4 Copyright and OER

I assume that you are reading this course because you would like to create a course similar to the materials that you can find on the OpenLearn website. You therefore have a teaching purpose and are particularly interested in the use of online tuition. Hopefully you are also keen to share your teaching materials with others. But why bother creating a new OER? Surely there is so much material already available for free on the web anyway!

I would answer this in a number of ways. First: quality. You want to know that the materials that you are using yourself, or obtaining for use for others, are of high integrity; accurate and well constructed.

Second: copyright. While the copyright rules for many countries may be similar, any advice or comments given here is derived from and in the context of the UK Copyright, Designs and Patents Act 1988 (‘the Act’). 

You may be exposing yourself or your institution to legal challenge if you use third party copyright material without permission. If you use YouTube for audio or video elements, or Flickr to store, say, a collage of pictures in a Sgt. Pepper-style line-up, they will remove the material from their websites if they receive a complaint. 

The use of small extracts or amounts of third party copyright material in your OER is generally acceptable without attracting complaints from copyright holders. In the UK this is usually referred to as ‘insubstantial’. Other countries, such as the USA, may use the term ‘fair use’ and provide a wider use provision within their territories. Those that are not familiar with copyright, or lack experience in working with it, may find it difficult to judge how little to use without permission. Using insubstantial parts of works needs to be decided with both a quantitative and qualitative gauge. The following may help:

• Use no more than around 400 words from a large book (quantitative).
• Do not take the substance of any work. For example, if you’re taking quotes from a whodunit novel, do not take the part that reveals the culprit – even if only a few words (qualitative).
• Poetry is considered very qualitative, so use caution and do not take more than two lines without permission without seeking advice from someone with copyright knowledge and experience in this area.
• Music is also considered qualitative, so use caution, particularly with popular or well-known pieces – even if you’re only using a couple of  notes. Seek advice if unsure.
• Footage (film/moving images) is considered qualitative – so again, use caution. Footage is charged within the industry on a per second basis (frequently with 30-second and one-minute minimums being imposed for charging), so three or four seconds could be seen as a maximum insubstantial part.

Those that are more experienced in dealing with permissions and copyright may be able to apply some flexibility to the guidelines above, depending on each individual piece of content. There are other ‘fair dealing’ provisions in the Act (Sections 29–30) that permits use (as a defence) of copyright works, or parts, without seeking permission. 

Activity 7

The following training session video explains the basics of copyright and explores some issues surrounding copyright and Creative Commons licences.

Show transcript|Hide transcript

Transcript: Training video

SPEAKER 1:

All right. For this afternoon’s session, just for an hour, we’re going to just do a reflective activity. You’ve been talked at a lot and there’s a lot of projects bombarded at you, so this is an opportunity now to really just have a look at some of those projects. And also look at other projects from your point of view in terms of what you want to do and what you’re doing at your institutions, and what your institutions are doing. So we’ll probably just have a look at some different projects. You’ll just have to search around for yourselves, or within your discipline groups if you want to. I know there’s a lot of librarians as well here. So we can see one distinct group we’ve got here.

But just thinking about some of the things we got on the screen there. I mean there could be an element of sourcing potential resources if that’s part of what you’re thinking of doing. Issues, barriers, motivations, positive outcomes, negative outcomes and also maybe just some projects you’ll find interesting or there may be some on the list that we haven’t shown and that you know about or come across that you like to share with us.

I’ve put – if you follow the link that’s on the screen there, I’ve put a version of this PowerPoint as a Google Doc there. And if we can just go to that. You’ll have a list of a series of websites there that I’ve just quickly put together around – you’ll see the score – the top two score websites. The first one is, basically, a list of different case studies and projects that are going on around, mainly, Europe. The second one down is our fellowship programme. Our Fellows are from English universities. Looking at their research products there. Quite a number of those are finished so you’ll be able to find case studies and publications on those there. And then we have UNESCO, OER Africa, some of the things Andy mentioned, links to the three phases of JISC OER programme as well as the HEA and OER commons.

And on the next page I’ve just put together a list of everything that Andy mentioned. So that’s all the projects that Andy mentioned there. Some of them will be in all the other lists that you’ll see around there, but if there’s something in particular that interested you that Andy was talking about, you should be able to find in that list. So what was the content that you were looking for that you couldn’t find anything?

SPEAKER 2:

Care worker role.

SPEAKER 1:

From care worker role. That’s interesting because that’s probably quite likely that from that point of view I imagine it’s quite –

SPEAKER 2:

There should be heaps of –

SPEAKER 1:

– vulnerable people involved in that stuff.

SPEAKER 2:

There should be heaps of stuff.

SPEAKER 1:

I imagine people probably may be scared about the licencing and opening content up in that sense. Is there stuff on the internet that is available that is not open access around care work?

SPEAKER 2:

There’s the company deductions standards so if you wanted to take up a care workers role then there is stuff around that but that’s obviously from somebody’s published material.

SPEAKER 1:

Yeah. I think that’s quite interesting because that’s from, obviously, the idea [INAUDIBLE] and then how would you increase that work that’s been identified that the arts where not very well funded in terms of the OER area. But I think that some of the projects that we’ve been involved in, particularly some of our fellows, has actually started to change that. And people want to look at them when – or actually it’s sometimes it just needs those people to say please start putting some stuff, and what are the issues around that and how do we address it and how can we actually make sure there is content out there. Interesting.

JONATHAN:

OK. Welcome back everyone. It’s been really very easy going up until now. But now we get to the serious part of today. Come on, admit it. It’s been a dodle, hasn’t it? But, anyway, we now get to the nitty gritty of rights. Everything to do with rights. And no one knows more about that than Bernie Attwell, who you’ll get to hear from shortly. But we have added value in the form of Alma Hayles who’s director of intellectual property. Is that right? Here in the university. So she heads the unit that looks after rights management across the university, across all courses, everything. So, without more ado, over to you.

BERNIE:

OK.

JONATHAN:

Bernie and Alma.

BERNIE:

Hi. Good afternoon. My name is Bernie Attwell. I hope you enjoy this afternoon’s session. I will say the time will just go very quick because copyright is such an interesting subject. And I know we’re going to talk about Creative Commons, and I’ve got a few exercises to get you thinking about CreativeCommons and how you might want to use Creative Commons within your work. However, we’ve got to frame that within copyright. Because Creative Commons is not a religious movement or anything like that. It’s basically a licence. And people get so het up about it. And I think it’s useful for you to learn a wee bit about copyright.

Now, I do assume no knowledge. That’s why I’ve got the low tech board here to sort of engage you. Today you’ll find this session a wee bit rushed. But please ask as many questions as you want. Alma and I do a course within the OU and outside the OU that lasts all day, to do with copyright and rights, the whole spectrum. So we’ve got a very short time to sort of just try and engage you, keep you awake, and get onto the interesting bits.

So while I’m doing that– also can I bring to your attention the– you probably have it on your programme about the reflection tool. And if there’s anything else you need as we go along in order to make this really work for you then please fire questions. As Jonathan said, you’ve got two of us this afternoon, and make the most of it. Because Alma, head of intellectual property, also has a wealth of experience in dealing with rights and copyright for the whole university and with the wee hours.

OK. Here now we’re going to create a birthday card. A birthday card even for those people that do not celebrate birthdays or anything, it’s just for the purposes of introducing copyright. And I need you all, with your most creative minds, to imagine this is our birthday card. And we’ll have to an inside and outside. And this is the front of our birthday card. And then we’ll go inside. But, here, can you just give me some ideas as to what you would like on our birthday card at the front of it.

SPEAKER 3:

Balloons.

BERNIE:

Balloons. OK. Balloons. You can see the artwork isn’t that great. OK. That’s the balloons. Sometimes I have to indicate that it is balloons.

SPEAKER 4:

Footballer.

BERNIE:

A footballer. Do you mean a photograph? An image? Photograph of a footballer, very well known?

SPEAKER 4:

I think an illustration of a footballer who looks like –

BERNIE:

Looks like.

SPEAKER 4:

– a famous one.

BERNIE:

When you say an illustration do you mean a cartoon type character?

SPEAKER 4:

Yeah.

BERNIE:

Yeah?

SPEAKER 4:

Probably, yeah.

BERNIE:

But looking – have characteristics of somebody well known. Like if it was Gazza you’d have them crying. Or somebody –

SPEAKER 4:

Yeah.

BERNIE:

More up –

SPEAKER 4:

Bernie you’d look like [INAUDIBLE].

BERNIE:

Well –

SPEAKER 4:

That’s [INAUDIBLE].

BERNIE:

To be honest they’re all going to look –

SPEAKER 5:

He generally is.

BERNIE:

OK. We’ve got footballer. Let me – but it’s an illustration. We’ll put emphasis on Rooney’s hair. Shall we? Let these be shorts. There’s a ball.

SPEAKER 3:

So for the purposes of the card –

BERNIE:

Yeah?

SPEAKER 3:

Are we saying that that’s been drawn by you or are we saying that you’ve taken that from Flickr?

BERNIE:

We could have taken it from Flickr. Couldn’t we?

SPEAKER 4:

How about if it’s tracing of a photo on Flickr?

ALMA:

Excellent.

SPEAKER 4:

[INAUDIBLE]

ALMA:

[INAUDIBLE]

BERNIE:

OK. We’re starting to sort of get our target audience coming up here. It’s a footballer and balloons probably, maybe more male oriented, is it. I don’t know. OK. Give us something else then.

SPEAKER 6:

Some wording maybe.

