1. OER, IPR, and the Law The Good, The Bad and The Ugly? 20 October 2009

2. 2 Hi! Jason Miles-Campbell JISC Legal Service Manager jason.miles-campbell@jisclegal.ac.uk 0141 548 4939 www.jisclegal.ac.uk

3. 3 Support from JISC Legal Hub of information Publications Recordings Helpdesk Review of Documents Limits

4. 4 Some Legal Issues… Incoming IPR Outgoing IPR Data Protection Accessibility Law Available Support

5. 5 IPR in One Slide Are you the owner? If not, get permission Or use statutory exception

6. Creating OER Do you own the IPR? Yes! Apply CC Licence No. Get permission to apply CC Licence We can’t get permission It can’t be an OER Some of it. Apply ‘yes’ and ‘no’ as appropriate Don’t know. Find out, or get someone to decide. 6

7. 7 Incoming IPR Rules with regards to ownership Employees Institutions Contractors Re-licensing

8. 8 Third Party IPR Some approaches: – omit – alternatives – mark clearly – append

9. 9 Fair Dealing for Review & Criticism Uncertainty Extent Consequences Decisions

10. 10 Outgoing IPR ‘Openness’ Creative Commons Attribution +/- Derivatives +/- Commercial +/- Share Alike

11. 11 Data Protection Ideally, avoid personal data in outputs Otherwise explicit consent

12. 12 Your Questions - 1 I realise that a copyright agreement can only be made in writing and not verbally... however in low risk cases is it possible to accept an emailed agreement rather than a signed hard copy?

13. 13 Your Questions - 2 When a copyright owner has given permission to use an image, and the appropriate CC licence agreed by both parties, is it recommended to record this within the XMP image tags? If so, any advice on what is considered the best method of doing so?

14. 14 Your Questions - 3 One of the main copyright clearance issues that worry my partners is 'diagrams' or 'drawings' representing 'facts' or 'research'. Ideas and facts are not copyrightable, but of course the 'diagram' or 'drawing' is. But what about the ‘research' behind the diagram? How much can you re-draw or re- present the 'facts' to get around getting clearance to use the material?

15. 15 Your Questions - 4 Some images on Flickr were CC licensed, but then changed to “(c) all rights reserved”. Without a version control system does the new licence automatically apply retrospectively? I assume the stated licence at the time applies, the new licence only applies since it was changed. Actually the real question is to whom goes the burden of proof?

16. 16 Your Questions - 5 Has anyone done any work on developing or using a common IPR clearance pro-forma for an OER contributor in their institution?

17. 17 Suggestions to Qn 5 “I hereby confirm that the materials specified above were created in the course of my employment at the University of Jiscadvancia” “I hereby agree to the licensing of the materials stated above under the Creative Commons BY- NC-SA Licence for England & Wales” “I have not previously assigned my rights nor granted an exclusive licence which would be incompatible with Creative Commons licensing.”

18. 18 Suggestions to Qn 5 “I confirm that all inclusions which are or may be subject to third party intellectual property rights have been marked and acknowledged appropriately.” “I confirm that any personal information relating to a living, identifiable person, has been marked as such.”

19. 19 Your Questions - 6 If you have used third party materials available under CC or other 'open' licence types, what happens if: a) the licence is incorrect or wrongly/falsely applied; or b) the licence changes after release as OER? Should this be covered by a notice and take down policy? Does every project require such a policy?

20. 20 ? Your questions

21. 21