The Perils of PolicyPotential OER Pitfalls of Copyright Policies and OA Legislation

2

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?