BERNIE:

Yeah. On the front. Like –

SPEAKER 6:

Happy birthday.

BERNIE:

– happy birthday.

SPEAKER 4:

And a number.

SPEAKER 6:

And we could –

SPEAKER 4:

You are, number.

BERNIE:

You are here somewhere?

SPEAKER 4:

No, you’re –

SPEAKER 6:

The number.

SPEAKER 4:

– the age.

SPEAKER 7:

You’re number.

BERNIE:

Oh, you want the – OK. What age would we have?

SPEAKER 8:

12.

BERNIE:

OK.

SPEAKER 7:

[INAUDIBLE]

SPEAKER 8:

Even if the footballers on the front.

BERNIE:

12. Depend on them but that could sort of be changeable, can’t it?

SPEAKER 3:

What about a spaceship?

BERNIE:

Spaceship. Yeah.

SPEAKER 3:

Yeah, spaceship.

BERNIE:

Spaceship. Right. One of them NASA images do you think?

SPEAKER 3:

Yeah. Go one and go for it.

[INTERPOSING VOICES]

BERNIE:

How do we draw a spaceship?

[INTERPOSING VOICES]

BERNIE:

Well, I can see in me head, but it’s not quite coming out here.

ALMA:

Not a big NASA fan, huh?

BERNIE:

I am actually – moon rocks.

ALMA:

Like moon rocks.

BERNIE:

OK. OK. Maybe that’s enough for inside – or outside rather. The insides the most interesting part isn’t it? You have this to grab somebody but you always go inside to look what’s inside, don’t ya? Before you buy it, don’t ya? Are we happy with this?

SPEAKER 2:

Yes.

BERNIE:

All right. Yeah? Yeah. I think it is. OK. Let’s go inside now. What we can do here is we need a verse, don’t we? Maybe we can sort of collaborate on a verse. Maybe somebody can give me one line and then we can get about four lines between us and that might be useful. So somebody give me one line.

SPEAKER 4:

On this special day.

BERNIE:

Yeah?

SPEAKER 8:

Hope everything is going your way.

BERNIE:

You can tell you work at a university.

BERNIE:

Two more lines, yeah? One more, two more. Doesn’t have to rhyme. We can – we are university people. We can be unrhyming. Anything.

SPEAKER 4:

Just to remind you it’s statistically unlikely that you will become a professional footballer.

BERNIE:

You’re not a school teacher are you?

[INTERPOSING VOICES]

BERNIE:

That it is very unlikely that you will?

SPEAKER 8:

Become a professional footballer.

SPEAKER 4:

I used to coach football.

BERNIE:

I notice he said used to. OK. We’ve got that. On this special day, hope everything’s going your way. Just to remind you it’s very unlikely that you will become a professional footballer. Maybe we could finish with a one more line that’s a wee bit more uplifting.

SPEAKER 4:

Don’t give up, or something.

SPEAKER 5:

You can reach the stars.

[INTERPOSING VOICES]

BERNIE:

Shall I put that? There’s always brain surgery. What do you want?

SPEAKER 7:

That you can reach the stars. That we said.

[INTERPOSING VOICES]

BERNIE:

But you can still play. OK. That’s the verse done with. Now what else do we want in our card?

SPEAKER 8:

Could we have – when you open it play a tune? Play happy birthday when you open it.

BERNIE:

Happy birthday tunes. OK, we’ll do that.

SPEAKER 8:

Little bit much, indeed.

[INTERPOSING VOICES]

BERNIE:

That’s a good idea. That went – [SINGING MUSIC NOTES] Yeah?

SPEAKER 4:

A Japanese voice singing it.

[INTERPOSING VOICES]

BERNIE:

Match of the Day tune song. Is it – it’s just a sort of instrumental isn’t it? Yeah? Yeah? Happy with that? You don’t want any words going in there or anything?

SPEAKER 4:

We have ‘We Are The Champions’. [INAUDIBLE]

BERNIE:

Your hoping there’s so much music being played that the poor chap won’t read the verse? Are we happy with [SINGING MUSIC NOTES]? Yeah? Yeah. So what else do we want on our inside page? We’ve got the verse and we’ve got the tune. And –

SPEAKER 4:

We have a badge in there.

BERNIE:

A badge?

SPEAKER 4:

A badge. 12 years old. Now you are 12.

BERNIE:

That’s just a thing that they can take off and –?

SPEAKER 4:

Yes.

SPEAKER 5:

This is a rather expensive card.

BERNIE:

Yeah.

SPEAKER 7:

Maybe a few stars.

BERNIE:

Pardon?

SPEAKER 7:

A few stars.

BERNIE:

A star? Stars?

SPEAKER 7:

Yes.

SPEAKER 4:

[INAUDIBLE]

BERNIE:

Stars. Yeah. Stars like that. Any ideas on that? OK. A gold star. Anything else? Are we happy with our card? Yeah? Because we have to get on. OK. As quickly as that we have created a copyright work. We’ve created a copyright work that gets protected on the Copyright Designs and Patent Act UK which is this. Which is my Bible. Right here. Any advice or any copyright questions you ask me today is either comes straight from this or my knowledge of some case law. But this, this is protected under that.

In order to get protected under UK copyright law it needs to be fixed in writing or otherwise. But it needs to original. And by original we mean, basically, the threshold in the UK is so low except to talk about databases, the threshold for copyright and databases is a bit higher. But we’re not talking about databases today. But, generally, the copyright threshold in the UK is so low that when I say it has to be original, basically means we haven’t copied it from anyone else. And indeed we haven’t. You could go into WHSmith and find loads and loads maybe of similar cards, maybe the same, I don’t know. But providing they’ve been created and fit that criteria of original work they will get copyright protection under the UK.

To get copyright protection you don’t even need to put the C in the circle. Under the Berne Convention, which requires no formalities, no formalities mean you do not need to go anywhere and register your copyright work. And you do not need to have the C in the circle. It will get to protected. I say that because sometimes people still get confused about copyright if they don’t see an ownership or copyright circle. They think some how – and there’s a confusion and maybe it’s in the public domain. No. And that’s all under the Berne Convention.

There is another convention that the UK’s a signature to. And that’s the UCC. The UCC does require the C in the circle. Most countries in the world are signed up to the Berne. But we are also– most countries, lots of countries, are also signed up to the UCC. Of course it’s silly not to put the C in the circle. That’s good practise to do that. And it’s good practise to put it against your own work. And it’s good practise to acknowledge others work obviously with a C in the circle.

We’ve created a copyright work. And when I talk about a copyright work I mean the whole work. I’m talking about the work as a whole with our card. And just like any works that we may create at work we put into those works what I might call third party material. That might be material belongs to other people. So when somebody talks about third party material they generally mean material belonging to third parties. Someone else. And this card is no different in that we have put in, perhaps, third party content that we have now decided our card is so marketable that we need to clear that third party content before we can exploit our card in any way we choose. And that’s what we call clearing rights.

We would clear the rights in the third party content so that we can exploit the card. Within WHSmith, which you would call a retail sale. Or you would may be familiar, or your colleagues would be familiar, in clearing rights to exploit maybe course material wider. Even as far as the student would need a copyright clearance if you include third party content to distribute it.

OK. So if our card is probably one of the best we’ve ever done. In our heads. And we’re going to exploit it. What third party material, what material would you think you need to take care or so that we can get this card into WHSmith’s.

SPEAKER 9:

Is the typeface copyrighted?

BERNIE:

The typeface? Yeah. Actually typeface is copyright but, generally, when we use the likes of Word and those things, there’s sort of an enclosed licence that allows you to use the typeface. But you’re absolutely right. There is copyright in the typeface. There is copyright and there’s a design right as well. So we’ll assume we’ve got a licence for the typeface because of the package we’ve bought. OK? Anything else we would need to clear here?

SPEAKER 9:

We stole the NASA image.

BERNIE:

So we’re going to clear the NASA – is anybody familiar with clearing NASA images? Yeah? NASA have themselves put the majority of it – because they’re government funded – in the US they put the majority of their materials in the public domain. And the public domain they have a wider public domain in the US if it’s sort of funded by governments through public money. They tend to shove all that stuff in the public domain. That means making it available to the public. It doesn’t mean it’s any way out of copyright. It could be in copyright.

A lot of the [INAUDIBLE] and stuff you can actually exploit commercially. You actually can. You just need to acknowledge them. But if you get something from NASA, NASA has quite a few sites attached to NASA. You really need to read the licence attached to the NASA images. But I’ve cleared quite a few images with NASA. At times I’ve even been in touch with people who – astronauts and stuff. And they’re actually very nice people to deal with if there’s any confusion. In the licence you can fire off an email and they do come back relatively quickly and they’re quite clear. But, generally, yes. If we’re not sure what the licence says we would go to people who perhaps are familiar with contractor licence and unrated. But, generally, could be on a safe bet with using the NASA image. But you would just check. Anything else?

SPEAKER 9:

What about this photograph that we’ve now traced?

BERNIE:

Yeah. What about that? What do you think? Would we have to clear that? Anybody familiar Flickr? Yeah. Yeah.

SPEAKER 7:

It depends. If the license is not commercial – in any case we need to get back to the creator and ask.

BERNIE:

Yeah.

SPEAKER 7:

So it depends what the license says.

BERNIE:

Yes.

SPEAKER 7:

If it says share alike, do what every you want, there’s no problem with that.

BERNIE:

No.

SPEAKER 7:

But I suggest to go back to the creator and say that we want to use it like that.

