Professor Anne Fitzgerald Queensland University of Technology Law Faculty Creative Commons Australia Creative Commons and the Digital Economy Seminar 3 of 4 2 November 2012 © 2012 Anne Fitzgerald. Licensed under Creative Commons Attribution 3.0 Australia. What is Creative Commons? a standardised system for licensing the use of copyright materials a suite of 6 standardised licences available in 3 forms: plain english (summary); legal code and machine-readable code Each licence grants baseline permissions to users to use copyright material that is, to copy, publish, distribute in digital form, publicly perform whether the whole or a substantial part of it on specified, standardised core conditions © 2012 Anne Fitzgerald.. Central elements of CC licences Baseline Permissions Core Conditions © 2012 Anne Fitzgerald.. Baseline Permissions Fundamental baseline rights granted by all CC licences: Reproduce Distribute Publicly perform On condition of Attribution Additional baseline permission granted in four of the six CC licences to create derivative works and Reproduce Distribute Publicly perform the derivative work © 2012 Anne Fitzgerald.. Core Conditions Attribution (BY) – attribute the author, and no false attribution This applies to all CC licences Non Commercial (NC) – no “commercial use” (as defined) No Derivatives (ND) – no changes allowed to original work Share Alike (SA) – changes allowed, but new work is to be distributed under the same licence as the original work * ND and SA cannot be used together © 2012 Anne Fitzgerald.. Licence combinations © 2012 Anne Fitzgerald.. CC BY Core condition: Attribution (BY) – attribute the author, and no false attribution Baseline Rights: Reproduce Distribute Publicly perform Create derivative works (and reproduce, distribute and publicly perform the derivative work) © 2012 Anne Fitzgerald.. http://creativecommons.org/choose/ Human-readable summary “Legal Code” Machine-readable code http://creativecommons.org/choose/ How do people use CC? Licensing out: use CC on copyright materials you create enable others to find your material online through using the standard search engines; give permission to others to lawfully use your material eg copy, on-distribute, post to a website, value add Licensing in: use copyright materials created by others that are licensed under CC enable you to find their material online through using the standard search engines; give permission to you to lawfully use their material eg copy, on-distribute, post to a website, value add The scope of re-use will depend on which CC licence selected © 2012 Anne Fitzgerald.. Open Access to research Open Access movement began in 1990s with concerns about access to research data (eg human genome project) and scholarly articles published in journals Growing dissatisfaction of research community about traditional business models operating in the digital environment: research conducted with public funds articles written and peer-reviewed by scientists and academics for free typically, copyright was assigned entirely to the publisher academics and public charged high fees by publishers for access to articles © 2012 Anne Fitzgerald.. Constructing openness Information management plan/strategy OA policy – defines the degree of openness See for example, QUT Library’s policy on Open Access (September 2012): http://www.library.qut.edu.au/about/planning/docume nts/POL_CDM_3.1.5.Open_Access_FIN.pdf Implementing OA requires: understanding of the legal rights and relationships involved Managing rights (especially copyright) to provide OA © 2012 Anne Fitzgerald.. Open Access to research Bermuda Principles (1996) - endorsed by the participants at the international strategy meeting on human genome sequencing Budapest Open Access Initiative (2002) defined Open Access to scholarly journal articles [see next slide] Bethesda Statement on Open Access Publishing (2003) - encourages faculty and grant recipients to publish their work under Open Access principles Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities (2003) – covers original scientific research results, raw data and metadata, source materials, digital representations of pictorial and graphical materials and scholarly multimedia material – supports open access publishing in OA journals or self-archiving in OA repositories © 2012 Anne Fitzgerald.. Budapest Open Access Initiative (2002) The literature that should be freely accessible online is that which scholars give to the world without expectation of payment. Primarily, this category encompasses their peer-reviewed journal articles, but it also includes any unreviewed preprints that they might wish to put online for comment or to alert colleagues to important research findings. There are many degrees and kinds of wider and easier access to this