The Perils of Policy: Potential OER Pitfalls of Copyright Policies and OA Legislation
Transcript of The Perils of Policy: Potential OER Pitfalls of Copyright Policies and OA Legislation
The Perils of PolicyPotential OER Pitfalls of Copyright Policies and OA Legislation
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Why “Perils”?
StarringSharon E. Farb
UCLA Associate University Librarian for Collection
Management and Scholarly Communication
L. Amy BlumUCLA Interim Vice Chancellor
for Legal Affairs
Kim S. KovacsUCLA Executive Director of Federal Relations
$1,383UCLA Admissions Office estimate for
books and supplies for an academic
year for undergraduate students
Episode One
UCLA Context
36-38%UCLA undergraduate students
receive Pell Grants
55%UCLA undergraduate students
receive some federal, state, or
campus financial aid
Episode One
UCLA Context
49%UCLA undergraduate students graduate with loans to pay back
Episode One
UCLA Context
Few “Textbooks”Course Materials in Many Formats
Episode One
UCLA Context
Instructors for the Same Class Change FrequentlyFocus on Research over TeachingIT Challenges
Episode One
UCLA Context
UCLA Library Affordable Course Materials Initiative
OverviewIncentivizes Instructors
Integrates Collections
Digitizes Special Collections
Broadens Access
Lowers Costs
Achieves Educational Objectives
UCLA Library Affordable Course Materials Initiative
Programmatic ChallengesScalability and Expansion
Customized approach to each applicant
3,000+ teaching faculty/lecturers but only
~300 librarians and fulltime library staff
Quantity and variety of course materials
Differing AgendasMotivation to implement
changes in syllabus
Focus on quantity over
quality/curation
Episode One
Why “Perils”?
Legal and Policy Issues
Academic Freedom
Fair Use
Orphans
Persistent Access
Legal Representation for Authors
Introducing Amy Blum
The Perils of PolicyA Lawyer’s Perspective on Policy Implications of OER
Episode Two
OverviewWhy Copyright Matters in OERs
Course Materials versus Publications
Legal and Policy Challenges regarding OERs
Copyright Act
Why Talk about Copyright?
Myths / Concerns• Copyrights “lock down” use of content.
• Journals and other commercial enterprises
hold copyrights and prevent use or charge
fees to profit off students.
• Copyrights prevent universities from using
content in classes.
Copyright Act
Purpose of Copyright“The primary, objective of copyright is not to reward the labor
of authors, but [t]o promote the Progress of Science and
Useful Arts. To this end, copyright assures authors the right
to their original expression, but encourages others to build
freely upon the ideas and information conveyed by a work.
This result is neither unfair nor unfortunate. It is the means
by which copyright advances the progress of sciences and
art.”Justice Sandra Day O’Connor FEIST PUBLICATIONS, INC. v. RURAL TEL. SERVICE CO., 499 U.S. 340, 349-50 (1991).
Copyright Act
Copyright OwnershipUnder copyright law, the creator of the original expression in a work is its author.
The author is also the owner of copyright
unless there is a written agreement by which
the author assigns the copyright to another
person or organization, such as a publisher.
UC Policy
Individual Ownership and PolicyUniversity of California Policy: Copyright ownership resides with the originator of the work if it is:
• Scholarly/Aesthetic Work: Created by faculty and designated academic
employees resulting from independent academic effort
• Personal Work: Developed by a university employee outside the course
and scope of their university employment and without university resources.
• Student Work: Produced by a registered student without the use of
university funds (other than student financial aid) that is produced outside
any university employment.
UC Policy
Ownership of Course MaterialsUniversity of California Policy on Ownership of Course Materials:
• Course Materials Include: Work prepared for use in teaching including lectures,
lecture notes and materials, syllabi, study guides, bibliographies, visual aids,
images, diagrams, multimedia presentations, web-ready content, and educational
software.
• Copyright resides with the Designated Instructional Appointee who creates the
material. DIAs are university employees who serve as Instructors of Record and
have a general obligation to produce course materials.
• University only has a royalty-free perpetual license to use course approval
documents, not the course materials.
Copyright Act
What Are the Exclusive Rights?Bundle of Rights:
• Make copies of the work.
• Make derivative works based on the
original work.
• Distribute the work.
• Perform the work publicly.
• Display the work in a commercial
setting.
The owner of a copyright may license
these rights to others.
Episode Two
Relevance to OERs?Our faculty own the copyrights to their course materials and control how it is used.
Our faculty own the copyright to their scholarly work . . .
But – they often assign those rights to publishers.
Episode Two
What Can the University Do?Rely on exemptions to the Copyright Act.
Assist faculty with retaining their copyright when negotiating with publishers.
Develop open access policies.
Copyright Act
ExemptionsClassroom Teaching (Section 110(1))
TEACH Act (Section 110(2))• Distance learning
Fair Use (Section 107)
Copyright Act
TEACH ACTTechnology, Education and Copyright Harmonization Act (17 U.S.C. §110(2))[TEACH ACT]:
• Safe harbor that protects the transmission of a work from copyright infringement
claims provided the transmission meets eleven specific requirements
• Requires limiting use to students enrolled in a specific class
• Cannot transmit textbook materials, materials "typically purchased or acquired by
students," or works developed specifically for online uses
Copyright Act
Fair Use
Four Factor Test:• Character of Use (commercial versus
non-profit educational; transformative)
• Nature of Copyrighted Work (fact versus
imaginative and published versus
unpublished)
• Amount and Substantiality of Portion
Used
• Market Effect
Episode Two
Open Access Policies Can Help
A policy that grants rights to the
institution upon creation of content
prevents an author from granting all
rights to a publisher.
Episode Two
Faculty, Negotiate your CopyrightLibrarians can assist faculty with ensuring they retain their copyrights or specific use rights.
Faculty should read their publishing agreements to specifically understand the grant of rights provisions.
Authors should modify publishing agreements to allow the author to retain rights.
Episode Two
Challenges
Academic Freedom
Privacy/ Publicity Rights
Increasing Complex Environment
The Perils of Policy
Government Relations Issues
Identifying Goals
Finding the Best Path
Avoiding Unintended Consequences
Introducing Kim Kovacs
The Perils of PolicyLegislative and Government Relations Aspects of OER
Episode Three
Identifying Goals
What Are You Trying to Achieve?• Open access to federal or state funded
research and materials?
• Lower cost of educational materials?
• Develop “free” education options like
MOOCs?
Episode Three
Finding the Best Path
U.S. Congress
State Government
Institutional Administration
Episode Three
Avoiding Unintended ConsequencesHave a Plan
Realize your timing needs to be long-
range and incremental.
Work with Diverse CoalitionsWho could partner with you? Think
creatively and broadly.
Cultivate Champions
Educate
Thank you!
Photo creditsMedia History Digital LibraryKyle AlexanderBill EbbesenSimon A. EugsterReed HutchinsonlaogooliCoral Von ZumwaltElena ZhukovaMark Holtzman, West Coast Aerial PhotographyGuyon MoréePadawaneSharon E. Farb
Questions?