The OCL4Ed session on Copyright, that is, your educational rights to copy has generated a good number of questions from the participants. I decided to prepare a blog response to selected questions so as to keep the answers together for the benefit of all learners.
Alastair Creelman over at the Corridor of Uncertainty has published a great post highlighting the grey zones of openness with practical examples from his own experience. This could be reworked into a great case study for OCL4Ed!
Alastair points to a neat example of a screenshot from a copyrighted movie which he originally found on Flickr incorrectly labelled with a CC-BY-NC-SA license. (Wikipedia uses the image under the provisions of fair use in the United States for an article commentary on the film and correctly indicates that the image is copyrighted and used under the provisions of fair dealing.)
Alastair asks if an educator is “responsible for unwittingly using a copyright photo that someone has falsely claimed to be their own and put a CC license on it?” I’m not a lawyer, so normal disclaimers apply, but this is how I would respond to the question drawing from our practice and experience at the OER Foundation. If the re-user has properly attributed the source (including the link to Flickr in this case) and could not have reasonably known that the image was uploaded in breach of copyright, I would suggest that this is adequate defence when receiving a cease and desist request. Clearly there are obvious contraventions of copyright, for example, a photograph of a copyrighted work where the photographer has inadvertently applied a CC license to an all rights reserved work under copyright. The message for educators is to know that users of social media can make mistakes when applying a license so don’t assume that the license is correct. Read the captions and metadata carefully and use a healthy dose of common sense and your knowledge of copyright. If in doubt – assume that the image is all rights reserved.
If you’re not too confident about your own knowledge of copyright, rather use reputable sites which have reasonable controls and mechanisms to audit the licenses applied. The Wikimedia Commons is a good option because a knowledgeable community actively vet and review the licenses of images uploaded to the site.
Alastair points to another great example with reference to embedding rich media like video into works teachers are publishing. A large number of the videos you can embed are typically all rights reserved. Most video hosting sites negotiate a custom all rights reserved license from the original copyright holder which provides permissions for embedding video on third party websites. If you are not sure of what is permissible, read the terms of reference on the website which provides the streaming service to clarify the rights. Remember – when incorporating video streams which are all rights reserved into teaching materials and repackaging or copying these for alternative delivery that the original terms of reference will apply and any open license applied to the resultant educational materials would not apply to the 3rd party video material. Do not attempt to modify the original video unless the license permits this and always ensure that these videos can be identified as discrete objects with clear attributions and links. At the OERu, we do not embed any videos unless a free cultural works approved license is applied to the source video because we aim to ensure that downstream users will have the 4R permissions.
Tony Cairns (@Tonycairns) from Wellington High School in New Zealand tweeted a number of practical questions. OCL4Ed participants may not be aware that Wellington High School was one of the early adopters of a growing number of School Boards of Trustees in New Zealand who have adopted a Creative Commons policy. The New Zealand Parliament has approved the implementation of the New Zealand Government Open Access (NZGOAL) licensing framework which encourages schools to adopt Creative Commons policies.
For the benefit of context, the default copyright of works produced in the course of employment by New Zealand teachers belongs to the School Board of Trustees. NZGOAL encourages New Zealand schools to adopt Creative Commons policies, but in the absence of such a policy, the default all rights reserved copyright would apply. All teaching materials produced by teachers are deemed to be works produced in the course of employment. Therefore, if a teacher were to produce learning materials over the weekend using their own computer – the copyright belongs to the Board of Trustees. However, if a Maths teacher were to publish a book of poetry on their own time, the copyright would belong to the author. Consequently, teachers authoring school textbooks would need to clear copyright permissions with the Board of Trustees as these would normally be deemed to be teaching materials. With the growing number of schools adopting creative commons policies, it is possible for schools to reassign copyright to the individual teacher on the basis of applying an open license thus protecting the investment in teachers salary to produce learning materials.
I include a few of Tony’s questions (and responses) below:
Do websites like Dropbox, Google Drive, Facebook etc breach copyright?
The short answer is no (but many users of these sites which store digital materials inadvertently do). In general, these websites work on the basis that the original copyright holder retains copyright but the terms of reference (a contract which is concluded when registering an account) provides the website service with a custom license which permits the uses of the web service. Generally speaking, users are required to ensure that they have the rights to post copies on the web site. If the user is in breach of copyright, they will be personally responsible.
Does format shifting constitute a breach of copyright? (eg converting a tape to CD or jpg image to png).
Yes. Shifting format is the act of making a copy, so if the source is all rights reserved, generally format shifting would be in breach of copyright. The national copyright act of your country may specify exemptions. For instance, for access reasons e.g. converting text into Braille or exemptions for making a backup copy of a computer programme, or temporary exemptions for cached copies of website content. You will need to consult your own copyright act to clarify these exemptions. Of particular interest, is that the CC licenses are more attuned to a digital world and specify that format shifting is allowed for all their licenses.
Does performance, movement styles, thoughts, organs, tissues retain copyright?
Wow — lots of issues in this question. I’ll reference a few. A public performance is copyrightable. Therefore a public performance of Shakespeare (which is in the public domain) will carry copyright – so you can’t film a public performance and apply your own copyright as the photographer. Remember its the expression of the idea which carries copyright. Generally, movements and styles are not copyrightable – however, a printed copy of the dance moves for a ballet production would normally carry copyright. Copyright should not be confused with patents or trademarks which are others forms of intellectual property. The style of a logo can be trademarked – and therefore protected.
Again its important to consult your national copyright act, because often there are sections which deal with public performances, exemptions for the news media etc.
Organs and tissues are not copyrightable. That said, biological patents are a controversial and complex area where for instance drug companies attempt to patent DNA sequences. These complexities fall outside the realm of our copyright course and I’m not legally qualified to express a definitive opinion here.
How do indigenous rights (Maori) and attitudes to knowledge deal with copyright?
This is an excellent question. Indigenous knowledge is different from Western concepts of ownership of “property”. For example, the Maori concept of “taonga” (meaning treasures or precious things) is broader than the Western concept of physical property rights.
Here in New Zealand, Creative Commons Aotearoa are progressing discussions about the relationships and meaning of indigenous rights and Creative Commons licenses. I am also aware of some countries which have specific provisions in the copyright act regarding indigenous rights. Creative Commons is a relatively new development in the bigger scheme of things and I imagine that these understandings and relationships will mature over time.