Supporting education and research INTRODUCTION Charles Oppenheim Loughborough University [email protected]

Supporting education and research

INTRODUCTION

Charles Oppenheim

Loughborough University

[email protected]


FOUR FORMAL SESSIONS

• My introduction

• Creative Commons UK

• JISC/SURF joint work

• JISC-funded DRM study carried out by Intrallect Ltd.


TOPICS I WILL BE COVERING

• The key IPRs in the digital environment

• Recent developments – new laws, key court cases, how rights holders have responded to the challenges

• Practices in HE and FE that have IPR implications


IPRS OF RELEVANCE

• Copyright• N.B. tension between IPR owners and users

– but HEIs and FEIs are both creators and users

• Database rights• Performers’ rights• Trade marks (registered and unregistered)• Moral Rights• Patents


RECENT DEVELOPMENTS

• Law has swung in favour of IPR owners – lifetime of copyright; reduced exceptions to copyright; trade mark rights extended; restrictions on by-passing “technical measures”; communication to the public right; pressure to extend remit of software patents

• Good news for creators, bad news for users


ONE IMPORTANT COURT CASE

• British Horseracing Bureau versus William Hill• Decided by European Court of Justice – no

further appeal• Restricted application of database right – only

applies if you spent significant effort in creating the database in its own right; no right if database just fell out of other activities that were being done

• Does BT White Pages directory now enjoy database right?


1. Copyright / 1. Copyright / Database RightDatabase Right

2. Contract and 2. Contract and LicensingLicensing

3. Technological 3. Technological Protection SystemsProtection Systems

E-ContentE-Content

E-Content Protection:E-Content Protection:The Triple LockThe Triple Lock


PUBLISHERS HAVE NOT BEEN IN THE VANGUARD

• These moves have been led by the music, software and film industries – they have also been aggressive in suing for infringement

• Publishers have been content to cheer these other powerful lobbies on


ACTIVITIES IN FE AND HE OF RELEVANCE

• Plagiarism – software recommended by JISC Plagiarism Advisory Service may be of help, but in the end the problem relies on trust and willingness to check; N.B. students offering successful assignments on eBay

• Assignment of copyright by academics – see JISC/SURF talk later

• E-learning materials – see work of HEFCE/UUK Working Group on IPR in e learning at http://www.hefce.ac.uk/pubs/hefce/2003/03_08.htm

• Open access journals and subject-based repositories


ISSUES FOR INSTITUTIONAL REPOSITORIES

• Who has the rights - academic or institution?

• Guidance for academics on assignments/licences so that retention of required rights is encouraged

• Amendment of an assignment/licence must be done properly to have the desired legal effect ; JISC/SURF advice coming soon

• Potential academic freedom and employee contract issues


ACTION PLAN TO HELP IRs

• Policies on:– first ownership of copyright– joint copyright ownership issues– Use of particular publishers

• Encourage and guide academics to:– retain copyright, if possible– negotiate amendments to restrictive

agreements, e.g., – actively support journals and publishers that

have liberal copyright policies, including open access journals


TERMS IMPOSED ON CONTRIBUTORS TO AN IR, AND IR

POLICIES

• Needed for:– Copyright abuse– Moral rights issues– Click-through licences for disclaimers– Policy on article withdrawal/removal, i.e.,

notice and take down procedures


PUBLISHING ISSUES

• institutional publishing involves risks:– securing the rights to publish or warranties– plagiarism/infringement of copyright– infringement of other IP rights– defamation– Liability for provision of inaccurate information– contravention of particular local laws– Data protection– accidental/premature disclosure of confidential

information, findings, etc. – might damage chances of getting a patent later


SUMMING UP

• Purpose has been to give you a flavour of legal issues associated with digitisation in HE and FE

• Many issues NOT covered, e.g., digitisation of print materials held by libraries

• Time to discuss everything later in the discussion session


Towards Creative Education:

Lessons from the CC-UK experience

Prodromos Tsiavos

CC-UK Legal Project Lead


Agenda

Introduction

The Objectives of the Creative Commons Project

The Licences and How they Work

Internationalizing the Licences

The UK Discussion


Agenda

Introduction




The UK Discussion


Acknowledging the institutional ecology of Copyright Law

Copyright Sources: international treaties, regional economic organisations (EU), national laws

Licensing Schemes

Collecting Societies

Major Rights-holders and bottlenecks

Mutliplicity of roles and Challenges for the Education Sector

Property vs. Intellectual Property


Relevant EU Legislation (I)

Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (the Software Directive)

Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (the Rental Right Directive)

Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights (the Term Directive)


Relevant EU Legislation (II)

Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (the Database Directive)

Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (the Satellite and Cable Directive)

Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society


Relevant National Legislation (examples):