BERNIE:

Yeah. It depends on the licence. There’s a lot of Creative Commons licences on Flickr. And there’s also a lot not. Lots of images now on Flickr – don’t know if you’ve noticed – but they’ve said if you want to commercial exploit this, please go to like Getty Images. The photographers have assigned there bargaining rights to big agencies now. I think that’s a shame somehow for Flickr. It seems to be more and more photographers in that way. However, there’s still a lot of Creative Commons licences on Flickr. And if – I’m going to ask you why you said tracing.

SPEAKER 4:

Well, it’s just something I’ve come across.

BERNIE:

Yeah.

SPEAKER 4:

And I just wondered how far the difference, also. How much the image has to be changed before it needs to have copyright? Before you need to get permission? If you traced it rather roughly, for example, would that be OK?

BERNIE:

No, not really. If it’s a recognisable from their original, irrespective of the licence that you may have, which may not allow you to do what you need to do. But if you’ve got a cartoon, say it’s a Disney cartoon, and you put tracing paper and trace it and change a couple of things, it’s likely to be recognisable back to the original. The rule of thumb is, in order to create a new copyright work, say you’re using an image as inspiration, it has to be basically unrecognisable. So you would need to use it just for inspiration. But if you’re tracing it it’s like a slavish copy.

Because copyright protects a two dimensional and three dimensional representation. So even if you have a– even if you have a recipe and you’ve baked a cake without having a licence, because we assume when we have a recipe book, basically there’s an inherent licence there that allows you to bake the cake and do that. But basically that’s an illustration of what two dimensional into three dimensional. If you take that recipe and bake the cake you’re actually, on the face of it, infringing on copyright. Strangely enough. But, yeah, no –

ALMA:

It’s not what happens when I bake.

BERNIE:

I might add it doesn’t happen when I bake either. I would be very much into the unrecognisable bit. Yeah?

SPEAKER 7:

I’ve been thinking about these in the context of art.

BERNIE:

Yeah.

SPEAKER 7:

Somewhere you can go and see an artist’s work and clearly it’s based on someone else’s work. Basically, an artist, at the moment, who is taking a lot of pictures from the internet –

BERNIE:

Yeah.

SPEAKER 7:

– and creating those types of the famous pictures. It could be a picture of a bush with someone. Very famous pictures but are made – each pixel is made of another picture from the work site. All over the place.

BERNIE:

Yes.

SPEAKER 7:

Do you see what I mean?

BERNIE:

Yes, absolutely.

SPEAKER 7:

So you can really recognise it’s a famous picture once you have seen it in the papers.

BERNIE:

Yeah.

SPEAKER 7:

The images come from all around the internet and it’s totally copyright.

BERNIE:

Yeah.

SPEAKER 7:

Alongside the Creative Commons. So how does it work? Because this artist is there in the galleries. So how does it work for art? Is it different?

BERNIE:

No. It works the same in that copyrights subsist – and I’ll show you the slides later. We’ll rush through because we’ll get on to the exercises. But copyright subsist in a work or a substantial part thereof. That basically says you can use more parts of any work. However, it’s understanding what an insubstantial part of a work is. And sometimes that gets decided maybe in case law. There’s a few cases to do with that. And unfortunately I don’t have time to go into them all. But sometimes for the like of me and Alma, we’re using our depth of experience, shall I say, and what Alma would gauge what is insubstantial, taking small parts from all around the place that she’d be happy to go on a risk basis on behalf of The Open University. And generally our risk factor in the OU is quite low, isn’t it Alma?

So basically it comes with judgement and experience and how far you would take a work and use it even if you took a work, or quite a few works, or pieces of a works and made a new work, there still could be somebody come after you and say you’ve used a substantial part of my work. And the area that that’s most common in is the music industry. Where they use samples. And they’ve taken samples of music all over the place to create a new musical work. And there’s been quite a few court cases about that.

One in particular which we– a long time ago was Barry White. And it was like two notes. But this song got to number one and that’s why if you could create a work and it might not create any problem whatsoever. But in the like of the music industry they did it, and it went to court, and Barry White had to be awarded substantial royalties because his notes were identifiable in this musical work. So, basically, you need to tread carefully. When you’re taking somebody else’s work, even if you’re adopting it, you need to tread carefully.

SPEAKER 9:

Do works of art and music have the same copyright protection text does?

BERNIE:

Yeah.

SPEAKER 9:

The 100 year rule or –

BERNIE:

Yeah. Yeah. It’s not 100 years but I’ll show you that. How much it is. Some times it comes down to just looking at an original and then looking at what you’ve created. And you’ve had to do that quite a few times haven’t you? Frequently. To decide what would be judged a copy. Because, basically, you shouldn’t make use of someone else’s work to just prevent you creating your own work. So, basically, it just comes from judgement and experience.

If we had something actual to talk about we could dissect it. And we’ve had to do that in work with more or less texts that are being written and things like that. But, generally, the rule of thumb is, am I creating something original here? I’m not just lazy, that I’ve painted the substance of somebody else’s work. And if you think logically, have really taken the substance of somebody else’s work, then I think you’re into clearing.

SPEAKER 8:

I suppose brands do it quite a lot. I mean, Tesco’s Corn Flakes and Kellogg’s Corn Flakes, the boxes look –

BERNIE:

Yes, they do it.

SPEAKER 8:

[INAUDIBLE]

BERNIE:

Yes. There has been. There’s been with Coca-Cola and that sort of thing where they and – this being quite when they – and they place them together. Like that. But, generally, other than the few that’s been through the court cases, generally they seem to get away with having similarities in their brands area. The main thing about the brands, ultimately, is they shouldn’t trade in somebody else’s brand. And they should be able to rely on their own brand. And, yeah, a wee bit of competition along the way. Yes. That’s a good point. They do.

OK. We’re just getting food for thought here. Let’s carry on then or we’ll have – OK. We’ve done that. Anything else on here? We’ll move on to the second page because I think the second page is quite interesting. What would we need to clear on this page?

I suppose we’ll agree we need to clear that music. And music actually is quite layered. In terms of music – every layer of music is capable of copyright protection. So we have the lyrics, you have the performer, and you have the composer, and you could have the recording. Now, in this one here, we probably have the recording. We probably have the composer, and we probably have the performers, the musicians playing here. And I will know that Match of the Day actually can prove quite difficult to clear. Strangely enough.

And there’s more than one version. And I remember, in our office – I’m early retired now – but now there’s office we have had a version of Match of the Day in our student material. Which was fine because we had a blanket agreement to do that link to the BBC, but when we went to sell this course we had to get that music taken out and another similar type version put in. And so you need to be – we would need to – because that could be stopping us now exploit our card because we didn’t think of that. We just thought Match of the Day? It’s everywhere. Oh, we’ll have no problem clearing out. Then we find we can’t. We can’t clear it.

So there’s bodies that deal with music clearance. But my advice is you shouldn’t really use commercial music in our everyday OERs and that sort of thing. There’s audio network. There’s loads of what I call library music available on the net. Some of it available for free also. I know somebody told me that. If anybody’s got experience with that. So you really should troll what’s available on the net. Or you can get a royalty free licence for music from somebody like audio networks. And a lot of their music is the same mass commercial music, if not better in some instances. But, for some reason, if you do need commercial music, then you should be in touch with – well MCPS, Mechanical Copyright Protection Society. Look after what they call mechanical rights. That’s actually their right to put music in the product. The PRS and PPL, they look after the various interests of all those layers that I spoke about.

So if you want to know anything about commercial music you could ring up MCPS and they’re very knowledgeable about music. If that’s an area that you think you need some advice on. But other than that go with library music. OK. What else now on here?

SPEAKER 4:

Is the copyright 70 – is it lifetime for 70 years or something?

BERNIE:

Yeah. After the death. I’m going to show you that now. So we’ll quickly get on with the card. The badge. The badge, in a way, is an easy one I think because – I think we would just have that manufactured, wouldn’t we? We’d have that manufactured. And if we commissioned somebody – depending how intricate the badge is and everything, we would do a commission and get copyright assigned to whoever. And go with that. OK.

So we’ve dealt with the rights on there. We’re happy as Larry. We’re going to go with the card. We’re going to get it in WH Smith’s, and whilst I said you don’t need C in the circle on the card, we’re obviously going to put C in the circle. Who owns the card? Who, or how many of us, whatever. Who do you think owns this card? Who’s got the copyright in the card?

[INTERPOSING VOICES]

BERNIE:

You say the group. Do you think all of us who contributed? The group. Any other ideas?

SPEAKER 4:

You do.

BERNIE:

Me do. Bernie. Why would Bernie own it?

SPEAKER 5:

You translated it.

BERNIE:

You mean I –

SPEAKER 9:

You designed –

SPEAKER 5:

You wrote it all down. You designed it, you put it together.

BERNIE:

I haven’t helpers, eh? Any other ideas?

SPEAKER 4:

Shared copyright? If you clear the copyright with these other things–

BERNIE:

Yeah.

SPEAKER 4:

Your copyright is also their copyright.

BERNIE:

Who’s there? You mean the licence source.

SPEAKER 4:

Yeah.

BERNIE:

OK. We’ll put that. OK. All right. That’s very good. We’ll rush on.

SPEAKER 5:

Sorry. So what did you –

ALMA:

Publisher.

