Appendix 1: Rights and intellectual property

From Steeple

Contents 1 Appendix 1: Rights and intellectual property 1.1 Planning your Rights Processes 1.2 Rights Checklist 1.2.1 How is the proposed content being delivered for this project (media)? 1.2.2 What types of content are you planning to use? 1.2.3 Is the project subject to a collaboration agreement with another company or educational institution? 1.2.4 Is the project funded (or part funded) by another body? 1.2.5 Scheduling for clearances and approvals 1.2.6 Clearance budgets and content 1.2.7 Online user licensing for your project 1.2.8 Acknowledgements

[edit] 1 Appendix 1: Rights and intellectual property

[edit] 1.1 Planning your Rights Processes

The Open University, because of its teaching methods, is very structured in how it produces its content – operating in most instances like a publishing house and also often following practices found within the broadcasting industry. The OU would generally kick off all new projects with a Planning or ‘Start-Up’ Meeting. This is where the team first gathers to plan the production – for example the iTunes U project – to plan all key stages of production, including how rights and copyright may impact on any of the various stages of production, and build them into the process.

Whilst your institution may not have a formal planning meeting, there will inevitably be a process at the beginning where you will be putting together some sort of production plan that you need to follow through to meet your targets.

So when you have your first (planning) meeting you should include the person who will be responsible for advising on rights and copyright and clearing any third party content. As well as providing an opportunity for everyone to understand how the team fits together, it also allows the rights person to pass on advice and get any information s/he may require about the project which might impact on any rights or clearance processes. Everyone on the team will also know who to go to for any rights/copyright related queries.

You’ll probably find that after the initial planning meeting the whole team may not gather again for quite some time, but forward planning of all rights and copyright issues will minimise hiccups later in the production process when (perhaps) you need to be concentrating on the more technological aspects of your project.

The following checklist is not exhaustive but, in providing some pointers, we hope it will help you to think about all the issues surrounding rights and copyright for your project.

[edit] 1.2 Rights Checklist

You should have a checklist prepared for taking to the first planning or production meeting of your project, so that when you leave the meeting you know how you are going forward – or what issues are still outstanding for you to pursue.

Having a checklist also ensures you ask the right questions and pass on the right information to any appropriate people at the meeting or elsewhere, including third party rights owners.

Examples for your checklist:

1. How is your content being delivered for this project (type of media?)
2. What types of content are you planning to use – existing, third party etc?
3. Is the content already being used in other ways?
4. Is the project subject to a collaboration agreement with another company or educational institution?
5. Is the project funded (or part funded) by another body?
6. Scheduling clearances etc
7. Clearance budget and content issues
8. On-line User Licensing for your project
9. Acknowledgements and credits

[edit] 1.2.1 How is the proposed content being delivered for this project (media)?

• own website
• streaming, podcasting, open access, password access, downloadable, non downloadable
• third party website (this is where you are putting the content onto a website which may be governed by its own terms and conditions, for example iTunes U). Do these conflict with your project requirements?
• DVD/ROM or any other offline delivery format
• mixture of the above or other formats

[edit] 1.2.2 What types of content are you planning to use?

Existing course materials (Staff) (excluding third party materials)

If you are planning to use existing course materials, you need to check that your institution’s terms and conditions of employment permit this new delivery of materials. There may be instances where copyright rests with staff – or member of staff needs to be consulted on any new use of materials where they are named as authors. Copyright in relation to employment contracts varies across educational sectors and types of materials authored. These materials may also be subject to some existing contractual arrangements which may not be obvious until you check. There may also be materials which are owned by members of staff because their authorship does not fall into employment contract terms. So it’s worth checking.

New–authored in-house and commissioned

If you plan to create new materials for this project, you need to be aware of your Institution’s terms and conditions of employment and how copyright is assigned. If you plan to commission materials, ensure your contracts are explicit in assignment of copyright to your institution, ensuring that the commissioned authors warrant that the materials created have been originated by them. It is standard practice for your institution to own copyright on any materials you commission – so avoid contracting (and acquiring rights), unless under very exceptional circumstances, just for a single project. If the commissioned materials are to contain any third party content, ensure that the contract places the responsibility for clearing (and paying for) with the author. There may, however, be instances when your institution may choose to clear the material, and this needs to be conveyed appropriately in the contract, including costs and guidelines for submitting content requiring clearance. Any content provided and owned by staff (such as photographs, etc) requires a formal permission. This could take the form of waiver or a simple confirmation by email which includes all uses required.

Will you be using third party content?

If no – ensure this decision is recorded and everyone is aware that this is the position and no changes permitted. Introducing third party materials further down the line when none have been planned is likely to impact on schedules and budgets, which have not been explored or planned for.

