(i) The project team would like to know where liability lies in the event that a third party rights holder claims unauthorised use of their material.
(ii) Secondly, If a project partner does not disclose ownership of background IPR through a simple oversight, is the individual project partner liable or is it the OER project team who have uploaded the content?
(i) The short answer is that it is likely that the copier of the work will have to defend/justify their copying when a rights holder alleges infringement of copyright in their work. So if a rights holder claims that copying carried out by a project member infringes their copyright then the institution (if the project member is an employee of the educational institution) must show that their use complies with the laws of copyright (essentially whether the use is fair dealing or they have a licence which permits the use).
A number of infringements can take place.
- It may be an infringement to copy the work onto a website.
- It may be an additional infringement to make that infringing copy available to the public (by the institution that publishes the infringing work)
- It may be a further infringement for a user of the website to copy the infringing work.
The reality is that pursuing the institution is the easiest route for a rights holder.
(ii) If a project partner does not disclose ownership of background IPR through a simple oversight, is the individual project partner liable or is it the OER project team who have uploaded the content to JorumOpen and other sites?
The short answer is that it is likely that the institution as employer will be the legal entity that would be pursued for infringement because redress in the form of payment for the copying is what the copyright owner seeks.
Whether a defence that the infringement was the result of an oversight would be upheld is a question of fact and degree in each individual case.
Strictly each incident of copying without permission may be an infringement. As mentioned above a number of infringements can occur when an infringing copy of a work is copied further.
The risk is real. Take for example a publisher such as Getty Images. They will want revenue for any copying of images which they are the copyright holders of and have been known to aggressively seek compliance with their licence terms.
Mitigation may be enhanced where the institution can demonstrate that they have acted in good faith and had taken reasonable steps to prevent and avoid infringement. This is clearly a risk assessment for the institution. Where a risky venture like copying material which is of uncertain provenance is undertaken the institution would need to demonstrate that they assessed the risks and took reasonable steps to prevent infringement.
A court, for example, may look at what steps were taken to prevent infringing third party material from being copied or what copyright law training did those dealing with the work receive from their employer to raise their awareness of the likelihood of copyright infringement.
Although providing facilities for infringing copyright or assisting in the making or distribution of infringing copies is also treated as an infringement and is referred to as secondary infringement (visit http://www.jisclegal.ac.uk/LegalAreas/HostingLiability/ISPLiabilityOverview.aspx#_Toc183596277 for the application of secondary infringement in these circumstances). It is likely that actual knowledge or reason to believe that copyright had been infringed in making the infringing copies, is required for liability for secondary infringement.
Simply providing the computers and networks that are being used to infringe copyright is in itself unlikely to raise liability. However, an institution is under a duty to take action once it has actual knowledge of infringing material on its computers or servers (such as by a notice sent on behalf of the copyright owner) or, through some other means, ought to have been alerted to the likelihood of an infringement (notice and take down procedures).