Open Education Resources

Engaging Students in the Creation of Open Content by Heather M. Ross

Heather did a presentation at Saskatchewan Polytechnic on Open Pedagogy during Open Education Week in March of 2019.  I also heard their keynote address at the Cascadia Open Education Summit in Vancouver, B.C.  This topic is near and dear to my heart, so I convinced the program committee to recruit Heather to this conference.

Students do better using OER because they have the textbook, or do as well because no one was probably reading the textbook anyways!  As an aside, I know this is true.  I never read the textbook, mainly relying on the instructor's notes and classroom activities to provide me with the necessary information.  

Educators need to move away from the view that students are consumers.  Open pedagogy allows students to be contributors

We need to raise awareness as OER as an option:

• Open pedagogy is particularly useful in upper year class where there are few OER resources
• Technology can be an issue if moving between platforms
• Time is always a key consideration (time to review new textbook, adapt or modify the textbook, update learning materials, etc.)
• Start funding ancillary resources with OER funding as an alternative to commercial homework systems
• Institutional/Department culture - this is where we have an advantage over publishing reps, we know the culture, and we have built relationships with these folks

Support for using OERs comes from: 

• Teaching and Learning Centres
• Librarians
• Instructional Designers
• Distance Education Units
• Funding

You can’t Indigenize the curriculum with a commercial textbook.

Preservation

Software Preservation and Copyright by Mark Swartz and Graeme Slaght

Codes are made by and for the community (anchored in professional practice), with the help of legal and technical experts (Communities of practice, as well as consensus interpretations).

CARL is building an open course on copyright for use by faculty and staff which should be ready in the Winter of 2020

The Sky is Not Falling - A Discussion about the Fair Dealing Guidelines by Meera Nair and Heather Martin

• Differences between creative works and scholarly works should be included as a consideration
• Why are we using something and how are we using it?
• Rigour of the 6-step process does not always work in an academic environment/community

What is Fashion?

Cultural Appropriation in Fashion: Is Copyright the Answer? By Brigitte Vezina

Like the fan fiction session, I had not given much thought to copyright issues in the world of fashion.  This session was incredibly interesting and I learned a lot.  

Fashion designers draw inspiration from all corners of the world.  But when sourcing elements from traditional cultures and reusing them out of context can cause harm: this translates as cultural appropriation.

A balance is required between support for a dynamic fashion industry with respect for Indigenous rights and interests as harm can be caused by misrepresentation.

UN Declaration of the Rights of Indigenous Peoples

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions (TCE), as well as their intellectual property. 

TCE the tangible or intangible forms in which traditional cultures are expressed or embodied, passed down from past generations, linked to an Indigenous community, often the creation or author is unknown (i.e.: artifacts and artwork)

Cultural Appropriation - change of cultural context, power imbalance, and the absence of holder’s involvement.  Misuse, misappropriation and unlawful use are the terms used by WIPO

Not all forms of cultural borrowing, inspiration, influence or taking are undesirable.  Cultures are fluid and to restrain their free flow would be to negate their very essence.

What is the difference between permissible inspiration and harmful use?

Fashion push boundaries or cause controversy, but that does not give you license to cause harm.

TCE often receive patchy protection of traditional cultures under copyright law because of originality (past down from generation to generation, derivatives may be fine), ownership (who is the owner), fixation (oral traditions), authorship (who is the originator), duration, exceptions and limitations (protection of culture in perpetuity).

“First Peoples’ identity is intrinsically linked to their dress.  Beyond its main purpose of protection, it tells observers the age and status of the individual gives immediate information about the nation he or she belongs to, pays homage to the person’s remarkable achievements and highlights the intimate relationship that exists between people and nature” Wearing our Identity - The First Peoples Collection at the McCord Museum, 2013

Principles:

1. Understand and respect the culture - do your homework and understand what it means.  For example, are you using an item that culturally would only be for women, in men's fashion? 

2. Transformation, not replication

3. Acknowledgement, attribution

4. Engagement, request for authorization and collaboration

The concept/principles of moral law within copyright law could be interpreted for use these types of cases for protection over TCE.