BERNIE:

The publisher. OK. All right. In the first instance, in the absence of any contract, the author is the first owner of copyright. The author is me, as you rightly said. Because there’s no copyright on ideas, you all gave me loads of ideas. We didn’t have a contract. I’ve ripped you off and all those wonderful ideas. And this does happen actually. It happens – I’ve had it in my working career happen quite a lot. Particularly in collaborations where people are so enthusiastic about the collaboration that they actually don’t sit down and talk about copyright and who owns it and get it all – so it’s useful from that point of view to make sure you have those copyright issues sorted at the beginning and then get on with your work and who owns what.

The group is also a good idea, but we didn’t have a contract. Copyright wouldn’t rest in a group per se because copyright has to rest with a legal entity. That means I can be taken to court. But a group – it’s like saying Open University research group wouldn’t necessarily be the legal entity or the owner of copyright. That would belong to The Open University. That’s useful to know as well on your institutions. I know in a few occasions we’ve had to deal with maybe the library putting a C in a circle, the Open University Library, and we’ve had to say diplomatically that the copyright rests with the Open University. Although you would credit the library. You would say developed by the Open University Library for The Open University. And give them as much credit as they need. But that’s C in the circle would be The Open University.

OK. I won’t dwell on that too much. Assume many of the things we can go into to do with copyright and ownership. Employee, employer, and all the rest of it. But we won’t go into that because we want to get on. Now, our poem. I know I own the copyright in the card. Do I also own the copyright in that poem? What?

SPEAKER 4:

[INAUDIBLE]

BERNIE:

You’re welcome to it. What do you think? Do I also own this copyright in the poem because I put it down?

SPEAKER 8:

It’s not some of the ideas.

BERNIE:

Is it?

SPEAKER 8:

You took down our ideas.

BERNIE:

Yeah. It’s good to say that. Because this is not an idea. You actually didn’t give me an idea about the poem. You actually gave me verbatim words. And all I did was record your words on here. So the copyright in this poem doesn’t belong to me, it belongs to everybody who contributed to it. And then in that sort of situation is probably multiple copyright owner. You’re like Barry White. Yeah. I know that is my line of poetry on there and I want my royalties.

It could be that one line wouldn’t be capable of copyright protection on its own, because it would be considered perhaps too small. But altogether, most certainly, it would be copyright protection. So we would have, how many authors? Four authors. On that, that would be a joint copyright situation. So we’d have to agree on that. OK. That’s that.

We’ll leave that for now. That’s just to introduce you to copyright. And we’ll move on to our slides where as – I’ll quickly go through these as well. And then what I want to do is actually give you some exercises where you can – and then we can chat about those after. Because I think they’re most useful. Particularly to do with Creative Commons, if that’s all right. And we can start talking about those issues. Can you see this OK with me sitting here? Yeah?

OK. That’s just what we went over there. No registration system, no quality threshold. It’s owned by me, the author in the first instance, and it represents control over what they call restricted acts. This is all the types of works that’s protected by a copyright and the Copyright Designs and Patents Act. And the UK is actually one of the most comprehensive copyright acts. It actually, when everything went online and digital, the UK Act had already all that covered by the wording. So while some countries weren’t, the UK was. So it covers everything, as you can see, tables, compilations, computer programmes, scripts, mime, everything. Also film, sound recordings, broadcasts, typographical arrangement somebody mentioned, performances, and databases.

Now this is how long copyright work lasts. It lasts 70 years after the death of the author, which I think you were sort of familiar with. At least you knew it was a long time. Broadcast sound recordings and performances are 50 years. However, that’s all going to be changed. That’s also going up to 70 years. There’s just been a directive. But it will probably come into force in the UK in the next two years.

SPEAKER 9:

Is that because of the– is it Cliff Richard that’s being [INAUDIBLE].

BERNIE:

Don’t start out Alma on Cliff Richard. She hates him. But, basically, yes, there’s been a lot of lobbying. And as Alma would say, on the likes of Cliff Richard whose never wrote a song or anything, he’s only got his performances –

ALMA:

I actually said he was talentless.

BERNIE:

Well, I tell you, yesterday I had my Cliff Richard T-shirt on. I’ve been to quite a few of his concerts. I’m not ashamed to say that. OK. Yes, a lot of lobbying going on. Even the Beatles. And that’s why when it gets near the end of the recording, 50 years, that they bring out these recompilations and all of that to churn out more money.

SPEAKER 4:

Why does it need to be after the person’s death? Is it the family?

BERNIE:

This 50 years for the recordings and performances, that isn’t after the person’s dead. That’s from it was first broadcast, recorded and made available to the public. But this after the owners death, 70 years for literary, dramatic, musical, or artistic works is 70 years after the author’s death is because it’s supposed to look after at least another generation in terms of bequeaths and that sort of thing. You know. So that’s the theory behind it.

SPEAKER 7:

So you mentioned the law in the UK but if the law is different in different countries, how does it work?

BERNIE:

Well, this is the law in the UK, but our copyright works are protected worldwide anyway. Through the Berne Convention, through the UCC, through various conventions. That’s how our works get protected worldwide. So if they were infringed in another country, they’re protected under another country copyright law. So they would be infringed in their country. Our works are protected under their laws, under foreign laws, under copyright, and through various agreements and things like that.

SPEAKER 7:

So does it depend on the nationality? Let’s say that Cliff Richard records something in another country. How does it work? Is it under the UK law, under that country’s law?

BERNIE:

Yeah, it’s under that country’s law.

SPEAKER 7:

Right.

BERNIE:

But It would also get – likely, he would come back and release it under this country’s law it gets protected also. So it makes sense that your copyright work is protected worldwide.

SPEAKER 10:

Can I ask something? Is there any country not part of any convention or agreement?

BERNIE:

Well, not that I’m aware. There’s a few countries, I couldn’t even list them, that are – there’s a few countries in the agreements that perhaps don’t abide by them as well as they should. China might be one. But, generally, most of the developed world have a copyright law and they’re all signed up to the Berne/UCC UCC convention. Even America. So, yeah. OK.

This is just letting you know that the authors for film, sometimes, is considered a wee bit different. The director would be considered an author, the author of the screenplay, the author of the dialogue, and the composer of the original soundtrack. Those four authors would be deemed authors of a film. However, if you were clear on footage, to have some clips in whenever you’re producing, in a way you don’t need to worry about that because you’ll go to film company who owns the footage. And you would clear the footage that way. But that’s when it would expire. After those four authors have died.

When it is restricted acts, this is basically letting us know that this is what we can’t do without permission from the copyright owner. You can’t copy, you can’t give issue copies to the public, perform, broadcasting, you can’t adapt. Which we were talking a wee while ago about adapting and all those different guises that we spoke about. And adapting also means putting it, a translation into another language. Also, in computer terms, translating that from one computer language to another. That’s all under adapting. Storing electronic medium and altering, and overriding security systems.

Rental and lending. This is basically to do with piracy and that sort of thing. Except for authorising infringement which could do with the internet and how you put works on the internet and that sort of thing. But we haven’t got time, unfortunately, to go into all the ins and outs of everything here today.

Permitted acts. Insubstantial use is not in the act but we put it there just to remind us to say that you can use small parts without infringing copyright. But you just need to be careful that you don’t use too much. Because insubstantial is qualitative, as well as quantitative. So if you said, Alma Hales did it in the library and she used a knife, that would be considered quite substantial because it could be the whole who done it in a book. So when I said you shouldn’t take a substance of anyone’s work, that’s what I mean as well. You shouldn’t take the substance of anyone’s work, not just the amount, but the actual sort of who done it.

And this is non-commercial researcher or private study. Purposes of criticism review, fair dealing for the purposes of reporting current events, bona fide examinations, and instruction film making. Sometimes we can spend quite a few – a lot of time, Alma and I, going through these. But we don’t have time but, basically, that’s what you can do. If you’ve go any questions or anything later on you can just fire them at me.

This is to do with licenced recording of broadcast, educational establishments, which is the ERA licence and the CLA licence. And you can record at home your favourite programmes and watch them at a time suited to you. But you’re not supposed to collect a library, that sort of thing. Like we don’t.

Decompilation has to do with software. And you do that with caution. And redrawing, you do that with caution, which is what we spoke about. Redrawing a slavish copy and that sort of thing. There’s no copyrighting information so you can look at information, take that information and present it in your own way. That is creating a new copyright work. So you can look at information, say on a table, and then make a pie chart and source that original information because you are creating a new copyright work.

SPEAKER 5:

Or translating.

BERNIE:

Translating you cannot do – when you translate a work basically, you have created a new copyright work. But you can’t do anything with it because you haven’t got the permission to translate. So you could put a lot of effort into translating an original work, but if the copyright holder is still alive and the original work in which you translated, you’d be infringing, distributing it or copying it, but you would have created a new copyright work of which you would be entitled to copyright protection. Strangely enough. In other countries they wouldn’t allow you to copyright protection in a work when you haven’t had permission in the first place to translate it.

This is sort of a thought process, strangely enough, I use when I’m dealing with copyright every day. I just go through my head of a master question on copyright. It just goes through my head, is it a work? Is it protected? Am I performing a restricted act? Is what you want me to do a restricted act? Do you have a defence? And that’s all those defences that I showed you. A criticism or review and that sort of thing. If no, yes, no, yes, will you use it or you clear it. OK.

