4.2 Exercises from video

Discussion

Before you decide whether to keep or ditch the images originally chosen, you should consider the following:

• You would have to expend (perhaps a lot) more time looking to replace images that already have been deemed suitable.
• While the course is being sold, it is still likely not to be considered a wholly commercial, profit-making exploitation if any income is being ploughed back into the educational activities of the institution.  Therefore this can be explained to the rights owners. In the majority of cases, this is likely to result in a permission with no further payment – or a lower fee, which may be more time and cost efficient than starting from scratch.
• Ensure your records facilitate the reclearing of the images.

In order to facilitate the possibility of priorities changing during development of a course or afterwards, please ensure you keep records of the sources of your images. This will mean you can easily revisit those records to check on rights owners and find email addresses, etc. If you are unable to locate a rights owner after conducting a reasonable search, you may decide to carry on using an image on a risk level acceptable to your institution. If any rights owners get in touch, you can negotiate a suitable fee with all the information to hand (or in a place agreed from beginning). In exceptional circumstances this may result in the removal of an image – but that should only happen in exceptional circumstances, particularly if the images originally chosen are non-contentious.

If after due consideration you decide to reselect the images, then that is fine, providing you have considered all your options in relation to keeping the images or reselecting them.

Discussion

This is where you come across copyright issues interacting with ethics. It is likely that your institution has an ethics policy in relation to using children’s images online that may provide some additional guidelines. Some areas of consideration are:

• Does copyright in the photo rest with the colleague? It will if the taking of it does not fall within their terms and conditions of employment. If that is the case then it is good practice to get a formal permission agreement for use by your institution. An email with the correct wording may suffice.
• Did the colleague obtain permission from the children’s parents or guardians before the photographs were taken? Was it explained to the parents or guardians how the images may be used? If the colleague just took the photographs on holiday without permission, then this process may deem them unusable by your institution.
• Are the images of the children suitable? You should have a ‘suitability gauge’ for your project. You should be wary of using full face, close-up images, or images where children are perhaps posing or standing in a way that may be inappropriate to an open or wide audience.  Seek advice if you are unsure (although being unsure may be an alert to choose something else).

Discussion

Every business or institution should operate within an acceptable level of risk. To try to operate within a zero-risk policy is not practical and will make you feel that you are not taking your business forward. However, taking risks must be enshrined within good practice guidelines. If you don’t have good practice and are taking risks, then you and your institution are just being sloppy and unprofessional – and may be exposing the business to potential legal ramifications. Before you use a third party work without formal permission, you should consider the following:

• Did you contact the rights owner a few times without response?
• Did you check before your second chase-up that you had the right address? Did you try and find a telephone number for the rights owner?
• Did you alert the editor/team that if a response is not received, that the work should not be altered beyond some basic editorial changes? Altering an original work beyond this may impact on the integrity of the work and may lead the author to claim that their moral rights (Section 80 of the Act)  have been infringed.
• If the editor/team did not agree with the author’s comments, have they considered doing their own commentary to the paper, addressing the areas of disagreement? This needs to be done professionally and without malice or any defamatory remarks towards the author.  (That may take you into another area of law – defamation!)
• Is there any other reason that would prevent you using the work without formal permission?

If after applying those considerations you still have not heard back from the author, you may be comfortable in using the work (with no alterations, other than minor editorial ones) on an ‘await claim’ basis. This may be an acceptable risk for your institution. If your institution does not have a risk policy to use third party works in this way, then you need to build that into your planning to ensure that you alert the team/author in good time so that an alternative can be sourced and cleared. Please ensure you credit all rights owners whether you have had formal permission or not. 

Discussion

Creative Commons licences are designed to work internationally. Rights owners may choose a licence that applies to the jurisdiction (territory) where they reside. This makes it easier to apply the licence in the home jurisdiction, although this will not prevent rights owners from seeking remedy (enforcement) abroad should that become a necessity. The CC licence, irrespective of jurisdictional licence chosen, works internationally, and refers to where the content is being used.

Discussion

No. Creative Commons only provides licences for copyright works that are protected under copyright law; logos and trademarks have their own separate protection under trademark law. However, if you are not sure, it is fair to assume that many users may be similarly confused. You should therefore clarify and reinforce this through your site’s terms and conditions, and state quite clearly that your logos and trademarks are not part of the CC licensing. You may want to consider how your trademarks may be used within the licensed content – for example, only in unaltered content?

Discussion

You should consider this when developing the content for your OER or Creative Commons licensing. You are not confined to one type of licence; you can choose whichever is appropriate to your content. For example, while promoting the sharing and developing of content, there may be some content that is not appropriate for a CC sharealike. It may be sensitive (but not restrictive) and contain issues that your institution considers worth sharing.  You therefore may be of the view that this content needs to be shared but in context only, and a non-commercial non-derivative licence may be appropriate. The main point is to widen your thought processes in relation to licensing to ensure that your content reaches the intended audiences in ways that retain the integrity of the content and your institution.