UK: Copyright Act 1988

Germany: Urheberrechtsgesetz von 1965


Tracing the flow of rights

• Content Creators

• Disseminators• Containers• Collectors• Entrepreneurs• Public

Institutions• Archives• Displays • Users

• Licensing Schemes

• Compulsory Licensing

• Employment Contracts

• Mass Licensing• Rights Markets

• Digital Rights Management Systems

• Educational Software

• Access Control Systems

• Institutional Information Infrastructures

• Tracing/ Searching Technologies


Agenda

Introduction




The UK Discussion


Creative Commons:making digital content more widely

available

• CC addresses legal problems in the area of global copyright law

• It is an NGO run by international lawyers and academics

• It is generously supported by the Center for the Public Domain and various other charitable foundations

• Its objective is to establish a viable middle ground between stringent copyright controls and the completely unfettered use of content in the digital age


Creative Commons: pursuing a viable middle ground in copyright law

• providing a set of user-friendly online licenses combined with a sophisticated search technology

• authors, musicians and other creators of content can use these licenses to protect some of their ownership rights, while giving others away

• the result is a new global standard or layer of copyright law promoting the dissemination of digital content and the free exchange of ideas


©All rights reserved;stringent

copyright laws

No rights reserved

Some rightsreserved

Contributing to high-

quality digital

content online


Agenda

Introduction




The UK Discussion


Three Expressions:Three Expressions:

Human-Readable: Commons DeedHuman-Readable: Commons Deed


Three ExpressionsThree Expressions::


Lawyer-Readable: Legal CodeLawyer-Readable: Legal Code





Machine-Readable: MetadataMachine-Readable: Metadata



Human-Readable: Commons Human-Readable: Commons DeedDeed


Machine-Readable: MetadataMachine-Readable: Metadata

Logo + LinkLogo + Link



Licenses:Licenses:

AttributionAttribution

No Commercial UseNo Commercial Use

NoNo DerivativeDerivative WorksWorks

Share AlikeShare Alike


Agenda

Introduction




The UK Discussion


Jurisdictional origins and future perspectives

• The original licences were drafted under US-law and in English

• Local legal versions today exist for Japan, Brazil, Finland, Holland and Germany

• CC is collaborating with local project leads (ie mostly academic institutions) in the various target countries

• The porting process / guidelines


Think Glocal

• The Creative Commons project is global in scope: seeking to reform intellectual property law in all major jurisdictions

• The project‘s success ultimately depends (i) on acceptance and use of the licences by consumers / end-users in many different localities and (ii) on the licences‘s enforceability in the courts

• Hence, the licences must be transposed into different jurisdictions and languages


Why is it legally necessary to offer international versions of the licences?

[consumer protection] (I)

• The problem of language

• According to the case law of the German BGH, standard terms and conditions for consumer contracts (AGBs) have to be phrased in German

• The French Loi Toubon required all contracts to be drafted in French; though the law is revised by now, free software licences such as the GPL are still regarded as invalid because they are in English

• The principal reason for these difficulties is the European Directive on unfair terms in consumer contracts



[moral rights] (II)

• The problem of waiving moral rights

• Differences between Anglo-Saxon copyright law and continental droit-d‘auteur systems

• Pace article 6 Berne Convention a global waiver of moral rights is not possible under (eg) German law

• This gives rise to complex questions in the case of derivative works and the Sharealike licence



[liabilities and warranties] (III)

• The problem of liablities and warranties

• Global disclaimers exempting licensor from any warranty or liability (eg sec. 5 and 6 CC) whatsoever are considered invalid under German law

• This is the case for both consumer contracts (AGBs) and non-consumer contracts (eg cases of grave negligence)

• Mandatory provisions of the BGB


Internationalizing the licences gives rise to important legal questions

• In international private law

• Copyright issues are governed by the principle of territoriality as set out in the Berne Convention

• Contractual issues encompass such questions as formation of contract, the consequences of non-performance, interpretation, warranty and contractual liability; refer to article 4 of the Rome Convention 1980


So how should we deal with these questions?

• Is it legally possible to have one generic legal text in English that is globally enforceable?

