OER in Australia

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..
 Core condition:
 Attribution (BY) – attribute the author, and no false
 Baseline Rights:
 Reproduce
 Distribute
 Publicly perform
 Create derivative works (and reproduce, distribute and
publicly perform the derivative work)
© 2012 Anne Fitzgerald..
Human-readable summary
“Legal Code”
Machine-readable code
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
 research conducted with public funds
 articles written and peer-reviewed by scientists and
academics for free
 typically, copyright was assigned entirely to the
 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):
 Implementing OA requires:
 understanding of the legal rights and relationships
 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)
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:
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
© 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
 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:
being an open content licence of the form
maintained by the Creative Commons Corporation; or
being an open source licence in respect of Software,
of the form maintained by the Open Software Initiative or
the Free Software Foundation; or
in any other form of open content licensing
determined from time to time in writing by the Vice
© 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
© 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.
[2010] FCA 44 at [344] per Gordon J.
 High Court dicta in IceTV Pty Limited v Nine Network
Australia Pty Limited [2009] HCA 14 (cf Desktop Marketing
v Telstra [2002] FCAFC 112)
 More recently in the Federal Court: Dynamic Supplies v
Tonnex International [2011] FCA 362; Acohs v Ucorp [2012]
© 2012 Anne Fitzgerald..
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.
© 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
 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
 See ALA Data Licensing FAQs at
© 2012 Anne Fitzgerald..
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:
© 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
© 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
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
UNESCO-COL Guidelines for Open Educational Resources (OER)
in Higher Education, 2011, p v, available at
© 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.’
© 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
© 2012 Anne Fitzgerald..
Storm Trooper by Maximus_W,
licensed under CC BY2.0 Generic ,
[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.
© 2012 Anne Fitzgerald..
 David Wiley:
“There are a number of reasons why the term MOOC is a misnomer.
- Many MOOCs are massive but not open (e.g.,
- Many MOOCs are open but not massive (e.g.,
- Many MOOCs try very hard not to be courses (e.g.,
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
© 2012 Anne Fitzgerald..
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
 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
 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
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
© 2012 Anne Fitzgerald..
 42 courses – course materials available under CC BY
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.
© 2012 Anne Fitzgerald..
 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:
© 2012 Anne Fitzgerald..
Adapt project: teaching
 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
 will develop a repository of OER relevant to learning and
teaching adaptations.
 See http://www.teaching-learning.utas.edu.au/designing/open-
© 2012 Anne Fitzgerald..
Vocational training materials
 vocational training packages (modules) on
 previously licensed under AEShareNet licences
 1n 2011 shifted to CC BY ND licence – see
© 2012 Anne Fitzgerald..
Further examples
 CC’s OER page:
 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
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
 Access to Public Sector Information
 Creative Commons Australia
© 2012 Anne Fitzgerald. Licensed under Creative Commons Attribution 3.0 Australia.

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