How can third party material be included in an open educational resource (OER)? (29 March 2011)

It is not possible to relicense other people's copyright-protected work without their permission.  Simply ignoring the issue is likely to result in an unusable open educational resource (OER) for users concerned with respect for copyright, or with a need for certainty and quality.

There are four suggested approaches to dealing with third party material to be included as part of an OER:

  1. The most certain approach is obtain the required permission.  That permission may have already been granted (e.g. by the owner having previously licensed the work under a CC licence that allows relicensing under your choice of CC licence), or the permission may have to be sought specifically (with, in many contexts, a high risk of denial or no response).
  2. Rely on one of the statutory permitted acts, which, in limited circumstances allows use of the resource.  However, these statutory provisions require risk judgments to be made (e.g. the requirement to judge fairness in relation to fair dealing) and will vary between jurisdictions, introducing uncertainty for reusers of the OER.  To some extent, creators of OERs may be able to rely on the statutory exception covering fair dealing for criticism and review.  This requires that acknowledgement of the source is given, and that the purpose is for criticism and review (not merely for illustration, as might be the case with many teaching materials). The use must also be "fair"  – putting up a substantial amount of someone else’s work with a commercial value on an openly accessible website is, at one end of the spectrum, most unlikely to be fair, whereas giving a critique of someone else’s views expressed in a few lines is likely to be fair at the other end.  There is, inevitably, a range of shades between. Where reliance is being placed on the fair dealing for criticism and review exception, the extent and limits of that must be made clear to users, and again, it should be clear that those inclusions are not CC-licensed.
  3. Strip materials of third party copyright material before submission, but include flags to what has been excluded.  E.g. “[A clip from the film “Legal Eagles” was embedded in the original resource at this point, but has been removed for copyright reasons]”.  This allows the end user to know what was there, and, if important, to find a licence to use that resource, or to insert an alternative (licensed) resource which still meets the pedagogic objective.  This is a safe approach, but might leave the end user with quite a lot to do to use the resource.
  4. Where the creator has a licence or permission to do so, put the materials up in their entirety, but clearly mark third party material as not included under the CC licence, and warn users that it is their responsibility to clear the right to use the third party copyright parts.  The third party copyright material could be included separately as an annex to make it clear that it’s not covered by the CC licence, or could be marked appropriately within the rest of the materials.  This approach has the advantage of letting users’ read/see/hear the complete resource, but may lead to widespread infringement if users do not heed warnings, to the discredit of OER generally.
Dealing with third party materials within an OER may seem complex and discouraging, but failure to address the issue risks non-compliant materials being disseminated widely, and the ensuing chaos that possible withdrawal of those materials might bring if the copyright holder objected, the reputational risk to user, depositor and those involved in OER generally, as well as possible legal damages and costs.  If the copyright issues are addressed, certainty and confidence are the benefits.

Finally, it’s worth pointing out that with future creation of resources, authors might have in mind the possibility of them being disseminated via a CC licence, and therefore avoid third party materials, or select third party materials which are suitable for such an approach:  the best resource in pedagogic terms is unlikely to be an useful resource for very long if it includes unlicensed Disney film clips, for example. For more on the legal risks and consequences involved in OERs, refer to http://www.jisclegal.ac.uk/oer.

For details of assistance currently available under the JISC / Higher Education Academy OER IPR Support project, visit http://www.web2rights.com/OERIPRSupport/index.html.  

http://jiscleg.al/FAQThirdPartyOER

Posted on 29/03/2011