•Licencing under a multiplicity of different licences

•Interoperability clauses


Agenda

Introduction




The UK Discussion


The UK CC licence draft

The CC UK licence currently under discussion was drafted in collaboration with the BBC

The draft is much more readable than its US counterpart (and indeed than most other national versions) as it uses plain and simple language

The draft is also laudable in its intent to constitute a generic license for global use (rendering unnessecary the effort of manifold translation)


The UK CC licence draft: process (I)

CC-UK organisational structure (a):

•Hosting Institution

•Project Coordinator

•Legal Project Lead

•Legal Advisory Board

•Licence Drafting Team

•CC-UK mailing list


The UK CC licence draft: process (II)

CC-UK organisational structure (b):

•Public Project Lead

•Public Advisory Board

•Public Interest Organisations

•Creative Commons Network


The UK CC licence draft: process (III)

Open Sourcing the drafting process:

•Original draft by Law Firm

•Peer review by LAB and CC-UK mailing list

•Draft by the Oxford drafting team

•Peer review by CC-UK mailing list + Public organisations

•Focus groups/ interviews with artists

•Co-drafting with the BBC/ other public interest orgs

•Peer review by CC-UK mailing list/ LAB/ iCC

•Final draft


The UK CC licence draft: synergy

The role of the public sector in the UK:

•Re-inventing the public sector

•Creative Citizens

Involved public interest organisations include:

•BBC

•Tate

•British Library

•British Academy

•Channel 4

•Collecting societies


The UK CC licence draft: creativity

Input from focus groups:

•Arts Council Collaboration

•12 artists focus group

•Narratives

•Real life use of the CC web interface

•Developing new forms of licences


The UK CC licence draft: Issues

Legal:

•Interoperability (BBC/ Europe)

•Black holes

•Moral Rights

•Collecting Societies

•Bare Licence?

Strategy:

•Community building

•Bring the content out

•Beyond Licensing?


CC-UK in the educational context I:

Actors

-Commercial Educational Content Providers vs Open Content

-The role of Collecting Societies/ Trade Unions

-The role of (public) broadcasters (BBC/ Channel Four)

-The role of Museums (Tate)

-The role of Public Libraries (British Library)

-The role of Regulators (OfCom)

-The role of Public Service (The Arts Council)

-The role of Academic Institutions (JISC, Oxford, The London School of Economics)


CC-UK in the educational context II:

Tensions

•Content Creators/ Collecting Societies vs. Content Repositories/ Broadcasters:

•Different revenue models and their implications (commissioned vs self-standing works)

•Publishers vs. Content Repositories

•Questioning the role of public broadcasters

•Commercial vs. non-Commercial educational material providers (content vs. Service)


CC-UK in the educational context III:

finding and creating content

•The changing concept of authorship/ incouraging initative

•Copyright Education

•Find Available Material

•Searches

•Repositories

•Minimising costs

•Sharing Resources

•Encouraging Content Production


CC-UK in the educational context IV:

The Future

•Translation Issues

•CC-Europe

•Synergy

•Creative Licensing (CC-UK)

•Meta-Commons (CC-UK)


cases

magnatunes


[case One]

magnatunes




[case two]

European Schoolnet



[case three]

Code v.2


[case three]


[case four]

Tate d_cultuRe : d0wnloAd_saMple+cuT-uP: cultuRe


[technology interaction]


[case five]

Channel4: pix + mix




Contact Information:

Creative Commons

Creative Commons UK

Centre for Socio-Legal Studies

Wolfson College

OX2 6UD, Oxford

Unitied Kingdom

Prodromos Tsiavos: +44.7921.212.225

[email protected]


The Zwolle Project:Balance in Scholarly

Communication

Ralph Weedon

JISC Legal


The Zwolle Initiative

• Three conferences 2001-2004

• Copyright Management in HE

• The Zwolle Principles

• Optimal access to scholarly information

• Balanced approach to copyright

• Zwolle Group


Context: SURF & JISC

• In part grew out of Zwolle Initiative• Concern for scholarly communication in

digital age• Realisation that several stakeholders

involved in this communication• Project aims to assist the implementation of

the Zwolle Principles through guidance on:– Publishing Agreements– Copyright Policies


The Work Packages

• There are five in the JISC/SURF programme• Focus: copyright, access & communication

– Awareness and understanding of © & OA

• Packages I & II concern the relationships between stakeholders & a balance in rights held

• I deals with publishing agreements & the rights each stakeholder may require

• II on institutional copyright policies and also relates to institutional repositories


Publishing Agreements

• Author & Publisher relationship

• The Zwolle ‘Copyright Toolkit’

• The need for balance & consensus– Business models in the digital age

• Elementary rights

• ‘Model’ agreements and provisions

• Applicable to the Netherlands & the UK


Copyright Policies

• The author and the institution• Link to Work Package I• Short survey of sample policies – NL & UK• Practical guidelines• Aim to assist creation/revision of policies• Contracts of employment• National law


Institutional Repositories

• Context: expansion of take up of IR

• Current examples include:– JORUM– BioMed Central ‘Open Repository’

• JISC: FAIR programme

• SURF: DARE projects

• OAI initiative


Deliverables: IR

• IPR and the need for licenses with IR

• Model ‘user’ license

• ‘Notice’ & ‘Take down’ procedures

• Discussions with AUT & U UK

• Survey of other JISC work in this area


Context: Open Access

• The Open Access movement– Access to scholarly communication & the ‘digital divide’– Berlin Declaration

