The Hargreaves Report and copyright law in the UK

Last Wednesday (18 May), Professor Ian Hargreaves of Cardiff University published his review, commissioned by Prime Minister Cameron, of copyright law in the digital age.

The Hargreaves Report, by comment consent, recommended some much-needed changes but falls short of the ‘radical overhaul’ of copyright law demanded by many. Similar to the way the 2010 Digital Economy Act was concerned largely with targeting illegal digital downloads, the focus of the report is on protecting the intellectual property of  the copyright holder (the traditional approach) rather than offering ways that incorporate the idea of fair use, which would require new, innovative models.

Fair use is where significant portions of a work can be replicated without permission as long as the work or reputation of the copyright holder is not denigrated.

For example, I would’ve liked to have used a snippet from a Beatles song called I’ll Follow the Sun for – not surprisingly – our recent e-learning conference. The snippet is available on Wikipedia. When you further investigate the licensing, you’ll find that it’s been uploaded because it qualifies under the US fair use laws. But we don’t have a similar law in the UK, so I didn’t use the song, although clearly my intent was not malicious. The Hargreaves Report looks set to ensure this continues. 

That said, the Hargreaves Report does make a number of useful suggestions for UK copyright law:

  • legalising the practice of copying music and films for personal use (i.e. allowing the consumer to choose his or her media format)
  • the creation of a Digital Copyright Exchange for orphaned works whose copyright holder cannot be established
  • relaxing the laws on parody (see for example the Newport State of Mind video)

Having flexible, fair and transparent copyright laws in the UK is vital if open educational resources are to become as mainstream here as many would like. These laws have to include fair use. President Obama’s announcement in January of a $2 billion fund is an acknowledgement of how central OERs are likely to become in education.

This week, Net pioneers led by Mark Zuckerberg and Eric Schmidt have been lobbying the G8 summit in Paris against increasing attempts to regulate the Internet and especially the Web. Central to this has been the thorny issue of intellectual property.

But when it comes to copyright law, the traditional approach consistently trumps any innovative model. At least in the UK and EU, which is in the process of updating its intellectual property laws in a way that may make even the modest loosening up recommended by Hargreaves difficult to enact, that doesn’t seem likely to change in the near future.

Simon Kear

Keeper of the Media Zoo

Loosening the UK copyright laws: has the time come?

Speaking recently at an event in London, PM David Cameron made the point that intellectual property laws are to be reviewed to “make them fit for the Internet age“.

The six-month review will look at the American model, and see what the UK can learn about using copyrighted material “without the rights holder’s permission”.

This is interesting, especially in the light of the recent – and fairly draconian – Digital Economy Bill (DEB).

It’s possible this is the first salvo in a policy that realises and accepts that new models of commerce must be produced for the Internet age. And part of this needs to be a reassessment of copyright itself, and particularly what “fair use” means today and might in the future.

Cameron seems to be suggesting that the lock-downs of DEB-type legislation are not conducive to economic growth. I don’t think I could argue with that.

As a result of the OTTER OER project here at the Beyond Distance Research Alliance, and the knowledge and experience of the University’s Copyright Officer and honorary OTTER, Tania Rowlett, we all have a much clearer understanding of these issues.

However, I’m aware that sometimes our enthusiasm in support of openness paints those opposed to loosening copyright in a bad light. This is unfair.

Take, for example, the academic publishing industry, one of the fiercest protectors of the principle of copyright. This industry has used a commercial production model that has worked extremely well since Gutenberg first developed his printing press around 1440. Yet now, in the space of probably less than a decade the revenue-generating potential of this model has come under threat from the technological revolution that Web 2.0 publishing has unleashed.

The fact that I’ve linked to Wikipedia – a free source of knowledge or information as some might argue – in the preceding sentence is a perfect example of this. If I still worked in publishing, I wouldn’t sleep very well either.

