Copyright
The OER (Open Educational Resources) infoKit includes a section on legal aspects of OERs and also on IPR.
One of the key legal issues that will impact on the development and use of a repository is copyright. Copyright protects the expression of ideas when fixed within an original work. Works can be in any medium, for example, literary, dramatic, musical, artistic, and all such formats may be included within a repository. Copyright allows the rights holder to define if and how others can use their their work. This therefore affects how a repository's contents can be used and distributed. Copyright is often perceived as being complicated and as presenting barriers to using the work of others.
Learning and teaching materials often include 'third party' content (content produced and owned by someone else). When these materials are deposited in repositories the provenance of the content needs to be identified and cleared for appropriate use which can be very difficult and time consuming. This can be the first time that learning and teaching materials have been through this process and can present a steep learning curve for academic staff, who may need a lot of support. Many of the final reports from JISC/HE Academy UKOER pilot programme projects, which sought to encourage open release of existing content, found that this process was too costly. They suggested that open release should be incorporated into newly developed learning and teaching materials, rather than applied to existing content. These projects produced a wide range of materials around Copyright that will be of use to any repository manager who is considering open access for learning and teaching materials.
The sections below give a brief introduction to the copyright issues to be considered within the more common types of work deposited within a repository. Further information about copyright and copyright in regards to repositories can be found at the Intellectual Property Office and the JISC Legal Information Service.
Journal articles
The first copyright of a literary work, such as a journal article, is held by the author(s) of that work. However, when an article is published, typically the author assigns copyright, or gives a copyright licence to the publisher. Although the majority of publishers and journals allow authors to subsequently archive that work under certain conditions, other publishers are more restrictive. Depending on the particular agreement that is signed, the author retains more or less rights to use the article. Some agreements forbid the author from photocopying the article, using it in teaching, or putting it online. Other agreements are more liberal and allow the author to retain rights to use the article as he or she wishes.
The SHERPA service RoMEO lists journal publishers and their associated copyright agreements, detailing how the publisher will generally allow an author to use a work on the web and where different, within a repository. In most cases a differentiation is made between a pre-print and a post-print of a work. These terms are often used to describe successive stages in the development of an article. Unfortunately, the terms are used to mean different things by different people and this can cause some confusion and ambiguity.
Pre-prints vs post-prints
One usage of the term pre-print is to describe the first draft of an article, before peer-review, even before any contact with a publisher. This use is common amongst academics, for who the key modification of an article is the peer-review process.
Another use of the term pre-print is for the finished article, reviewed and amended, ready and accepted for publication, but separate from the version that is typeset or formatted by the publisher. This use is more common amongst publishers, for whom the final and significant stage of modification to an article is the arrangement of the material for putting to print.
Within the RoMEO listing however, pre-prints are characterised as being the version of the paper before peer review; and post-prints as being the version of the paper after peer-review, with revisions having been made. This means that in terms of content, post-prints are the article 'as published'. However, in terms of appearance this might not be the same as the published article, as publishers often reserve for themselves rights in their own arrangement of typesetting and formatting.
Some publishers will insist that authors use the publisher-generated PDF - often because the publishers want their material to be seen as a professionally produced PDF that fits with their own house-style. However, such a formatted file is the copyright of the publisher and cannot be used without explicit permission. Typically, this means that the author cannot use the publisher-generated PDF file, but must make their own PDF version of the content for submission to a repository, or consider submitting a version in another format.
Requesting to use published material
An example of such a template is available from SHERPA.
A request template can be used to form a letter to a publisher asking for permission to mount material on a repository on behalf of an academic author. Some publishers insist on the author writing or emailing them directly to request permission to mount copies in a repository. In such cases, it may be useful to provide the author with an alternate template to help them construct his or her request.
Books & Book chapters
Permissions normally differ for the inclusion of book content from that of journal articles even within the same publishing office, and RoMEO does not cover book copyright agreements. Therefore it is best to review the copyright transfer agreements signed by the author or any equivalents available on the publisher's website, with the author contacting publishers directly if necessary.
Assisting authors with publishing agreements
The Copyright Toolbox developed through JISC, SURF and RoMEO research provides advice for both authors and publishers on publishing agreements and licences. The aim of the resource is to assist authors and publishers to achieve a balance between granting maximum access to a journal article and financial compensation for the publication by the publisher of the article. Within the toolbox you can find both an introduction to publishing agreements and licences as well as sample wording for both document types. In particular, there is a Licence to Publish which any author can send to a publisher to consider instead of the publisher's own agreement, to make clear the author's desire to put a version in their institutional repository.