Creative Commons. I’ll go through this and then I’m going to have you do a wee exercise. Why choose Creative Commons? Well, Creative Commons, as I said, is not a religious movement or anything like that. Creative Commons is a license. It’s a licence that, basically, Creative Commons the organisation got together and created these licences because they recognise first of all, that people get confused reading a lot of legal language and contracts. And they do recognise, also, that there are many rights owners out there do want to make their works available. But they also want to retain copyright. And they want to make them available in a way that, say, suits certain communities. And they’ve got a suite of licences that they can choose which one that they may want to use to put their works in, have available to the public.

Of course, it displays a mark of commitment. And standardised terms, as I just said, so easily understood. If any of you are familiar with Creative Commons licences. So written in just plain English. And they have a legal code that’s written for lawyers and then they have this sort of easy to understand language that says you can do ABC and D. Easy peasy.

And when I say standardised terms easily understood, also the symbols on Creative Commons are internationally understood. So if you were even searching for content under Creative Commons licence, and you found a Creative Commons licence that was written in a foreign language, because the symbols are international you know straight away, if you become familiar with those symbols, what those symbols allow you to do. And even if you don’t, as I’ve done some times, I’ve gone back to my English version of Creative Commons and was able to just say, god, I can do ABC and D. It’s so easily understood, those terms.

Of course, as I said, based on collaboration and interchange which is what open educational resources is all about, and the moral rights are preserved and copyright, of course, is preserved. Creative Commons attribution of authorship is something you have to do in every Creative Commons licence. No matter how restricted or wide the licence is. The most fundamental part of a Creative Commons licence is you must attribute the author whose attached that Creative Commons licence to his or her work.

This is sort of looking at how you would choose perhaps to make your works available under Creative Commons licence. And some considerations you may apply. Whether you want people who use your content to vary it or no variation of content. You can choose an appropriate licence for that. Whether you want them to use it commercially or non-commercially. And whether you would like any future use to be licenced on same terms and what they call a share alike licence. And as I said before, it’s internationally recognised symbols.

SPEAKER 8:

Can you just answer me, who owns Creative Commons? Who’s behind it?

BERNIE:

Well I’m not sure who owns it now, but it’s a whole organisation that started up from academics in Harvard stroke Berkman in Harvard. And they, obviously, got together and wanted everybody to collaborate and share in content. And for years they’ve been lobbying to get people to share content much in the same way that any of you familiar with software, you would have had those software licences that originally were put out under a share type licence so that if there were any bugs in the software that they could be corrected and then put back to be used appropriately. And it sort of spun off that in terms of – but I can’t remember the guy who now – Lawrence Lessig was a big name. And I actually went on some – I did some of my training at Harvard at Berkman under Lawrence Lessig, years ago when the internet was sort of new I went to Harvard for one of them residential courses. That was fantastic. Yeah.

But the Creative Commons hadn’t come in then. But he was espousing about he wanted content. And we used to say, yeah but you write loads of books, Lawrence. You’re not putting any of your content out there for free. It is – I don’t know who runs it now. I know Lawrence Lessig still has a hand in it. And he was sort of – him and others, because they were lawyers, sort of pushed it ahead. And it’s so – I think it’s a wonderful licence. OK.

This is basically just things as well, if you’re dealing with Creative Commons, or you’re dealing with putting your content available wider to the public that, basically, you should be considering. How you deal with ownership of content created in house. Whether it’s sort of falls under terms of employment or not. Moral rights. Dealing with licence and third party content, if that’s an issue. And what sort of business model. What is noncommercial? Obviously, based on collaboration, and creation and publication of content by users. These are just things for consideration. And maybe some of the exercises that I’m going to give you will bring out some more issues.

But, with Creative Commons, copyright is retained. You get a broad licencing of tools and content. You’ve got standardised licencing. And it is, very much, community based. OK. I’ll leave that up there because I really do want to get on to the exercises.

Creative Commons, it is based on copyright, as I said. It does not protect the ideas or facts. It applies to all works. Fair dealing, fair use preserve. Its non-exclusive. It’s non-revocable. And I just say, think about what you are licencing. OK. I’m going to hand out some exercises now.

Right.

SPEAKER 8:

[INAUDIBLE]

BERNIE:

This is not – we’re not going to come up with a sort of a right or a wrong answer. There might be situations where whatever you say is good. It’s just that you’ve considered all the issues to hand. And that’s fine. OK.

You find six images on the web and you use them in your course related DVD. The resolutions are fine. They are available under Creative Commons attribution non-commercial licence. This clearance is fine for your initial use for your staff and students, but you probably eventually hope to sell the course. Should you not bother with those images and reselect? What did our group here think?

SPEAKER 7:

Reselect.

BERNIE:

You would reselect? Would everybody reselect? Why would you reselect?

SPEAKER 8:

Costs.

BERNIE:

Costs.

SPEAKER 8:

Cost implications are going to be – have them change the images for commercial distribution –

[INTERPOSING VOICES]

BERNIE:

Well, that’s fine. The reason I put this question is because I deal with this sort of thing all the time. Because I do clear copyright works for open, closed, you name it. I’ve done it. And in my experience, and it’s only my experience, I wouldn’t have reselected. Because you find, and I’ve found from my experience, that when I’ve gone back to the rights owners they have actually, without exception, given me permission. For no charge. So it’s just a consideration.

So whatever business model you’re following it’s just – don’t jump to the next scenario and think, oh, we need commercial. This is a non-commercial licence. Because it’s just the licences the rights owner made available. It’s likely they could be very well into just – because your commercial activity might not be commercial in the true sense. You might be making money, maybe within an educational institution, but it might not amount to a profit that’s going to make – and if there are any profits it might be they’re going to be ploughed back into your educational institutions.

So there’s all those things to consider. And those things that you consider is how you would approach a rights owner then. And say, look, I’ve got permission. And say you’ve got the Creative Commons licence from Flickr. It’s an image. It’s from Flickr. For those of you that are familiar with Flickr, you can email them through the Flickr site. And get them to email you back and I, quite often when I email through Flickr, I give them my institutional email then and I say can you come back to me. Without exception I must add. There hasn’t been loads of cases, but without exception it hasn’t cost me any more money. So it’s just a consideration. I may be– whatever factors come into play– you might think no, we have to ditch those images. But you’ve already got them.

SPEAKER 4:

What’s the worst case scenario there? Either with – if you did take them and there was a particular, nasty owner. And you did make quite a bit of money out of it. Could they come down really hard on you? Could they really sue you?

BERNIE:

No. No, because what I would say is, when you negotiate with a rights owner, obviously, you’re an honest people. You’re not telling them lies. And you could make loads of money but still, if the situation is, the money is going to be ploughed back for the educational purposes of that institution, you explain that. Or you explain something about your institution and how they – The Open University is a very good case. And I always talk about widening participation. That’s why we want to make it available. In this instance is, we’re going to sell it. But any profit going to get ploughed back to the institution.

SPEAKER 4:

You’d always ask them first. To make sure. You’d ask them. Especially if you found those images on the internet. And you couldn’t work out who owned them. Would you just take a chance? Or would you –

BERNIE:

Well, yeah. It depends on – for a start, no institution or any business operates without a risk factor. And you have to have a level of risk. We don’t have any level of risk that’s acceptable to you’re institution you’re not run any business whatsoever. Depending on your business you can’t be too jobs worth. And, particularly when you’re dealing with copyright, obviously I tried to share my experience with you and tried to make you more confident in dealing with copyright in the sessions that Alma and I do, which last a whole day. So we want people to go away and feel more confident in dealing with copyright so they can make a decision and then move on. And to make a decision to say, oh, we’re not using that because we haven’t cleared copyright could be the right one. But you need to make it at the right time so that then you can carry on and get new content in.

So, basically, you got to make a decision. You got to plan for your copyright clearances. You’ve got to plan to allow you to clear it, or get a refusal. Insert your content and decide which content that you would go with if you don’t get a response. And that would be within your risk considerations. There might be some stuff you decide you most definitely not using. Like a Disney cartoon. There might be some high profile stuff that you say we’re most definitely not using that on our risk factor. Not that you might get a refusal, but you also might be too expensive. And those factors come into play when you’re making those sort of decisions.

But on the net, if you come across images, maybe you’re doing an image search, there could be loads of the same age. And perhaps you cannot trace back to who owns it. And depending on the image, that might be a relatively low risk. And you would cover it by saying that you’ve made every effort. That’s not a defence in any means. It’s just shows that you follow good practise. And then, because the rights owner, as I said, is control. The rights owner could say I don’t want you to use it at all. In most instances, and with experience, you realise that’s not the case.

ALMA:

You may be surprised, I’ve had an instance just today whereby a course team have made a selection of audio visual content for Open Learn. So it’s going to be available under a Creative Commons licence and I have to say we will be using chunks of it. Take it out, take it out, take it out.

BERNIE:

Kind of think we’ve got that in one of our questions, that sort of thing.

ALMA:

Yeah, so experienced people and experience producers put this together but they still haven’t thought, gosh, it’s going to be open. And the decisions I might make for a closed area are, to a certain extent, different to the decisions ultimately made, and the risks associated with, an open area. And this video clip included children so it’s doubly careful.

BERNIE:

So we’ll deal with that question I asked about children in terms of, when you’re dealing with copyright as well, it’s not all about, in many instances, what you’ve got the right to do. It’s about doing the right thing. And some things – and ethics does come into play in making content open to everyone. And I’m sure your institutions will have some policy on ethics the sort of gives you guidelines on whether you’ve got a permission or not. We do not do ABC or D, whatever.