Decline of the Collective

Decline of Collective Copyright Licensing in Post-Secondaries Explained via the Theory of Fields by Donald Taylor

Why was Access Copyright (CanCopy) initially so successful?

• Mobilized author, politicians, publishers and educators to their view of the copyright world
• Established strong relationships with allies in proximate fields
• High cost of damages for non-commercial copyright infringement
• Indemnity clause in CanCopy licence (similar to an insurance policy for most institutions)
• Reasonable cost
• Risk adverse institutions

March 2010 AC files tariff, as AUCC fails to negotiate 

Overall increase of at least 3X of the total cost of previous AC licence ($35 FTE for colleges)

Access failed because they: 

• Did not plan for lengthy negotiation period
• Did not communicate desire to change to a tariff model
• Incumbency made them take the status quo for granted
• Perceived to be ‘flexing their muscles’ and ‘overplaying their hand’
• Unnecessarily upset post-secondary institutions

Audit premise

Give AC on reasonable notice, right of access throughout the Educational Institutions’ premises, including full access at any reasonable time, to administer they survey

Didn’t understand the nature of academic freedom

Tariff gave challengers something to challenge

• Institutions create own copyright strategies
• Institutions challenge tariff
• AUCC challenge tariff 

Interviewees identified in this study that “Institutions would have signed, grumbled but signed” a licence at $12 or $14 FTE

April 2012 AUCC/ACCC announce model licence deal

$26 for Universities / $10 FTE for Colleges

2016 Testimony reveals 

• Access ready to make a deal
• Cost certainty
• Withdrawing tariff objections was in ‘good faith’ with publishers
• Work on an agreeable survey methodology

AUCC and ACCC actions perceived by many as “a bit all over the place”

Copyright Modernization Act - exceptions for web materials, online learning

Alberta v Access Copyright - expansive definition of fair dealing

Gave many information on how fair dealing should be interpreted in an educational institution

2012 opt-out, and many remaining institutions in 2015 followed suited

Those who stayed with Access did so for “insurance purposes”

2013 AC rallied their troops, but then sued York.  Wanted to negotiate with AUCC which then quickly failed

UC and CICan did not differentiate from K12 sector which could be a failure on our side

88% of students outside of Quebec without a licence

2017 York decision had minimal affect

Two possibilities: 

- Access Copyright as winner, but loss of respect, and significant animousity from post-secondary institutions

- If York wins, opt-out incumbents, coalition form

Fair Dealing Exception for Education, Research and Private Study

Educational Use: A Dickensian Tale of Two Lawsuits by Kevin L. Smith

Georgia State and York University

Similarities in two cases:

• Overarching goal to establish how to apply fair dealing in educational copying
• Differing positions on how “amount” should be judged
• Six factors test for fair dealing from CCH v. Law Society is very similar to four factors of fair use

Differences: 

• GSU plaintiffs are rights holders, not collective rights organization like Access Copyright
• York case starts with availability of blanket license
• No U.S. parallel to issue of interim tariff
• No Canadian parallel to GSU’s sovereign immunity defense
• York case is more recent

Fair Dealing - Two step test

1. Use must be on list of permitted purposes - research, private study, etc.

2. Six factors to consider - purpose, character, etc.

Outsider’s View

- Canadian Broadcasting Corp. v. SODARC (2003)

“Licenses fixed by Copyright Board do not have mandatory binding force”

Article by Ariel Katz

CCH Canadian Ltd. v. Law Society of Upper Canada (2004)

Two step test for fair dealing with factors similar to fair use

Fair dealing is a users’right, not “simply a defense”

Should be interpreted broadly 

Alberta v. Access Copyright (2012)

-teacher made copies cannot be segregated from the purpose of research and private study - teacher steps into the role of the student when they make copies on behalf of the student

Copyright report - pushes the question “what is the purpose of fair dealing”

Digital world really makes everyone an author and a publisher

Harm to authors - commercially available works

Value is set by the consumers who purchase the work

What about academic authors where that is not their purpose

Issue of strategy

- Could a decision on fair dealing and the York guidelines have been avoided?

- Should focus be on mandatory nature of an approved tariff, or only an interim one?