literature. By "open access“ we mean its free availability on the public internet, permitting any users to: read download copy distribute print search, or link to the full texts of these articles crawl them for indexing pass them as data to software or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited. http://www.soros.org/openaccess/read. © 2012 Anne Fitzgerald.. SPARC www.arl.org/sparc How Open Is It? Open Access Spectrum (draft 2012) http://www.plos.org/wp-content/uploads/2012/10/OAS_English_web.pdf Open Access publishing: the Green and Gold roads Green OA authors make their articles (usually in the form of “accepted manuscripts”) available through institutional repositories or personal websites – check OAK List for publisher’s policy on this: http://www.oaklist.qut.edu.au/ QUT ePrints – eg “Open Content Licensing: Cultivating the Creative Commons” (2007), Sydney University Press and QUT ePrints http://eprints.qut.edu.au/6677/ - licensed under CC BY NC ND 2.5 Licence - > 8,000 downloads, ranks 15th in QUT ePrints QUT Law and Justice Journal/QUT Law Review (from 2013): licensed under CC BY – see https://ljj.law.qut.edu.au/ Gold OA OA that is provided by a publisher, i.e. the article is published immediately under OA conditions by the journal publisher. may be funded in different ways - certain publishers may require the payment of a fee by the author to make the work available under OA. © 2012 Anne Fitzgerald.. Gold OA consistent with CC PloS One (OA journal, reportedly the world’s largest scholarly journal by volume) Public Library of Science (PLoS) is a non-profit organisation ‘dedicated to making the world’s scientific and medical literature a freely available public resource’. PloS applies CC BY licence to all works it publishes Research monographs published by Bloomsbury Academic (commercial publisher Bloomsbury Publishing’s academic branch) Content made available online under a CC BY-NC licence (in addition to publishing in print and e-book format and offering print-on-demand copies). Frances Pinter, Publisher of Bloomsbury Academic explains: ‘[o]ur business model is simple. We may lose some print sales because of free access, but we will gain other sales because more people will want the print edition’. Jane Park, ‘An Interview with Frances Pinter of Bloomsbury Academic’, CC News, 20 October 2008, available at http://creativecommons.org/weblog/entry/10100. © 2012 Anne Fitzgerald.. ANU’s IP Policy (1 July 2010) http://policies.anu.edu.au/policies/intellectual_property/policy Part 4 - Section 14. "Open Content" Licensing by [Staff] Member 14.1 …. A [Staff ] Member who Creates copyright matter which is owned by the University is granted a perpetual, irrevocable, worldwide, non-exclusive licence in respect of the copyright to grant licences to third parties over the copyright matter: (a) being an open content licence of the form maintained by the Creative Commons Corporation; or (b) being an open source licence in respect of Software, of the form maintained by the Open Software Initiative or the Free Software Foundation; or (c) in any other form of open content licensing determined from time to time in writing by the Vice Chancellor. © 2012 Anne Fitzgerald.. QUT’s IP Policy: Scholarly works (22 June 2011) http://www.mopp.qut.edu.au/D/D_03_01.jsp 3.1.5 Ownership of copyright In accordance with general law principles noted in section 3.1.4 above, QUT as an employer is the owner of copyright where the work is created by staff members in the course of their employment. QUT’s ownership of copyright applies to both academic and professional staff. Assignment of scholarly works Provided that QUT does not have contractual obligations to a third party which would prevent QUT effecting such an assignment, QUT assigns the right to publish scholarly works to the creator(s) of that work. The assignment is subject to a perpetual, irrevocable, worldwide, royalty-free, non-exclusive licence in favour of QUT to allow QUT to use that work for teaching, research and commercialisation purposes and to reproduce and communicate that work online for non-commercial purposes via QUT's open access digital repository. © 2012 Anne Fitzgerald.. Open Access to research data Copyright applies to data compilations if they are sufficiently original Copyright does not apply to mere facts/information or trivial/obvious/mundane arrangements of data Copyright must apply to original collections of data – TRIPs and WIPO Copyright Treaty For copyright to apply, there must usually be originality provided by some independent intellectual creation/creative spark/application of skill and judgment No special legal protection for non-original data collections (cf European Database Directive) © 2012 Anne Fitzgerald.. Copyright and Data Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) where an author or authors of a compilation can clearly be identified; and it can be shown that the compilation is original in the sense that it is the product of some “independent intellectual effort”; the exercise of “sufficient effort of a literary nature”; involves a “creative spark”; or the exercise of “skill and judgment”, then it is likely to be protected by copyright.  