If yes - go over the types of third party content planned (print, music, footage, stills/images/artwork – commissioned authors etc – content owned by staff – e.g. photographs) and ensure a clearance process is built into the overall production schedule.

If the third party materials are contained in existing materials (above) then existing permissions/licensing needs checking before reclearing.

Third Party content in iTunes U

In the case of iTunes U, using existing materials from OU archives, the materials are chosen by the producer and then checked by the Rights person for cost and any contractual issues which may have a restriction. (See Managing Your Content). The sensitivity of materials is also checked and in some rare instances these may be considered unsuitable for iTunes U. However in most cases where sensitive materials are involved (personal case studies, for example) because of the type of public distribution involved we would seek agreement from subjects (even where we previously had permission) for the material to be re-used in this way. So, dealing with rights issues is not always about having the right to do something, but behaving appropriately and fairly in particular circumstances.

Is your content already used in other ways?

If Yes, what are they? – List all history of uses, including as course material. If this isn’t already known then this is something you’d need to find out. Some of the content may be subject to other contractual agreements (see Existing course materials). Some of it (containing third party content) may also be already cleared for your purposes, so this would obviously save you having to reclear it. Keeping a history of how your content is used, including any contractual arrangements, is useful for any future strategic planning purposes. This is important because strategically and operationally it could save time and money. It also ensures your institution becomes aware of any duplications of content across different licensing arrangements with third parties – or in different platforms owned and controlled by your institution.

Managing your content (Record-keeping)

It is important to keep records of your products (projects) and their content, including any content subject to collaborative agreements, third party content and the rights clearance levels obtained. This record will facilitate any re-use of content on future projects. The record should also illustrate any rights owners you’ve contacted, without response. There will also be record of any content where you were unable to identify rights owners and where you proceeded on an ‘Await Claim’ basis.

There may also be some third party content you have used (without clearing) under some of the Permitted Acts (such as Criticism or Review) from the Copyright, Designs and Patents Act (1988). This all needs to be recorded.

This record will help you monitor any outstanding clearances, instigate chase-ups and help you in your risk management decisions.

You should log a date in the process which facilitates your review of third party content before it goes live. This date should allow for the content to be pulled if you think it is too risky to use without permission, or perhaps proves too expensive.

When all the content is logged with clearance levels, costs, etc and the project is concluded, the log should be placed somewhere central (with all contract documentation) or in a place which is accessible by appropriate staff. It is also important to maintain the log with any updates etc.

Managing the content for iTunes U

With a few exceptions, most of the materials chosen for iTunes U comes from OU existing products (content). Therefore in order to choose content for iTunes U, it’s fundamentally important that there are records of existing content in place. So, given that there are already records in place for the source of the content, all that was needed for iTunes U was a simple spreadsheet. The spreadsheet records (and references) the original products in which the materials appeared and lists the third party archive materials, people, footage, music, stills and costs, etc. This means that reference to original product documentation and contracts is recorded in the Spreadsheet. The original products (content) have been broken into individual chunks and constructed as an album (collection of chunks) for iTunes U. Each album is listed on a spreadsheet and provided to the Rights person to clear and approve content. Note: the content has already been vetted by the Rights person at the beginning of the production process and advice on any contracts, costing etc given.

The content contained in the spreadsheet does not go live on iTunes U until the spreadsheet has been approved by the Rights person.

[edit] 1.2.3 Is the project subject to a collaboration agreement with another company or educational institution?

If Yes, you need to see the contract and find out what obligations are placed upon your institution which may impact on your level of clearances and use. If you’re not experienced in reading contracts seek advice from the person who was involved in producing the contract. It may be, for example, that the other collaborator has rights which permit them to use the content for their purposes; and/or shared copyright; placement of logos etc.

The other company could be a third party website which is going to ‘host’ your content and any clearances need to cover this. If this is the case you need to consider whether any rights of use pass to the third party website owner when uploaded and whether this has any impact on how you propose to make your content available on this website. For example, use of your content may fall within terms and conditions and control of a third party site. Are you able to construct your own ‘user arrangements’ within this third party site? Check out any collaboration agreement(s) and ensure it does not impact negatively on your project objectives.

[edit] 1.2.4 Is the project funded (or part funded) by another body?

This could be as a result of a bid, for example, which has enabled your project to be developed. If so, the contract needs to be checked to see if any obligations are placed on your institution as a result of the funding. If so these need to be understood and provided for. This could be a simple acknowledgement with logo – or a more complicated sharing of rights. Does this impact on any of your other obligations or agreements with other third parties (e.g. including the third party website if that’s how your content is being delivered).