But download one of the Open University’s 100+ free interactive ebooks  - in my case, to my iPad … of course! – available through iTunes U to see what technology allows us to do. The new digital world can’t be all that bad for publishers. 

However, there does come a moment in human history when change has to be accepted and absorbed. The Prime Minister’s announcement may well be one of these moments for us in the UK.

If the dam is broken, it’s not worth throwing sandbags at it. Far better that the cascading waters are diverted, channelled and controlled to benefit everyone.

Simon Kear

Keeper of the Media Zoo

CopyRIGHT, CopyLITE or CopyFREE

Creative Commons (CC) licenses have been hailed by the Open Educational Resource (OER) community as an answer to the challenges posed by copyright. As an alternative to the “permission culture” of traditional “all rights reserved” law, CC licences have turned copyRIGHT into “CopyLITE” by providing creators of works the opportunity to relinquish some rights of their work for use and reuse by the wider society. In spite of the advantages CC licences bring to the Open Education movement, the multiplicity of licences available (six in total), and the conditions associated with them (four in total), means that the CC licence is not as straightforward as users would like it to be.

At a recent JISC institutional strand meeting on OER, it emerged that existing CC licences are not adequate for application to clinical materials, due to the high proportion of complex images from various sources that need clearance, and calls were made for more sophisticated CC licences to respond to the perceived gap. If such calls are heeded, CC licences will become more complex, and the list of licences will continue to grow in future. However, this complexity is likely to increase the existing confusion around licences and rights. Is there a need for a complete shift in thinking away from the “some rights reserved” philosophy which underpins CC licences?

Some have suggested opting out of the Berne Convention, arguing that CC licences are only watered-down versions of traditional copyright laws. I suggest an alternative solution: instead of copyright laws being automatically in force upon the creation of a work – a new global convention, CopyFREE – where the default position is that there is no need for any form of licence. Under copyFREE, the onus would be on creators of works to make a case for their work to be protected from copying. The copyFREE argument would be similar to the “presumed consent” position put forward by the British Medical Association for organ donation, where persons are deemed to have given their consent to organ donation unless they have registered to opt out.

We need to acknowledge that traditional copyright laws emerged at a time in our collective development history when there were no mash-ups, digital natives or generation Y. We need a 21st century copyright treaty which is more responsive to the needs of a society where openness is a defining feature. Will CopyFREE lead to more creativity, innovation and knowledge sharing for public good as opposed to private profit? Let the debate start.

Samuel Nikoi (26 October 2009)

What can the Open Educational Resources (OER) movement learn from Indigenous Knowledge Systems?

Over the past few years there have been growing interests in Open Educational Resources (OER)  – see for example our OTTER project – aimed at making teaching and learning materials freely available with very few restrictions. OERs are based on the philosophy that knowledge is a public good and hence should be disseminated and shared freely for the benefit of society. OERs are also based on a vision of ensuring that each and every person on earth can access and contribute to the sum of all human knowledge thereby promoting lifelong and personalised learning. What was once derided by Bill Gates as “a malevolent force bent on destroying the monopolistic incentive that helps support the American dream” has today gained the support and endorsement of many governments around the world.  To this end, there are a number of initiatives aimed at the development and use of OERs such as the open source initiative, open content initiative, open access initiatives and creative commons to mention a few. 

But like any new initiative, the development of OERs has not been without challenges, not least the question of copyright and licensing which is seen as a core element that supports use of open learning resources. All over the world copyright laws are designed to legitimise and protect individual intellectual property by granting to the creator of original work exclusive economic and moral rights for a certain time period in relation to their work before the work is put in the public domain. The law requires that the idea or knowledge to be copyrighted be captured in a tangible, substantive and fixed form. Thus materials which are intended to be made freely available to the public through open learning platforms must first be cleared by right owners, usually, but not exclusively through creative common licences. Whilst creative common licences are useful for “opening up” resources for public use, the terms and conditions under which such resources are licensed can still be restrictive, for example, where materials can be accessed but not altered. This raises concerns and questions about whether “open educational resources” are indeed “open”.  What is understood by the term “openness” can also differ from society to society. In collectivist societies, the way ideas emerge, how knowledge is developed, processed, validated, stored, and shared are remarkably different when those found in individualistic societies.