• HoC Committee on Science & Technology• PALS: Publishers & JISC - NESLi2• Research Councils• Alternative approaches to copyright & access

– Creative Commons– Copyleft– OA Journals such as BioMed Central


Consultation is a key

• Authors

• Librarians

• Institutions

• Publishers

• Professional organisations

• Research Councils

• In both NL & UK


Deliverables and Outputs

• Implementation and Advocacy• WP I:

– List of ‘elementary rights’: publishers & authors– Model publishing agreements and provisions

• WP II– practical recommendations on © policies– IR: model ‘user’ license

• + Notice & Take down procedures

– Encourage greater take-up of IR


Summary

• The projects are expected to last 6 months

• Results on:– JISC website– Zwolle pages of SURF website

• What do you think the issues are?

• Contact us at:– [email protected]– [email protected]


Lessons learnt from the JISC DRM Study

Ed Barker, Intrallect Ltd

[email protected]


International IPR study

• Aim: – Guidelines for UK HEIs on handling IPRs in e-

Learning• Funding:

– HEFCE in partnership with UUK and SCOP• Method:

– Five case studies to cover the spectrum of e-Learning programmes

• Further Information:– http://www.intrallect.com/HEFCE-IPR/


JISC DRM Study

Charles Duncan, Ed Barker, Peter Douglas, Martin Morrey

Intrallect Ltd

Charlotte Waelde

University of Edinburgh


Structure of Talk

• Background Information

• Study Methodology

• Results

• Recommendations


DRM Study

• Objective:– To make recommendations on the best

approach for JISC and the UK education and research communities to adopt in relation to DRM

• Background:– Funded under JISC Shared Service

Programme– Completed November 2004


contributing institutions

consuming institutions

repository

Non Trivial Example


Why is DRM needed?

• In General– Anyone can be a publisher– Easy to modify/copy – Ready access to digital resources

• For Education– To allow staff and students to use digital resources

with confidence that they are adhering to the law and rights holder’s wishes

– To allow rights holders to protect their digital resources


Scope of the Study

• Types of activity• Types of resources• Legal framework• Technology aspects• Uses• Digital Preservation• Architectures• Standards


Methodology

Methodology:

• survey

• use cases

• requirements

• options

• cost/benefit/risk analysis

• iterate


Generating Use Cases

• Wide group of users consulted– lecturers, librarians, funding bodies,

publishers, authors, data centres, government organisations

• 5 workshops• 125 Use Case summaries• 32 Fully developed• 7 Interviews/Focus groups


Use Case Example

• Use Case Summary – A learning technologist wants to adapt a

diagram from an existing published work into a multimedia learning object. They want to make it available to academics to use with their students on and off line.

• Primary Actor (and goal) – Learning Technologist (Adapt and share a

learning Object)


Rights Management

Recognition of rights

Assertion of rights

Expression of rights

Dissemination of rights

Exposure of rights

Enforcement of rights

DRMPolicyCreation

DRMPolicyProjection


Recognition of rights:

• Key Point:-– HE and FE staff are not always aware of rights

ownership issues

• Implementers need to provide clear guidance to staff on ownership, publication routes, assignment rights and procedures.

• Implementers need to ensure that staff are aware of rights clearance procedures.


Assertion of Rights

• Key Point– Confusion is caused by the large variety of

licences being used.

• JISC should work towards a common set of licences (or licence templates)

• JISC should investigate ways in which permitted uses and constraints can be supported in common licences and digital rights expression languages


Expression of Rights

• Key point– Digital Rights Expression Languages (DRELS)

can be used to describe permitted uses, rights holders etc

– Examples of DRELS include ODrL, MPEG, XrML

• JISC should investigate and recommend suitable application profiles of digital rights expression languages (DRELs)


Dissemination of rights

• Key Point– Methods for passing rights information are not yet

established.• JISC needs to be able to establish in practical

terms how DRM can be operated in the JISC Information Environment and e-Learning Framework

• JISC needs to provide a lead in the move to the use of globally unique identifiers from “theoretically possible” to practical implementation


Exposure of rights

• Key Point– The permitted uses of a resource need to

be shown to the user in a clear way

• Possible methods could be based on widespread use of symbols



Enforcement of Rights

• Key Points – Must be in legal position to enforce rights– Try to ensure access management without

impeding legitimate use

• Athens is the most widespread access management system in UK HE

• JISC is currently working on Shibboleth and Premis


Further Info

• http://www.intrallect.com/drm-study/

• [email protected]



Documents

Supporting education and research INTRODUCTION Charles Oppenheim Loughborough University [email protected]