Knowing what you can do with content from university web sites
It is recognised that though the licensing of electronic resources is essential for many resources, the time and cost involved in the negotiations and legal work, can in the case of low cost resources mean more money is being spent on lawyers than the content itself.
As a result NISO (the American National Information Standards Organisation) has been undertaking work on SERU (Shared E-Resource Understanding). The idea behind SERU is that publishers and libraries each agree to abide by a common set of terms and conditions for the use of electronic resources. The idea is that if a publisher says that use of a resource is based SERU and the library is happy with that then there is no need to get involved in negotiations at all (other than the price) and both sides can save themselves a lot of bother.
What does this have to do with CASPER? Well, whilst visiting projects involved in RepRODUCE it has become clear that many of the materials that they wish to repurpose and reuse are from other universities. Because these materials are often freely viewable on the university web site there is an assumption that it can be reused or repurposed, however, in most cases the university web site copyright statement, or terms of use are silent on the issue of use for educational purposes or forbid exactly the sort of use that is required by another institution.
Now I don’t know whether this is by accident or design, but I suspect it is because it just hasn’t been thought through and the copyright statement was the last thing on the minds of those developing the web sites. It may also demonstrate that institutions don’t necessarily know exactly what is being put up on their web sites.
The effect of all this is that it makes it very unclear what can and can’t be done with content that one can freely view. Might the SERU approach be applicable then amongst universities? A simple and consistent set of guidelines that would define the minimum of what another institution can do with content on specific pages.
An alternative to this might be to use Creative Commons licences, my only query with this would be that with currently six versions of the creative commons licence in the UK, might one end up with further confusion about what one could and couldn’t do?
The main point is this though - far greater consideration and consistency is needed about the uses that universities allow staff at other universities (and indeed within their own institutions) to make of the content that is available on their web sites.
The RepRODUCE projects will by and large be spending most of their time clearing the rights in content from other universities and greater consistency could save everyone a good deal of time and money.
Rights management and JORUM
All of the RepRODUCE projects are required to deposit the learning objects generated as outputs of their projects in JORUM.
This is important as a way of guaranteeing access for UK HE and FE to the outputs of publicly funded projects once those projects have ended and of populating Jorum.
Currently JORUM requires deposition in perpetuity and I have become increasingly aware during the opening weeks of the JISC CASPER project that this can pose problems to those university staff who may be otherwise supportive of including their materials in Jorum.
Why? Well at least two issues have come to my attention:
1. For those that routinely refresh their materials on a regular basis, deposition in perpetuity means that materials created in the past that are now out of date or even wrong may re-surface and be potentially detrimental to the reputation of those involved in their creation. Now this may be an unfounded concern (as was pointed out to me, academics don’t seek to have all the old editions of their books pulped), it is nevertheless a concern that will makes some stop and think before depositing their materials in JORUM.
2. If one wants to include 3rd party materials in ones learning objects then clearing the rights in perpetuity is going to either be much harder work, or maybe impossible for some media format such as film where the granting of perpetual rights is uncommon. This can two potential consequences, either there is a form of self-censorship where all but the easiest content to clear is included in learning materials, or one simply avoids deposition in JORUM.
Could Jorum do more to overcome these issues and encourage engagement and deposition by including some form of rights management/tracking tool that would allow for the routine weeding of the repository for content that is coming up to the end of its pre-agreed lifespan?
If a depositor could review and confirm the ongoing inclusion of their learning materials in JORUM after 3, 5, 10 years - might this encourage them to deposit more materials?
The same is true of 3rd party content, if one could clear rights for limited periods of time, would it make it easier to clear the rights in that content in the first place and as a result include more 3rd party content in learning materials going into JORUM?
If this process could be automated so that an automatic notification went to the original depositor, and they or their institution had responsibility for the clearance it need not dramatically add to the administrative burden on JORUM and could encourage a more sustained engagement with the repository over the long term.
Asking the question
We visited JISCLegal recently to discuss JISC CASPER, rights management and rights clearance. It was a very helpful meeting, that time and again came back to one simple fact about rights clearance.
“You will always need to ask the question, ‘Who owns this content and have they granted me permission to use that content this way?’”
Now whilst the actual mechanics of identifying different layers of rights within a work, identifying the rights holder and then seeking rights clearance might be complicated, time consuming, onerous and ultimately the last thing that anyone developing e-learning materials really wants to get involved in, keeping those questions in mind should help projects at least stay on the right side of the law.
The meeting also highlighted the importance of policy and decision making by the projects and the institutions themselves. JISCLegal often find themselves in the position of being asked to make a decision for the institution. But this isn’t their role or remit. They are there to offer advice, highlight the issues and point the institution in the right direction.
I wonder whether we will find ourselves in a similar position. JISC CASPER will be doing all that it can to support the projects and steer them in the right direction, but when dealing with rights there will be times - consortia arrangements, orphan works to name but two - when the projects and their institutions will have to make a decision about what they are happy to agree to and the level risk their institutions are happy to take on.
These are decisions that JISC CASPER can’t make for the projects and at this point it will be important for all of the projects to turn their own institutions for the final go ahead.
Generally, it will be important for the RepRODUCE projects to find out what support their institution can offer them, not only those people who can sign off decision based on an analysis of risk and judgement, but also those people responsible for rights clearance. It may be that the library is not the only source of such support, there may be other departments such as research and innovation, who will be used to dealing with IPR and can offer support.
This raises a further question about the degree of expertise available within an institution in these areas, or rather the degree to which an institution acknowledges and communicates the importance of rights across the whole institution its staff and students.
The JISC Legal team also re-iterated a number of other important points that we will and have been making to the projects as we meet them.
1. Make one member of the team responsible for rights management and clearance. They should maintain all of the documentation that the projects gather as they clear rights and be responsible for the arrangements regarding its subsequent curation and maintenance.
2. Some rights holders will require a payment to clear rights and the projects will need to put aside a budget for rights clearance.
3. Rights clearance rakes time - make sure that you plan early and set aside plenty of time for the process.
4. Have back up options for content in case you can’t clear the rights in specific pieces
5. If sourcing content from content sharing sites such as YouTube and Flickr be aware that the material may not have had rights cleared appropriately or even at all.
6. Check your institutions formal policies with regard to copyright.