Those who have looked at the world from the point of view of organised science have dismissed indigenous knowledge, found mainly in collectivist societies, as pre-logical and irrational and have downplayed such forms of knowledge, which exist within and have been developed around aspects of local people’s lives. Indigenous knowledge as a fixed corpus is co-generated through participatory and consultative processes of learning that come via observation and experimentation. Such Knowledge is dynamic, continuously being enhanced and adapted to suit local needs. It is stored not in repositories but expressed in stories, songs, folklore, dances, beliefs, language and occupational practices. The knowledge is shared not through learning management systems but through local learning systems and micro processes of networks and interaction among groups connected by kinship, friendship, community, religion and practices all based on the participatory principle. To this end, indigenous knowledge becomes open not through the expression of knowledge in a form that is saleable in the marketplace but through considerations of cultural integrity, reciprocity and presentation. Within collectivist societies, knowledge has always been seen as a public good, rather than a source of private/individual profit. It is thus treated as a kind of community-owned intellectual property developed by all, available to all and for the benefit of all. Certainly there is a lot that the OER movement can learn from the participatory principle of indigenous knowledge systems.

Samuel Nikoi ( 7 June 2009)

Think long, act short! *

Intellectual Property Rights (IPR) can be really tricky when you are trying to publish good stuff that has been generated by other people, for use by the rest of the world – even when you have the permission of the authors.

To illustrate the point, here’s a scenario we discussed today in the context of our OTTER project, which is all about making teaching materials available as Open Educational Resources (OERs).

A lecturer from another university has been invited to come and give a presentation to students and staff of a department at our university. Someone in the hosting department suggests that the presentation be videoed – ‘for the distance students who can’t be here today’ - and so plans are put in place to do this.

Naturally, the speaker is asked for her permission before the camera starts rolling, and the presentation is duly captured in video and audio formats. In addition, the speaker is asked if she wouldn’t mind handing over her slides, to complete the package for the distance students. (In this scenario, which took place last week, the speaker graciously agreed to both requests, verbally.)

Questions then arise around the formatting/packaging of the presentation. For example, should we provide both the video (streamed from the university’s server) and the audio alone (in MP3/ podcast format)? Should we also produce a slideshow in which we synchronise the audio with the slides (e.g. in Adobe Connect), on the assumption that this is more useful for users than the video of the speaker with slides only fuzzily visible in the background?

The formatting questions are necessary, but not sufficient, in deciding how to proceed. The speaker has so far only given her verbal permission: written permission will be needed, indicating that she understands the uses to which the materials will be put and has permitted these uses. The speaker’s permission needs to take account of her copyright (in the slides), her performance rights (in the use of her voice and videoed image), and her moral right to be acknowledged as the author.

Apart from the speaker herself, there may be other parties who would consider that they have a claim to the materials or part of the materials. The speaker’s employer may have a policy regarding ownership of teaching materials produced by staff, and they may need to be consulted. In addition, if the speaker used any content (e.g. diagrams, frameworks) from other authors, permission would be needed from these people too.

The IPR considerations become all the more pertinent if we go beyond the ‘walled enclosure’ of the institution’s Learning Management System, and wish to publish the materials as an Open Educational Resource, for example in an OER repository such as JORUM or OER Commons. The key is to think about the possible long-term uses, and rights implications, of a resource at the planning stages. This is a mindset that anyone either generating or publishing OERs needs to adopt, and is critical for the credibility and survival of the open courseware movement.

* An IPR Moment

Thanks to Roger Dence for the use of his words as the title for this blog entry, and for sharing thoughts about IPRs in our discussion today.

Gabi Witthaus

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