FCA 44 at  per Gordon J. High Court dicta in IceTV Pty Limited v Nine Network Australia Pty Limited  HCA 14 (cf Desktop Marketing v Telstra  FCAFC 112) More recently in the Federal Court: Dynamic Supplies v Tonnex International  FCA 362; Acohs v Ucorp  FCAFC 16 © 2012 Anne Fitzgerald.. AUSTRALIA NHMRC policy on access to data Current policy encourages open access to data: NHMRC … encourages researchers to consider the benefits of depositing their data and any publications arising from a research project in an appropriate subject and/or institutional repository wherever such a repository is available to the researcher(s). Revised policy, effective 1 July 2012, mandates that: any publications arising from an NHMRC supported research project must be deposited into an open access institutional repository within a twelve month period from the date of publication. http://www.nhmrc.gov.au/media/notices/2012/revisedpolicy-dissemination-research-findings © 2012 Anne Fitzgerald.. Joint Statement on Data Sharing of Public Health Research NHMRC is a signatory to the Joint Statement on Data Sharing of Public Health Research issued by the Wellcome Trust Joint Statement expresses a commitment to the timely and responsible sharing of public health data: Much of the data collection that could improve public health research is expensive and time-consuming. As public and charitable funders of this research, we believe that making research data sets available to investigators beyond the original research team in a timely and responsible manner, subject to appropriate safeguards, will generate three key benefits: faster progress in improving health better value for money higher quality science. © 2012 Anne Fitzgerald.. Collaborative data sharing Atlas of Living Australia www.ala.org.au funded by the Australian Government to develop an authoritative, freely accessible, distributed and federated biodiversity data management system encourages contributors to upload their materials under a CC licence via the system’s contribution form. See ALA Data Licensing FAQs at http://www.ala.org.au/faq/data-licensing/. © 2012 Anne Fitzgerald.. OER and MOOCs Open Educational Resources (OER) OER (schools, tertiary sector – TAFE, universities etc) Curricula courseware teaching materials Schools, TAFE, universities MOOCs = massive open online courses online course aimed at large-scale participation and open access via the web originated from within the OER movement < http://en.wikipedia.org/wiki/Massive_open_online_course> But, now some have restrictive IP conditions: http://www.udacity.com/legal/ © 2012 Anne Fitzgerald.. The concept of “OER” The OECD defines OER as: ‘digitised materials offered freely and openly for educators, students, and self-learners to use and reuse for teaching, learning and research. OER includes learning content, software tools to develop, use and distribute content, and implementation resources such as open licences.’ OECD, “Giving Knowledge for Free: The Emergence of Open Educational Resources”, OECD, Paris, 2007, at p 38, available at www.oecd.org/dataoecd/35/7/38654317.pdf. © 2012 Anne Fitzgerald.. The concept of “OER” UNESCO and the Commonwealth of Learning (COL) define OER as: ‘teaching, learning or research materials that are in the public domain and released with an open license (such as Creative Commons). They allow communities of practitioners and stakeholders to copy, adapt and share their resources legally and freely, in order to support high-quality locally relevant teaching and learning’. UNESCO-COL Guidelines for Open Educational Resources (OER) in Higher Education, 2011, p v, available at http://www.col.org/PublicationDocuments/Guidelines_OER_HE. pdf. © 2012 Anne Fitzgerald.. The concept of “OER” The Cape Town Open Education Declaration states that OER: ‘should be freely shared through open licences which facilitate: use revision translation improvement, and sharing by anyone.’ http://www.capetowndeclaration.org/read-the-declaration. © 2012 Anne Fitzgerald.. The case for OER “Nearly one-third of the world’s population (29.3%) is under 15. Today there are 165 million people enrolled in tertiary education1. Projections suggest that that participation will peak at 263 million2 in 2025. Accommodating the additional 98 million students would require more than four major universities (30,000 students) to open every week for the next fifteen years.” Sir John Daniel, Commonwealth of Learning (COL), ‘Tertiary Education: How Open?’, 20 May 2011 at http://www.col.org/resources/speeches/2011pr esentation/Pages/2011-05-19b.aspx. © 2012 Anne Fitzgerald.. Storm Trooper by Maximus_W, licensed under CC BY2.0 Generic , http://www.flickr.com/photos/2395033 [email protected]/6032572260 UNESCO – Commonwealth of Learning (COL) the substantial rise in global enrolments is unlikely to be accompanied in equivalent increases in the human and financial resources available to the higher education sector. OER and advancing ICT infrastructure ‘opens up opportunities to create and share a wider array of educational resources, thereby accommodating a greater diversity of student needs’ ‘governments have an interest in ensuring that public investments in higher education make a useful and costeffective contribution to socio-economic development’. governments should require educationally useful materials developed with public funds to be made available under open licences. UNESCO-COL Guidelines for Open Educational Resources (OER) in Higher Education published in 2011 under a CC BY-SA licence. http://www.col.org/PublicationDocuments/Guidelines_OER_HE.pd f. © 2012 Anne Fitzgerald.. MOOC ≠ OER David Wiley: “There are a number of reasons why the term MOOC is a misnomer. - Many MOOCs are massive but not open (e.g., http://www.udacity.com/legal/) - Many MOOCs are open but not massive (e.g., http://learninganalytics.net/syllabus.html) - Many MOOCs try very hard not to be courses (e.g., http://cck11.mooc.ca/how.htm) … Bonus complaint: The MOOCs which are “massive but not open” pose a special threat to the future of OER, but no one seems to be paying attention… Before long the general public will feel that “free” is good / innovative enough, and no one will care about “open,” permissions, or licensing. The good has once again become the enemy of the best. And how to you wage a PR war against “the good?” ‘The MOOC Misnomer’, 1 July 2012, http://opencontent.org/blog/archives/2436 © 2012 Anne Fitzgerald.. Reuse, remix, distribution are at the heart of OER The OpenCourseWare Consortium identifies the relevant acts that need to be able to be performed with OER as: Reuse: using the work verbatim; Rework: altering or transforming the work; Remix: combining the verbatim or altered work with other works; and Redistribute: share the verbatim work, the reworked work, or the remixed work with others. © 2012 Anne Fitzgerald.. Transacting copyright for OER Limited royalty-free exceptions to infringement, eg Fair dealing for research and study (ss 40 & 103C) Educational uses in the classroom (s 28) S 200AB Educational statutory licences (Part VB) – administered by CAL If use/re-use is not permitted under an exception or statutory licence permission must be negotiated and, often, paid for – could involve considerable cost, complexity and time © 2012 Anne Fitzgerald.. CC licences enable OER re-use CC CC CC Distribution Distribution Distribution Redistribution ACCESS Redistribution Reuse Reuse Redistribution use Reuse © 2012 Anne Fitzgerald.. ND MIT OpenCourseware Global adoption and influence: Taiwan Opensource OpenCourseWare Prototype System (OOPS) project copied the entire MIT OCW site to a local Taiwanese server and translated the courses into Chinese China China Open Resources for Education (CORE) project, a nonprofit consortium of universities established in 2003, began its OER efforts by translating MIT’s OCW Latin America Universia, the largest Spanish and Portuguese speaking network of universities, translated MIT’s OCW courses into Spanish and Portugese, to make the content accessible to their local communities. © 2012 Anne Fitzgerald.. Khan Academy Khan Academy - ToS 7. Licensed Educational Content. 7.1 …Unless otherwise indicated, all Licensed Educational Content is the property of Khan Academy or its subsidiaries or affiliated companies and/or third-party licensors and, subject to the terms and conditions of these Terms, is licensed to You under the Creative Commons Attribution-NonCommercial-ShareAlike 3.0 United States License (available at http://creativecommons.org/licenses/bync-sa/3.0/us/) (the “Creative Commons License”). … © 2012 Anne Fitzgerald.. Trade Adjustment Assistance Community College and Career Training Grant Program (TAACCCT): US $2 billion in funding provided under federal education fund to create OER resources for use in community colleges P062311PS-0339 by The White House (US Government Work) http://www.flickr.com/photos/whitehouse/5937200216 TAACCCT The first round of grants (Wave 1) awarded nearly $500 million in 2011, and the second round (Wave 2), announced on 27 February 2012, will make another $500 million available to eligible higher education institutions. Wave 1 - materials produced must be distributed under a CC