[edit] 1.2.5 Scheduling for clearances and approvals

You need to ensure all your clearances and use of content is approved and ready to ‘go live’ well before the ‘going live’ date. So it’s useful to set a ‘cleared by’ date built into the overall schedule, followed by an ‘approval’ date. This ‘cleared by’ date should be replicated in your own clearance schedule along with any chase up dates to rights owners. Your chase up dates should also prompt revisiting materials which you may want to ‘approve’ even though you have not had a response after chase up - or issue a notice not to use – in plenty of time to the team so that it has minimal effect on any surrounding materials.

You should allow plenty of time for clearances – around three to four months to complete – though the majority are likely to come through within weeks. The longer period allows you to do chase ups – which should be roughly every three or four weeks. If there’s not too much third party content, then your clearance period can be adjusted accordingly, but ensure no third party content is made live until you have approved it.

[edit] 1.2.6 Clearance budgets and content

The budget may dictate, to some degree, the amount of third party material which can be used. Some projects set aside ten percent of the overall budget for rights clearances. However, whatever you decide, some types of materials will eat into your budget very quickly.

Recorded music – this can be very expensive, and in some cases even unclearable – so it might be worth advising against the use of any commercial music – or specifying that this be dealt with on a case by case basis.

There are other types of recorded music you can explore:

Library (or ‘mood’) Music - there are more outlets available now for what is called ‘library’ music where you can buy music under licence and use in perpetuity.

Footage – ranging from movie footage to more general interest type footage. There are many outlets which licence footage including all the broadcast stations – such as BBC (Worldwide), C4, ITV, etc. They are usually charged on a duration basis. Use of footage should be kept to a minimum, if possible – seconds, not minutes. Many footage companies charge by the second, often with a 30-second minimum. So using 31 seconds could incur a charge for a full minute.

Images (stills) - especially artwork, may also be expensive, depending on where you have sourced them. Any artwork controlled by DACS (Design Artists Copyright Society) who look after the rights of modern artists is notoriously expensive – so use sparingly. Remember DACS do not generally supply the images – so, as well as clearing the rights with DACS, the image may still need to be sourced and paid for.

Book extracts etc (other than small quotes which you would not need to clear) are usually charged on a per thousand words basis.

When you have gathered your information on the types/sources of materials that are likely to be used/reused, you could negotiate with the rights owner and agree a special rate for your project. This is highly achievable, especially where the materials have been used before and should be done quite early on in the project so that some types of content can be rejected and others can be encouraged.

[edit] 1.2.7 Online user licensing for your project

The user licence you choose should match your level of expectations for your project. For example:

Open Educational Resources (OERs) – If you are making your content available as OERs – you may consider adopting a Creative Commons (CC) Licence - http://creativecommons.org/about/licenses/meet-the-licenses. This aims to make copyright content more ‘active’ by ensuring that content can be reutilised with a minimum of transactional effort.

There is great concern worldwide that too much copyright material is left inactive in archives because the process of negotiating the licence is too time-consuming or expensive, even where the copyright owner does not want to make money. Now that we have a vast array of digital technology that can use to present much of this material to the world cheaply and rapidly, more institutions are considering how they might allow greater access to their archives/knowledge.

Educational institutions (such as the OU) who are exploring new ways of making their content available to meet various marketing and strategic objectives are becoming more comfortable about embracing CC licenses. Users can easily understand the symbols and terms and the easy way use of content is explained. The licence is constructed in two stages – the first stage explains briefly (short form) how users may use the content and the second stage provides a longer more detailed wording of the licence. Most users, however, look at the short form and are able to assimilate whether that suits their needs or not. The CC licence preserves the author’s moral rights and any other rights not granted by the CC licence. All uses of content under a CC licence requires that attribution to the author is maintained.

Why Choose Creative Commons?

• It is becoming standard with the open content communities
• The use of CC licence displays a mark of commitment
• The terms are easily understood
• You can choose licence to suit your business model – for example, it has quickly become apparent that the majority of people prefer to license out under the non-commercial condition. This means they reserve the right to focus on the commercial side of their business (and the CC licence has initially provided a showcase for them) and to concentrate on setting up a traditional commercial contract with a client.

Characteristics of CC licence

• broad grant of licence
• not subject to individual negotiation
• standardised terms
• choose individual variation to suit
• easy to understand symbols

Types of CC licence

1. Attribution Non-Commercial – No Derivatives - may be shared, but cannot be changed.
2. Attribution Non-Commercial Share Alike – may be shared and can be changed, built upon and licensed back into the community under the same licence. Note: many OER communities use this licence
3. Attribution Non-commercial – can be changed, built upon and whilst attribution to original author must remain any derivative works do not need to be re-licensed on the same terms.
4. Attribution No Derivatives – permits redistribution, commercial and non commercial. Must not be changed in any way and credit to original author to remain.
5. Attribution Share Alike – can be changed, built upon – even for commercial reasons. Must be acknowledged and any new creations must be licensed under the same terms, including commercial use. Most useful for software.
6. Attribution – this permits changes to be built upon, even commercially, and only requires that acknowledgement remains for the original creation. This is the widest licence available.

