For JISC and JISC Collections it was always meant to mean a very active engagement with that content, disaggregating, copying, pasting, embedding, adapting and generally taking parts of the content and recontextualising it to create new learning materials.

We knew that from a rights clearance perspective this could be a tall order - would rights holders grant us a very wide range of permissions? What about moral rights? etc.

But the whole idea was to test the issues in a real world environment, work through them and make recommendations for the future.

As it turns out though this isn’t the same meaning as many as the projects have. For them the reuse is in the adoption of existing content and reusing that same content in a different context. As such the content remains the same, but the context in which it is taught is repurposed. This means that they are linking to content, rather than downloading it and adapting the existing content or taking only a part of it and including that in a new learning material.

Now it would appear that this is much closer to standard academic practice than JISC’s interpretation, and in many ways reflects teaching practice as it has always been.

Copyright has been a contributing factor to these practices since educators will wish to avoid any risk of contravening copyright.

If this is the case how then can we overcome it and at the very least encourage educators to make more use of third party content in the development of new learning materials?  It seems to me that thinking practically there are two options:

1. Make sure that when content is made available on the web there is clear information attached to it about what can be done in an educational context - Creative Commons provides an example of how this can be achieved - not necessarily through the adoption of CC licences (though this will be part of it) - but through the clear presentation of information on what can and can’t be done.

 2. Have much greater awareness of/availability of the in house assistance available to educators in the identification of suitable content, the permissions that content has associated with it, what permissions need to be cleared and finally whether or not it is going to be practical or achievable to clear those rights in the required time frames and costs.

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.

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.

“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.

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.

First things first what is CASPER?
CASPER stands for Copyright Advice and Support Project for Electronic Resources

The project is being funded by JISC and managed by JISC Collections to provide advice and support in the clearance of copyright for e-Learning projects funded as part of the Re-Use of Learning Content call (RePRODUCE) funded by the JISC e-Learning Programme ).

CASPER will be helping the 19 projects funded as part of RepRoduce to clear the rights in the content they will be using and re-using so that it can be made available to e-learning repositories such as Jorum. To do this CASPER will be pulling together existing best practice in the clearance of rights generally and in e-learning materials in particular from sources such as HEFCE, the JISC IPR Consultants, the TRustDR project, Richard McCracken, the MLA and any other sources we can find and that are of use. We’ll be directing projects to that information, explaining it to them and helping them act upon and implement it in the context of their own projects.

Where necessary CASPER will create new materials in support of this, adapt existing materials so that they meet the needs of the projects or where it makes sense undertake the clearance ourselves, but the emphasis is on building capacity in the projects themselves and by disseminating the experiences of those projects the community more generally.

Capturing and documenting the experience of the projects is a key part of the CASPER project. Whilst we’ll be hoping for as much success as possible in the clearance of rights, the failure to clear rights can also be instructive. For example, how did publicly funded organisations compare with commerical organisations? How did different types of media compare? Why did some rights holders refuse to clear rights? What approaches worked in different situations? How much time and effort did it really take? etc.

Based on these experiences we’ll be offering recommendations to JISC and the wider community on the steps to take to maximise the chances of clearing rights, and thinking about the central support that organisations like the JISC can offer to help institutions embarking on rights clearance for the e-learning materials.