So let’s look at that one. We’re promoting a course on the social care and well being of children in the 21st century. You have a cracking photo of a group of children and another of a young child. Both of which you got from Flickr. What’s more, they’re available under a Creative Commons commercial share alike licence. You intend to use these images in your printed material and online marketing for the course. And you want to distribute to all your usual outlets of child and news agencies et cetera. You’ve been asked to ensure you have permission for use of the images before you print them. But if you have a bona fide Creative Commons licence on the Flickr site do you need to consider anything else? What did you decide? What to do you come up with on that one?

SPEAKER 5:

We said UBT considered the – they were actually being photographed. And we’re not sure whether they even gave their permission for their image to be used. So we would suggest not using it.

SPEAKER 11:

I think with the scenario in this. Rather than that one. Number two talked about children.

SPEAKER 5:

But it’s –

BERNIE:

Yeah.

SPEAKER 5:

– the same issues.

SPEAKER 11:

Same kind of issues.

BERNIE:

Yeah.

SPEAKER 11:

That one’s actually slightly different than this one. We just said, no.

BERNIE:

Was the one you –

SPEAKER 5:

Even with the Creative Commons licence you’ve got on this, I think you still can’t guarantee that the subjects of the pictures have given their permission.

BERNIE:

I think you saw – what did anyone else think? What did you say there in the box?

SPEAKER 4:

Similar, wasn’t it? We were concerned about whether the participants had given their permission and whether someone uploading and licencing content was enough. Which is –

BERNIE:

Yeah. I think you just have to have your own quality gauge yourself. The images of children could be suitable for online open whatever. They could be so, like a nothing. they could be profiles. They could be the images of the children are fine. But you really need to be careful whether you’ve got a licence or not of full face images. Alma, you had an instance today of children that, in a way, were about children being sexualized.

ALMA:

Yes.

BERNIE:

Weren’t they? That was a new – you rightly, I think, said no way.

ALMA:

The original use was fine.

BERNIE:

The original use was fine. And it’s a subject that needs debated and everything. But the images themselves, if you can imagine, and the pageants and things that take place, Alma thought that no way would you allow them to go on an open website. Although the subject matter could still be debated. But then they could have to be very careful in how they choose the images. Alma was telling me. So just be careful whether you’ve got a licence or not. As I say, just have your own gauge of quality.

SPEAKER 9:

In that instance would you sort of say, well, instead of having actual image within your material, put a link in to say, the sort of image we’re talking about is available here. Or is that still – so you’re not actually having the printed image in with your text.

ALMA:

I wouldn’t even –

SPEAKER 9:

You wouldn’t even do a link?

ALMA:

No, no. That’s just a personal –

BERNIE:

I think you just need to be careful. What we’re talking about here is paedophiles, aren’t we. We don’t want to be a shop for paedophiles. And paedophiles, we don’t know how they operate, and that’s why Alma is ultra careful and I’m ultra careful when I’m dealing with open. Because even a full face image can be taken as sexual. If you can imagine those grownup images of models and things, they focus on the face. So we always advise profiles is fine. If they’re looking in an activity round a desk, sometimes you don’t need more than their hands. If you’re think about the children, and the children’s images, against your brand online, it really lets you focus on actually what do you need. And not just what have you the right to do. Say, well, actually we don’t need that. We could do with this. And it just allows you to focus, I think, so you’ve been very good at that.

So the second one, question on this one, again was a lovely image of while he was on holiday. Did you have a different response to that? The same response? You mentioned that didn’t you?

SPEAKER 11:

[INAUDIBLE]

BERNIE:

Yeah. That was an actual thing actually. That actually happened, didn’t it?

ALMA:

Yeah.

BERNIE:

Yeah.

SPEAKER 9:

We had a question about that. We wondered if the children were sort of off-focused in the foreground, you’re actually taking cars in the background. Whether that would be OK. Whether it was because the focus of the image was children, in which case, we weren’t happy.

BERNIE:

Yeah. You might not be happy and if you’ve got a few images you might get one out of it where you are happy with. And this actually happened that an academic did go on holiday. And I says, but how did you get the image of all these children in their school uniforms? Oh, I just gathered them all together. I says, what about the permissions? He said, yeah, they were happy with it. That’s true. I said no, you’re not using that.

SPEAKER 9:

If it’s not just a child can they give permission?

ALMA:

No, they can’t.

SPEAKER 2:

In the scout association, of which I’m a member, if we want to– only on permission slips when they do an activity, every year the parent has to say that they have no objection to photographs being taken. And we have to put on it that the photograph will only be used for scout association purposes and not for any other activity or gain. And if there is going to be any commercial use made of that– because sometimes we have had the scout association promotional people come down to take photos and videos and stuff– they have to get permission particularly from those parents of the children they’re going to use. So it may be that they take the video but then they have to go back to each parent of the children that are there to get permission. If that parent says no they can’t use it.

BERNIE:

Yeah I think it’s one area to do with all our children that we can’t be jobsworth. We can really, we work– Alma, you work quite easily with it. Doesn’t create a problem.

ALMA:

Copyrights never a problem.

BERNIE:

No.

ALMA:

I know that sounds So easy to say, but if it’s set up properly it isn’t problem. And third party content adds a richness to resources unquestionably. So for me it’s not a problem. I don’t like it being used as a barrier.

BERNIE:

Yeah. That’s good. OK. Number three. You find an article by Alma Hayles on the web. This will be brilliant for you learning object intended for open use. You contacted Ms. Hayles twice. You’ve been in touch with the webmaster see if she can help but no response. You’ve amended it because you didn’t agree with some of the points she was making. I don’t either sometimes. And you think you’ve improved the work. You’ve always left her acknowledged as the author. You’ve had no response and you’re just going to use it anyway. And everyone’s always talking about taking a risk, so you’ll take this one. Is that OK? The bottom – our bottom group. What did you think?

SPEAKER 8:

Didn’t think it was academic good practise. Because we were a bit confused over what exactly we’re attributing to one author and what you were attributing to yourself. We felt that it might be appropriate to use it, but you would need to write it not actually just changing the content but showing what the original content was, and then indicating what changes you felt like to be made to it. As you would in any piece of academic work.

BERNIE:

So you would, perhaps, from an academic perspective, you might change it but not really change it substantially. Is that what you mean? Maybe in –

SPEAKER 4:

No, you don’t have to change it. You could actually link out to the original article that’s in it’s location and say, I’d like to draw your attention to the following aspects. Other researchers have indicated that this might not be –

BERNIE:

Yeah. Yeah. OK. That’s seems a good alternative doesn’t it.

SPEAKER 7:

Well, I think a common practise is – as you say, adopted from, and you say where you – because [INAUDIBLE] for the time. And we simplify text, we – so this is the way we present it.

BERNIE:

Yeah.

SPEAKER 7:

Adopted from, and you give the original reference.

BERNIE:

Yeah. And you would link – would you also – you would link it.

SPEAKER 7:

No.

BERNIE:

You would use it.

SPEAKER 7:

You would use it, but you’d leave a reference. So people can go and find –

BERNIE:

OK.

ALMA:

[INAUDIBLE]

SPEAKER 7:

Yeah. If you get approval first.

BERNIE:

But would you change it? Would you change the work?

SPEAKER 7:

When you’re that deep you change it. You simplify the language. And you would then change sometimes the structure or you add a picture that wasn’t there. So we do that in our materials.

BERNIE:

That’s interesting, isn’t it.

ALMA:

And you say it’s on the web, but you haven’t said whether or not it’s a wiki. And if it’s a wiki you can edit it any way. Can’t you.

BERNIE:

Yeah. It must be a wiki. You’re editing it.

ALMA:

So, we’ve kind of got this bit of paper, and it’s on the internet, and you add two pictures and a paragraph, and you just take that second paragraph out. You would use that and just say, adapted from blah, blah, blah, blah, blah. You wouldn’t think, actually Alma might object to me adding to the photograph.

SPEAKER 7:

You have to ask for permission first to –

ALMA:

Ahhhh.

SPEAKER 7:

And if the author doesn’t respond–

ALMA:

Right.

SPEAKER 7:

We always ask for permission.

ALMA:

Right. OK. So you wouldn’t just go ahead and –

SPEAKER 7:

No. You would need the –

ALMA:

But if the author didn’t –

SPEAKER 7:

Respond.

ALMA:

– respond.

SPEAKER 7:

You go ahead and do it.

[INTERPOSING VOICES]

SPEAKER 11:

How long can you – how many – you were saying that what if the author went and lived in a cave, right. You couldn’t get ahold of them. Are you – how many times can you ask them before you can just say, oh, I’m going to use it anyway?

BERNIE:

Well, I suppose saying I’m going to use it anyway isn’t the right response but you would have a process where you would seek permission and then you would gauge whether or not, as we spoke before, whether or not you’d be willing to take the risk and use it on the basis that, probably Alma’s on holiday in a cave. The nature of the material is such she’s likely to give us permission if she only knew we wanted it.

Maybe using it is a relatively small risk depending on the content, as we spoke about. Maybe adapting it raises the risk a wee bit. But then you’re going on your experience and what you’ve done. And that is a good gauge as well. All the experience you have and the nature of those adaptations then may hold.

It could be the whole thing comes out to bite you in terms of Mrs. Hayles might not be happy with the adaptation. But maybe that adaptation is just for the purposes of your readers and it’s not taking away the context of Alma’s work. So that might be OK. There’s just various factors to consider. As long as you consider them than that’s fine.

OK. You’re institution has an online open learning resource and it’s based in the UK. You’ve selected an England and Wales UK licence for the use of your content. However, you’ve been asked by a user in China if the CC licence still applied. Does the CC licence refer to where the content is being hosted? Or where it is hosted. I don’t quite get that.