Other types of licenses

As the copyright holder of the content you wish to make available under an ‘open’ access licence, you can create your own licence, adopting extracts from CC licence, for example. However this should only be done if the CC licence does not meet your needs. It is not worth putting additional effort into this if there is an easily available template.

Does all the content need to be made available under CC Licensing

Where you can, make all the content available under CC licensing terms (if you choose that type of licence). However, you need to ensure all third party materials are cleared to that level. It’s possible to have a CC licence for all your wholly-owned content and for all third party materials to be excluded from CC licensing terms. This is particularly relevant where users are invited to remix content. Third party content would not be subject to remixing etc – but needs to be used in its original context. The Open University does this at times and ensures users are aware through notification that the third party materials are not available under CC licensing – but for use in context only.

The Open University and Creative Commons (CC) Licensing

The Open University has adopted a CC licence (attribution, non commercial, share alike) for its OpenLearn website (openlearn.ac.uk) which hosts some of its content online as part of its Open Educational Resources (OERs) strategy. This permits registered users to remix and share their remixed content under the same licence terms. Unregistered users may browse the structured learning content and use it in accordance with the licence terms. There’s also provision on this website for content not to be made available under CC licensing (such as third party materials). So it doesn’t have to be one or the other - you can choose whichever licence suits your needs and your content.

The Open University and ITunes U vs OpenLearn

The Open University has placed chunks of its materials on a dedicated part of the ITunes website and use is in accordance with iTunes terms and conditions. The content is available for downloading for personal and non-commercial use only. All material uploaded to iTunes is also uploaded under their terms and conditions. You need consider this before deciding to place your materials on an iTunes website, to ensure it fulfils your needs and there are no contractual issues preventing this. At the moment the iTunes model does not facilitate an OER licensing arrangement, such as CC. However that may be changing in the very near future.

Whilst OpenLearn is structured for users to test their learning capabilities, iTunes provides a taster of OU materials to watch or listen to without any structured learning outcomes.

Each platform provides users with different experiences of OU materials – OpenLearn – structured to provide a learning experience for potential students and also to educationalists interested in contributing to the OER ideology. And iTunes is more aimed at audiences who may be curious about the OU or its subject matter and the type of content it provides. Each offers users different ways of enjoying education and raising the awareness of the breadth of what OU has to offer.

[edit] 1.2.8 Acknowledgements

Use of all third party content needs to be acknowledged appropriately. In books, it’s usual to see list of acknowledgements at the back of the book. However in digital online website use this is inappropriate. All acknowledgements should be alongside the third party content and any design of the website should plan for this. When content is downloaded the user should be in no doubt who owns the content and that should include your content as well as any third party material. Many institutions forget to credit their own materials appropriately as well as other content on their site. Try to make it easy for users to find details of copyright owners, including your own institution, enabling them to credit the material appropriately in any further use.

Terms and conditions

Construct appropriate terms and conditions of use for your website, taking care to ensure that any content sensitive in nature and perhaps is aimed at a particular age group is clearly identified. If your content is aimed at UK audience for any particular reasons then that should also be made clear. Ensure all users agree to terms and conditions before use. If you’re inexperienced in creating terms and conditions, it may be best to seek professional help from an appropriate legal organisation.

Take down policy

During your initial meeting you need to put in place a process for taking down materials. This should include having someone who is given the responsibility for authorising removal of content, with agreement that no-one acts independently from the policy. The policy should then be circulated to everyone and enshrined as part of the regular process of production. The reasons for take down could vary from refusals of third party rights (although further negotiation should be undertaken before that occurs) to issues of sensitivity or decency. Note: any take down regarding legal issues which may involve lawyers should always be referred higher to ensure any defence which may be called upon is not jeopardised.

Rights conclusion

Hopefully by the time you’ve finished reading this you’ll have come to understand that rights and copyright are not as daunting as perhaps you first thought. Planning (with the aid of your check list) is your greatest tool, and will allow you to cope with most eventualities. If you plan your rights processes you will save money, time and minimise your stress levels. You should also have an eye on the future and ensure all your content is logged (managed). If you look at the OU’s examples of sharing and showcasing content through iTunes U (site hosted by iTunes (third party)) and OpenLearn (OU website) you’ll see that this has been made easier by managing the content so that it can be called upon whenever the institution’s strategy requires it. It makes sense, particularly as universities are increasingly required to adopt business models which look for wider use of their content through a range of platforms.

You may also find it useful to visit http://copyrighttoolkit.com/ where you’ll find more information on copyright and clearance processes, including copyright exercises, videos and sample contracts.

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