of rights clearance procedures.

Supporting education and research Assertion of Rights Key Point –Confusion is caused by the large variety of licences being used. JISC should work towards a common set of licences (or licence templates) JISC should investigate ways in which permitted uses and constraints can be supported in common licences and digital rights expression languages

Supporting education and research Expression of Rights Key point –Digital Rights Expression Languages (DRELS) can be used to describe permitted uses, rights holders etc –Examples of DRELS include ODrL, MPEG, XrML JISC should investigate and recommend suitable application profiles of digital rights expression languages (DRELs)

Supporting education and research Dissemination of rights Key Point –Methods for passing rights information are not yet established. JISC needs to be able to establish in practical terms how DRM can be operated in the JISC Information Environment and e-Learning Framework JISC needs to provide a lead in the move to the use of globally unique identifiers from theoretically possible to practical implementation

Supporting education and research Exposure of rights Key Point –The permitted uses of a resource need to be shown to the user in a clear way Possible methods could be based on widespread use of symbols

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Enforcement of Rights Key Points –Must be in legal position to enforce rights –Try to ensure access management without impeding legitimate use Athens is the most widespread access management system in UK HE JISC is currently working on Shibboleth and Premis

Supporting education and research Further Info