What are the legal consequences of adopting an OER approach? (20 February 2011)

Although there are many benefits to the adoption of an open educational resource approach with regards to teaching and learning materials, the decision to adopt such an approach should be taken with an understanding of the legal consequences.

First, in legal terms, there is nothing special about ‘Creative Commons’ licences. Like all other IPR licences they grant permission to others for use of the work in question on the terms stated. As with all other licences, institutions should be clear as to the permissions being granted (which are liberal in nature) and to the conditions. On the other hand, the conditions which attach to each Creative Commons licence are legally enforceable. Reuse of the work will be infringement of copyright unless the user complies with all the terms of the licence.

Second, there is nothing which prevents an institution granting further permissions beyond those granted by the Creative Commons licence which has been selected, and that further grant of rights can be upon whatever terms the institution (if it is the copyright owner) sees fit. So, for example, an institution may grant a Creative Commons Attribution – Non-Commercial – No Derivatives licence with respect to certain teaching resources, but this does not preclude it later licensing commercial use of those resources in return for royalties, or licensing the making of derivative works on the condition that the institution gets to approve a draft before re-use. It should be noted that these further licences are not Creative Commons licences, however, and should not be referred to as such.

Third, Creative Commons licences are perpetual and irrevocable. It is not possible for an institution to apply such a licence to a work, and then sometime later change its mind. This feature is necessary so that those reusing open educational resources can be confident that their right to include, incorporate and potentially adapt the materials is ongoing.

Fourth, as with any other licence, the permissions granted and the conditions imposed will require interpretation. Because the licence is, in effect, an agreement by the licensor to allow reuse, what is meant by any particular term in the licence is down to the understanding of the parties, rather than any interpretation handed by law. It may be worthwhile, therefore, in certain circumstances, for a licensing institution to make clear what it considers to be, for example, non-commercial use, and make such a statement along with the licence.


Posted on 20/02/2011

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