ALMA:

Content is being used.

BERNIE:

Oh, used! Sorry. Used or where it is hosted. OK. Is this one group? Group down here. What did you think?

SPEAKER 3:

We’re the same group.

BERNIE:

Oh, you’re all the same group.

SPEAKER 3:

Yeah. I think this is one we were um-ing and aw-ing about, actually, because whilst the CC licence is international, we’re a bit unsure because the statement that the English and Wales UK license had been actually adopted. So that’s something that we hadn’t really come to a conclusion about. We were on the fence in the sense where we’re saying, on one side, yes. Because it is an internationally known thing. But then the other sides not entirely sure. So this is our –

BERNIE:

I think that’s a good response recognising the CC license is international. What did others think? What did you guys think over here?

SPEAKER 5:

We were a little bit unclear about whether you licensed it under CC in the first place because you specifically said you went to Wales which we thought referred to the Patents and Copyright Act. I’d say well, they’re different.

BERNIE:

Well this is contract. This is like – is contract and UK and Wales is like a jurisdiction. So –

SPEAKER 5:

So I think, in that case, we’d say the licence still applies, we’re at risk. And being used –

BERNIE:

Yeah.

SPEAKER 5:

– puts us in [INAUDIBLE].

BERNIE:

Yeah. It is an international licence, and as we spoke about earlier about recognising those symbols even if it’s written in a foreign language, the principles of Creative Commons applies internationally. However, you do have these different territorial jurisdiction licence. And they’re called ported and unported. A ported licence is where they’ve put the Creative Commons – it’s written to fit a particular territories law and copyright terms. So the UK licence – and Wales – is written to take account of, say, a database right that we have in the UK but they might not have in another country. It’s just a language and nuance thing that may apply in different territories. However, the licence is international. If that licence was breached and needed to go to court the UK would be the jurisdiction. Because that’s what it says. Quite often you see it in software licences, don’t you. Remember we’ve got that free software. They would say this is under California law and that sort of thing.

SPEAKER 4:

Is it a difference between an England and Wales UK licence and one that would include Northern Ireland and Scotland?

BERNIE:

I don’t know. The principles are still the same. In Scotland they have– the licence is basically the same in copyright. But in Scotland they have a different law and particular areas of the law to do the children.

SPEAKER 4:

Yeah, different case law.

BERNIE:

Different case law and that sort of thing. And Northern Ireland they probably have the different nuances as well. But, generally, in terms of Creative Commons it doesn’t present a problem. It’s just what it is. It’s an ownership thing as well. If Scotland want their own licences because Scotland want their own licence – are you with me? Yeah. Alma is Scottish.

ALMA:

I am indeed.

BERNIE:

I’m from Northern Ireland and haven’t put too much thought into it in that respect.

So actually it’s where it’s hosted? Or where it’s created. Or at least being used. It’s being used.

BERNIE:

Yeah. Yeah.

SPEAKER 6:

Where it’s being used.

BERNIE:

Where it’s being used. Yeah. OK. You have some software and you’d like to make this available under a CC licence. Would that be OK?

SPEAKER 4:

We thought it’s not too.

BERNIE:

Yeah.

SPEAKER 5:

To give them the licences.

BERNIE:

Yeah.

SPEAKER 4:

But you look at the free software violations.

BERNIE:

Yes. Absolutely. That’s really good. For those of you that are interested in software. Because people do get confused about Creative Commons. They think it applies to everything. And, of course, they might apply it to software and that sort of thing, but it’s because of the language and deals in source code and object code. The language isn’t really written in a Creative Commons licence to take care of software. Whereas, as you rightly said, the free foundation and the GNU and whatever is out there looks after software much better. So, that’s right.

ALMA:

Is Creative Commons, as a body, looking into software, Bernie?

BERNIE:

Well I don’t –

ALMA:

I vaguely remember reading that they were looking into –

BERNIE:

Well they might do. And in a way it could be useful if they make it simplified. Because if you ever read those software GNU licences and they are quite complex aren’t they? Yeah? Once I had to get in touch with somebody. I couldn’t understand – I thought some of the clauses – some of them contradicted each other. Because there’s loads of them. So if anybody was simplifying the whole, you may do and not do, and share and not share in a way that Creative Commons is written, I think it would be welcome. Wouldn’t you?

ALMA:

Yeah.

BERNIE:

Yeah? Did you read something about that there?

ALMA:

I thought I did recently but –

BERNIE:

But Creative Commons themselves advise you to look at GPL.

ALMA:

Yes. Yes they do.

BERNIE:

And GNU on their site. So I don’t know. OK. That is good. So you’re institution is making some of it’s content available under a Creative Commons licence. How do you ensure that your trademarks and you’re logos are protected? Let’s see. The bottom.

SPEAKER 4:

Well, it’s – the questions immaterial because your licence is for the content. Not for your trademarks and things like that.

BERNIE:

What did the rest of you think?

[INTERPOSING VOICES]

SPEAKER 4:

That was my thought. I don’t know what the rest of you –

SPEAKER 2:

If it’s a trademark is it not automatically protected?

BERNIE:

By Creative Commons or –

SPEAKER 2:

No, no, no. By the trademark?

BERNIE:

Yeah. Yeah. What did you think?

SPEAKER 5:

Do you have to register your trademark?

[INTERPOSING VOICES]

BERNIE:

Do you know you are the first group to say that which is perfect because it does cause some confusion that the trade – when you put your content up. And, obviously, you have it with logos and your trademarks, people think, oh, they’re going to use our trademarks and logos under Creative Commons licence. No. Creative Commons licence does not protect trademarks and logos. Creative Commons licence protects copyright works. And they have their own protection as you very rightly said. And I’m so pleased.

However, in order to erase that confusion even further, and all your terms and conditions it is useful to reinforce, that your trademarks and logos, et cetera, et cetera, is not made available under the Creative Commons licence. Because lots of people are confused. Even though you aren’t and I’m so pleased about that. I think you have done absolutely brilliant. Yeah. If you’ve got any burning questions before –

SPEAKER 7:

I do have a question about we – I’m in a club where we have a club-related website. And we want to apply a Creative Commons licence on the website so all the things, all the resources or anything that we put up – even the image – are Creative Commons. The people – some have concerns so I don’t know whether – what would be the standard practise. If you are in a project – it’s a JSC project as well. With that you can put your – place the Creative Commons on the website and still be fine.

BERNIE:

It’s a JSC project.

SPEAKER 7:

Yeah.

BERNIE:

And the requirement under JSCs, they’re funding it, is that the content goes up under Creative Commons? Or –

SPEAKER 7:

I’m not sure. To tell you the –

BERNIE:

Well, the first thing is –

SPEAKER 7:

Well, the project is about open education for sure. So the idea is –

BERNIE:

So it’s likely. So on the face of it the Creative Commons licence would best serve that project. Now which Creative Commons licence, I don’t know. As you know there’s six of them. So we need to choose the right licence. Share alike might be a good one for you. So what is the problem in doing that? Are you talking about the content belonging to your institution?

SPEAKER 7:

I do not see any problems but colleagues are very nervous about it. And so we are – do we want to put this up? See what I mean? A lot of uncertainty. What is the usual practise in this kind of project? Would we put that –

BERNIE:

Yes, they do. And those projects quite – they would put them up under a Creative Commons. The most type of licence, like the Open University use, is a non-commercial share alike licence. Now your terms and conditions should allow for exceptions to that. Because there may be some content not suitable for a share alike licence. You may want some content available under a non-derivative licence because it’s really not suitable to be adapted, changed, improved, whatever, depending on what the content is. So any terms and conditions should be flexible to allow you to put it up under the terms and conditions that’s suitable for the content.

If it’s a project where the authors are putting content up then you could ask them to put it up and it’s going to be used under Creative Commons share alike licence. However, I know there’s some projects at The Open University where the authors are allowed to choose which Creative Commons licence. They’re allowed to put the content up. So there’s a flexibility. My job here this afternoon is to make you think widely about Creative Commons. And not just think one size has to fit all. Because you have to choose the licences, or licence, appropriate to your project.

And I know in OpenLearn, that Alma looks after, we have got The Open University’s material under a share alike licence. We’ve got a third party material up there not available under a Creative Commons licence at all. And then within that, we might put some sensitive material up that we do not make available under a Creative Commons licence either. So everything is sort of monitored and it’s put up under appropriate licence. However most of it is put up under share alike licence. Sometimes we’ve put it up under a non-derivative licence. Haven’t we, Alma?

ALMA:

Yeah.

BERNIE:

And we have – when we put the content up we would say to the users, this content is made available under this particular type of licence. And we make sure that people are aware of that.

ALMA:

The license is a consideration. I think it’s unhelpful when you start getting into conversations whereby the contract is king. It’s still all about the content.

BERNIE:

Yeah.

ALMA:

It’s very easy to get into the licencing conversations. And I actually think the content should be king.

BERNIE:

Yeah.

ALMA:

And you do what you can with that. But if you’re starting position is what license should we pick, that’s a shame.

BERNIE:

Yeah. Yeah. You pick appropriately for your users, for your content, and I just advise you to think widely for your project so that you’re not – even if some say this needs to go up under a share alike licence. Maybe it does. But why? And it widens the content. Once you start to widen, maybe the type of licence you can apply, even if it’s kept under Creative Commons, I think Creative Commons is brilliant. It just widens how you’re making this available to your users.