BY licence. Wave 2 - the CC BY license must also be applied to modifications made to pre-existing, grantee-owned content using grant funds. © 2012 Anne Fitzgerald.. http://open4us.org/about/ OER-friendly Tools and Resources Where to find OER Open License Search: http://search.creativecommons.org OER Search: http://www.oerglue.com/courses OCW Search: http://www.ocwconsortium.org/en/courses Curated Repositories: http://oercommons.org http://www.merlot.org/merlot/index.htm Open Textbooks: http://www.collegeopentextbooks.org/ More OER: http://www.scoop.it/t/finding-oer http://wiki.creativecommons.org/OER_ Policy_Registry California digital textbooks project Legislative implementation of OER policy In September 2012, California Governor Jerry Brown signed two bills providing for the creation of free, openly licensed digital textbooks for the 50 most popular lower-division college courses offered by California colleges. A crucial component of the California legislation is that the textbooks developed will be made available under the Creative Commons Attribution license (CC BY). © 2012 Anne Fitzgerald.. 42 courses – course materials available under CC BY https://sites.google.com/a/sbctc.edu/opencourselibrary/ Saylor Foundation – Open Textbook Challenge Saylor Foundation makes a free collection of college level courses available on its website under a CC BY licence by default To expand their collection of CC BY-licensed course materials, the foundation initiated an Open Textbook Challenge, offering a $20,000 award for textbooks accepted for use in their course materials. To be eligible for the award, author(s) must agree to license the text under CC BY. http://www.saylor.org/OTC/. © 2012 Anne Fitzgerald.. Poland Digital School program adopted April 2012 by Polish Council of Ministers Aims to raise ICT competencies in Polish schools 43 million PLN (Polish zloty) has been assigned for the creation of digital CC BY licensed (or compatible) textbooks for grades 4-6 See http://creativecommons.pl/2012/04/digitalschool-program-with-open-textbooks-approved-bypolish-government/. © 2012 Anne Fitzgerald.. USQ OpenCourseWare University of Southern Queensland (USQ), based in regional areas (Toowomba, Hervey Bay and Springfield) provides distance education programs 75% of USQ’s students study by distance education USQ’s OpenCourseWare (OCW) portal makes 10 courses available under a CC BY-NC-SA licence. http://ocw.usq.edu.au/. See the OCW FAQs on how to cite USQ’s materials: http://ocw.usq.edu.au/mod/resource/view.php?id=105#1 2. © 2012 Anne Fitzgerald.. Adapt project: teaching adaptations 2012 pilot project - Bridging the Gap: teaching adaptations across the disciplines and sharing content for curriculum renewal. led by the University of Tasmania, with support from the Australian Government’s Office of Learning and Teaching (OLT) aims to ‘enhance the teaching of adaptations (the study of the adaptation of an original novel, play, film, poem, video game or other form of narrative to a different medium) in an Australian context through the creation of a community of practice of scholars’. will develop a repository of OER relevant to learning and teaching adaptations. See http://www.teaching-learning.utas.edu.au/designing/open- educational-resources/open-education-resources. © 2012 Anne Fitzgerald.. Vocational training materials vocational training packages (modules) on training.gov.au previously licensed under AEShareNet licences 1n 2011 shifted to CC BY ND licence – see http://training.gov.au/Home/Copyright © 2012 Anne Fitzgerald.. Further examples CC’s OER page: http://creativecommons.org/education OER Case Studies: http://wiki.creativecommons.org/OER_Case_Studies © 2012 Anne Fitzgerald.. Some background reading: Open Access to Knowledge Law (OAK Law) and Legal Framework for e-research Project See: http://www.aupsi.org/publications/ Creating a legal framework for copyright management of open access within the Australian academic and research sector: OAK Law Project Report No. 1 (2006) Building the Infrastructure for Data Access and Reuse in Collaborative Research: An Analysis of the Legal Context (2007) Guide to Developing Open Access Through Your Digital Repository (2007) Understanding Open Access in the Academic Environment: A Guide for Authors (2008) Review and Analysis of Academic Publishing Agreements and Open Access Policies (2008) Academic Authorship, Publishing Agreements and Open Access: Survey Results (2008) © 2012 Anne Fitzgerald.. Thank you Professor Anne Fitzgerald QUT Law School Publications (http://eprints.qut.edu.au/view/person/Fitzgerald,_A nne.html) Access to Public Sector Information (http://www.aupsi.org) Creative Commons Australia (http://creativecommons.org.au/) © 2012 Anne Fitzgerald. Licensed under Creative Commons Attribution 3.0 Australia.