Multimedia
There can be many layers of copyright within multimedia deposits as well as other legal considerations such as performer's rights and data protection. As such, each deposit should be considered on a case by case basis to ensure all aspects have been covered. Materials produced for learning and teaching are often owned by the institution, although teachers may not be aware of this. Clarification of ownership should be made clear in staff contracts. Many learning and teaching materials contain a variety of formats and some are 'packaged' in some way to provide a pedagogic context. What is considered as one resource in terms of deposit may actually contain materials owned by several different people. For example one powerpoint presentation could contain still images, sound files, and textual content from a range of authors.
Still images
As with an original literary work, the first copyright of an original still image lies with its creator. For example, in the case of a drawing, the first copyright will be held by the artist; in the case of a photograph, first copyright will be held by the photographer. However, in the case of photographs, care needs to be taken that the image does not include a work of somebody else's copyright, also known as third party copyright, i.e. the photograph is of somebody else's painting or sculpture that is not on public display.
Consideration of data protection, obscenity and related areas including the protection of children, and libel may also be relevant laws that need to be considered before an image is deposited and distributed via a repository.
Moving images
Within the Copyright, Designs and Patents Act 1988 'any medium from which a moving image may by any means be produced' is considered as a 'Film'. Included within this category therefore, are videos, animations and even computer game footage. Within films the first copyright is held by the Producer, and if he or she is a separate individual, the Principal Director. However, copyright may also be held within the story that is being performed, any dialogue that is performed, and/or any music or sound played or performed. Performers' rights may also need to be considered.
Sound recordings
The copyright considerations with regard to sound recordings (which can include music, speech, or song) are fairly similar to those of films. The first copyright is held by the Producer, yet other copyright can be held in any music performed, any lyrics performed or any prose recited. Performers' rights may also need to be taken into consideration.
Performers' Rights
Repositories handling audio visual and learning materials can find a wealth of policy advice and templates in the Strategic Content Alliance IPR Toolkit.
If a work contains a performance (which can include acting, playing an instrument, dance, song or mime) the individual giving that performance has rights within the recording, filming and distribution of that performance. A performer has to give their express permission for the performance to be either filmed or recorded in the first instance; and where a performance has been filmed or recorded with permission, further permission has to be granted by the performer for that recording to be copied or distributed. A performer's rights are infringed by anybody who carries out any of the above acts without the performer's consent. A performer's rights are also infringed by anybody who plays or shows an illicit recording of a performance to the public; or by anybody who distributes an illicit recording to the public. Therefore, if a performance item is deposited and made accessible via a repository, and it is known that the performers' permissions were not sought to either record or show the performance, whoever is responsible for the repository will be liable to an infringement along with those who made and copied the performance recording in the first place. For information on performers' rights in relation to recorded lectures please see the JISC Legal guidance.
Theses and Dissertations: Fair dealing and third party copyright
Specific advice on open access to theses and dissertations is available from the EThoS Toolkit.
There are certain instances of 'fair dealing' where third party copyrighted material can be used without the rights holder's permission. The two instances which are most significant within academic work are use for: non-commercial research and private study; and criticism, review and reporting current events. Fair dealing has no strict definition but can be assessed by considering the economic impact to the copyright owner by the use of their work in that particular way. If there is a low or minimal economic impact to the copyright holder, it can be considered as fair dealing. Whenever copyrighted material is used in these instances it is necessary for the owner of the copyright to be sufficiently acknowledged.
It can be quite common within work created by students, such as theses or dissertations, for third party copyrighted materials to be included without the copyright holder's permission under fair dealing. However, depositing and distributing a work which includes such copyrighted material via the repository could be considered beyond fair dealing and therefore, would infringe that personcopyright. If a repository's collection policy is looking to include theses and dissertations, how to accommodate instances of third party copyright within them needs to be considered before these works can be included and accessed. Ideally, any new students whose work could potentially be included within the repository should receive copyright training and should actively seek to obtain permission for any included works. In some instances it can be possible to obtain permission to use a copyrighted work retrospectively. However, trying to obtain permission at a later date can be difficult, particularly where contact details are no longer available or accurate.
