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.
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.
RePRODUCE start up meeting
The Project start up meeting was held at Aston University Business School last month.
It was our first time meeting the projects and our first official event as CASPER. It would be our chance to introduce ourselves, explain the aims and objectives of the project, discuss the work that CASPER would be doing both with and for them, what they need to do and more than anything else emphasise the importance of early engagement with rights management and clearance as an essential part of a successfully managed project.
Before the meeting I wasn’t sure what experience the projects would have in rights clearance. Would we discover that they were all copyright experts with years of experience, who were at best disinterested and at worst offended by the perceived need to provide them with a dedicated team to help them?
Fortunately, we were met by an extremely interested and engaged audience with a wide mix of rights experience, but few of whom, in my view, felt that they couldn’t benefit in some way from further assistance. In fact we had a much longer discussion than I anticipated about what all manner of issues related to rights and rights clearance.
The key message from a wider perspective was that although there are clearly issues with the understanding of copyright and IPR in the education community, this wasn’t due to a cavalier approach to those rights. Rather more that there are misconceptions, misperceptions and misunderstandings about what is and isn’t allowed - after all an understanding of copyright isn’t a prerequisite for academics.
My favourite question on the day was, ‘Can you tell us who we should avoid?’. I suppose that for the sake of an easy life I could have given a list of the formats and rights holders that I think will prove to be the most challenging. However, I resisted the urge and not just because it would have been very unprofessional!
My primary reason was that right from the start I have been concerned that CASPER didn’t put projects off trying to clear the rights in potentially challenging materials. Yes, it is important that they take rights clearance seriously and are aware of the potential consequences of failing to clear rights properly. But it would be a failure for us if all of the projects engaged in some form of self censorship out of fear of making a mistake.
Whether we succeed or fail in clearing certain rights, we will learn most from an ambitious approach.
My second reason was based on my experiences in the licensing of online resources through our work for JISC Collections. Much of that work has involved the negotiation of terms of use that allow teaching staff in universities and colleges to integrate parts of online resources into their teaching and learning materials. Over the past couple of years publisher acceptance of these clauses has increased considerably. Now the challenges that we face are more concerned with the subsequent deposit, preservation and sharing of these learning materials, not just in national repositories such as JORUM, but also institutional VLEs.
Many publishers and content owners appear to fear the loss of control over their content that deposition in a VLE of repository implies, and whilst we in JISC Collections have gone to great pains to try and address these concerns we’ve never quite managed to over come the question, ‘But what do they want to do with it?’.
The CASPER project presents JISC Collections with a perfect opportunity to demonstrate to publishers exactly what academic staff want to do with their content and hopefully this will mean that publishers will be willing to grant JISC Collections more rights in the future.
My third and final reason was that I’m not sure that it is as easy as that to understand when a content owner will and won’t be happy to clear rights for re-use. I think that it will probably be more case by case, dependent on the quantity of material, the format, the proposed use and how that relates to the core business if the rights owner. My personal feeling is that the closer the request for clearance falls to the perceived business interests of the rights owner, the harder it will be to clear those rights.