ALMA:

And I think that everybody gets JSC funding these days. To work on a JSC project, the OU is certainly no different. But I never, ever relinquish copyright for existing OU materials to a project.

BERNIE:

No.

ALMA:

Ever.

BERNIE:

And I don’t even think JSC requires you to –

ALMA:

No. No.

BERNIE:

– to do that now. I think year ago, perhaps, that might have been the case. But the fundamental thing about Creative Commons anyway is that Creative Commons is a non-exclusive licence. I think I mentioned that. That means if you’re the rights owner, or your institution’s the rights owner, I’m putting material up under a Creative Commons licence, that’s the licence you’re making it available. You own the material. You can do what you like with it. It doesn’t restrict you to use it under a Creative Commons licence, you’re just allowing others to use it under whatever Creative Commons licence you’ve chosen. But you can do what you like with it.

Creative Commons licences is non-revokable. That means when you put it up under the Creative Commons terms and conditions, then you cannot revoke that licence. You could take your content down. You could stop making it available under a Creative Commons licence. But, what you can’t do, is revoke the licence to those people that you’ve already made it available under. They can continue using it under the terms under the Creative Commons licence.

SPEAKER 6:

Can I ask something? Based on that. Let’s say we are taking a table from Flickr and some photographs. And all of a sudden the creator decides to revoke the licence and makes it, probably, non-derivative. What happens to our content?

BERNIE:

Well, if you’ve already used the content onto your – the first licence, which was share alike, perhaps, I don’t know. Then you can continue using the under a share alike licence. However, I think you must consider when they put the material available under share alike licence, was it really appropriate? Because some people put stuff under share alike licence and Flickr. And it’s not really appropriate for a share alike licence. Perhaps, in their view, it could be artwork, or a photograph. Where photographers are quite keen that the quality and the context of their artwork remains in tact. So it could be he or she’s realised this and then –

SPEAKER 6:

Decides to –

BERNIE:

Put it under –

SPEAKER 6:

Yeah.

BERNIE:

Yeah.

SPEAKER 6:

They’re different.

BERNIE:

Under a non-derivative licence. So depending how important that is to your project, then you do have the right to carry on using under your share alike licence. But, I think, then you should consider well, really this image isn’t really appropriate for a share alike licence. And maybe I can also change the licence to a non-derivative licence. Just something to be considered. You still have the right. It’s non-revokable that licence that you’ve had originally.

SPEAKER 3:

So, just to be clear, if you issue something you make under a non-commercial licence, you can still make money off it if you want to.

BERNIE:

You can. Yes, you can. Because –

SPEAKER 11:

Other people can’t.

BERNIE:

Yes, other people can’t. That’s absolutely right. You are the rights owner. You are in control. You have licenced it under a non-commercial term for others so that they can’t make money off it. But as I say, if they came back and say, we now got to exploit this commercially. And you might say yeah, you can give me 50 quid if you want to exploit it commercially. Or you can go off and licence it commercially wider to your publisher or a particular body. So you are in control.

SPEAKER 11:

But wouldn’t I – you just said the license was non-revokable. You say you can license it differently to somebody else. You can have a non-commercial license for educational institutions and a commercial one for a publisher. Of the same content.

BERNIE:

The one thing I’ll make straight about Creative Commons licences, they’re not educational licences. They are licences. So the educational sectors can use them because they’re suitable for them. But anybody can needs Creative Commons non-commercial licence in a non commercial way. But if your the rights owner you have the ability to keep licencing it non-commercially. The licence is nonexclusive. You can licence it any way you like. Because you’re the rights owner. Does that makes sense to people?

SPEAKER 11:

But that would be under a different licence, not Creative Commons.

BERNIE:

That’s right.

SPEAKER 11:

Right.

BERNIE:

Well, it could be another Creative Commons licence if it fulfilled – yeah.

SPEAKER 11:

That makes no sense to me.

BERNIE:

Yeah. If you’ve issued your work under a Creative Commons non-commercial licence, right. You can similarly issue you’re work under a Creative Commons non-derivative, a Creative Commons commercial, whatever.

SPEAKER 11:

But they’d cancel each other out then.

BERNIE:

Well, who cancels what out? Because that gives people –

SPEAKER 11:

Commercial would cancel out non-commercial.

SPEAKER 4:

If it’s the same work.

SPEAKER 11:

If it’s the same work it can cancel each other out.

BERNIE:

Yeah, but if you’re the rights owner you are in control.

SPEAKER 11:

Of cancelling out my own work.

BERNIE:

No. No. No. Of being in control of the work. That control stays with you all the time.

SPEAKER 9:

You wouldn’t have more than one licence simultaneously, though, would you?

BERNIE:

A rights owner can.

SPEAKER 9:

Right.

BERNIE:

Yeah.

[INTERPOSING VOICES]

BERNIE:

A rights owner can. A rights owner can issue their work. The rights are nonexclusive, which means they’re nonexclusive to you. Leaving the rights owner in the exclusive position to licence their work in any way they choose.

SPEAKER 9:

So I could negotiate with Lawrence to have a commercial licence.

BERNIE:

Yes.

SPEAKER 9:

But I can negotiate with you to have a non-commercial licence for my work of art? Is that what you’re saying?

BERNIE:

If I’m at different rights owner then you.

SPEAKER 11:

But if you license to me commercially then it’s valid everywhere, isn’t it? You can’t just do it with me.

SPEAKER 9:

That’s confusing then.

[LAUGHTER]

BERNIE:

Oh, make it available to the public. Yes.

SPEAKER 11:

Because once it’s issued, it’s issued.

BERNIE:

Yes. Of course it is. But what I’m saying is the rights owner is still in control. If you make this Creative Commons licence available non-commercially that’s fine. But you can then do what you like. You could make another work, or the same work, available on commercial terms. That’s fine.

ALMA:

I think sectors do sit nicely, for example, it’s slightly different but anybody knows that copies of programmes put onto YouTube illegally are great creators of business for the rights owners. Now the rights owners could choose themselves to make that content free available and some do. The OU puts a percentage of it’s course materials in OpenLearn. They’re freely available to the user. But it doesn’t mean to say we don’t make that same material as part of our courses. We charge students to study with us. I think what Bernie’s trying to say is the control lays with the –

BERNIE:

The rights owner.

ALMA:

– the rights owner.

BERNIE:

If you make a work available under commercial – Creative Commons commercial licence, the fundamental basis of Creative Commons is you’re getting no payment. Right. So if you licence your work on a commercial licence, you’re not going to get any money for that. But as a rights owner you can do that because you’re in control. But if you want money and you’ve already issued a non-commercial licence and they come back to– you do not have to issue them with a Creative Commons commercial licence. You can give them permission on commercial terms and ask for money. You can create your own licence.

SPEAKER 4:

So you’re not limited –

ALMA:

It makes sense.

SPEAKER 4:

– by the work you’ve done. You’ve put into Creative Commons.

BERNIE:

Yeah.

SPEAKER 4:

It doesn’t limit –

BERNIE:

No.

SPEAKER 4:

What you do with that –

BERNIE:

No. Not at all.

ALMA:

That’s exactly right.

BERNIE:

It doesn’t limit at all. That’s the beauty of it. Yeah.

SPEAKER 11:

If I want to make any money don’t do the commercial content.

BERNIE:

Yes.

SPEAKER 11:

Right.

BERNIE:

Because you do not get payment for once you put it out there under commercial Creative Commons licence.

ALMA:

Come and see me.

BERNIE:

OK. Thank you very much. We could go on and on. At least I could. Yeah. Thank you.

End transcript: Training video

Training video

Interactive feature not available in single page view (see it in standard view).

The training video is designed to raise your awareness of copyright and other issues that may impact on your own content, or the content you may be accessing from other sites or areas for use in your OER. It may not provide all the answers you look for, but hopefully it may prompt questions and you may be alerted to raise and seek solutions before you publish your OER. There are also a few exercises in the video that are republished here, with comments that you may find useful.

If you place copyright in your OER plan and tackle all the associated considerations required for your particular content, you will not only manage the risk to your institution at an acceptable level but feel more confident about copyright. You will also feel you have done a good job and be able to move onto your next project without that feeling of unease because copyright had not been tackled as part of the overall project plan.

The video discusses:

• Creation of copyright work: How easy it is to create an original copyright work capable of copyright protection under CDPA 1988. (The ‘birthday card’.)
• Protection of copyright work: No formalities (registration procedures) are required in order to get copyright works protected under CDPA 1988. Protection is given worldwide under conventions such as Berne and UCC (Universal Copyright Convention).
• Identification and clearing of third party rights, using content in a birthday card as an example.
• Copyright ownership: Exploring the issues of copyright ownership in the absence of a contract. It also looks at copyright ownership considerations involving collaborations.
• Planning, risk and ethics: The discussion in the video emphasises the importance of timely planning to minimise risk to your institution and consider any ethical issues that may arise, for example involving children or other vulnerable groups.  Copyright does not operate in isolation. The video raises some ethics awareness for your institution such as it is not always about having the right to do – but doing the right thing!
• Licensing Creative Commons:  The characteristics of Creative Commons [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] licensing are explained and discussed with some exercises to further illustrate how Creative Commons licences work and to clear up any misunderstanding that may prevail about them. (For example, that Creative Commons is an organisation that has created and made available a suite of CC non-exclusive licences for the licensing of copyright works without payment to the general public. Creative Commons does not give permissions on behalf of rights owners – it provides the licences for rights owners to use.)