York case has potential for more harmful impact

If Federal Court is upheld:

- Tariffs could become taxes - potential “huge new costs”

- Supreme Court precedents benefiting education would be a least partly erased

Biggest threat to publishers is their failure to transform their businesses to a digital world, not the harm that is done by the educational use of materials

Copyright Librarians in the States provide information on copyright so that the individual can make a decision/assess about risk of use, situations where there are parallels to the facts

Offer information, but not conclusions

Inspired amateur self-help, on the ground risk analysis of fair dealing 

Fan Fiction and Copyright

Negotiating Copyright in Online Creative Spaces by Rebecca Katz

Interesting session on an area of literature and copyright that I do not come across too often, despite the fact that my kids read a lot of fan fiction.

Fan fiction is essentially second generation creativity that remixes earlier media.  The stories are based identifiable segments from the Fandom, source text, fan fiction, fans and their community.

Information behaviour - do fan fiction writers consider the copyright implications of their work?

Freund (2014) copyright literacy, baseline knowledge of fair use and a variety of strategies to cope with complaints.

Legal disengagement as these writers generally have passive information behaviour with limited legal research or understanding.

Within the world of creating fan fiction, authors need to have greater knowledge of fair dealing.  Authors often have a preference for ethical but not necessarily legal. 

Language

Language and Discourse in the Copyright Act Review by Jennifer Zerkee and Stephanie Savage

Their research project analysed briefs that were presented as part of the copyright review using NVivo.

There preliminary findings reveal that language used was primarily from a user-rights perspective 58.4% compared to a creator-rights perspective 38.4%, which contradicts some of the assumptions that we make on this topic. 

19 separate communities are represented in the briefs (education and publishers had the highest representation).  Internet was the next biggest group, and represent groups that use the Internet to present their content online (Google Canada as an example).

Briefs highlighted and complement the focus that the majority of academic institutions have on the circumvention of TPM, fair dealing, and the focus on protecting traditional knowledge.

Social Media

Social Media And Copyright Dr. Hayleigh Bosher

The mandate of social media is sharing content, either individual or third party content.  Huge profits are made by Twitter, Facebook and Instagram for example.  They have the resources to take on some of the expense of protecting content, it is not just a generous gift to all of us.  It is very important to keep an eye on what these are companies are up to.  We are encouraged to share, the more we share, the more money they make, more benefit to the platform.

Yet the purpose of copyright is the creation and dissemination of culture, knowledge and information which achieved through the protection of who can copy and how much. 

Did you read the terms of use?  Probably not.  You may think that it is a generous gift from the internet - no not really... Instagram for example, allows you to keep copyright, but you grant them non-exclusive, transferable, sub-licensable, royalty-free worldwide access/use of your content.  More troubling, the licence survives even if you stop using the platform feature.  Perpetual terms are similar for other platforms.

So what does it mean... you grant them everything...

If the institution owns your IP through the course of employment, and we upload that content to social media, we could be in breach of institutional policy.

Social media is becoming very common for classroom use so copyright professionals, others, need to update institutional policies to protect faculty.  Or at the very least make sure that faculty are aware of the terms of use from these companies.

More examples: 

• Instagram is selling to AI for facial recognition software - so you can never really get your stuff back
• YouTube - your royalties comes from advertising not from licensing - isn’t that a good mechanism because the purpose of copyright is to ensure a revenue stream for the creator
• Instagram - you warrant that they own the content that they post or it does not infringe.

Trend of platforms going after the every day user for infringing copyright

What constitutes skill, labour and effort?  Do we need to raise the bar when there is an APP to create a song, produce a photograph?  Especially when compared to traditional views on creation (skilled producer to create a song)

Two camps of educators... either don’t know and don’t care, just do what they want vs. so scared that they don’t use anything.

There are companies and software searching the internet for opportunities to sue the every day users of social media.  It is in their best interest and they can also afford to do so.  

We need more people to push the boundaries on copyright limitations.

International Perspective on Copyright Issues

Copyright: An International Perspective by Dr. Jean Dryden

WIPO looks at copyright exceptions for the benefits of all through public access to libraries, and archives.  These provisions are often in place because of international obligations, and individual countries (laws) may not be able to change provisions because of these obligations.

Considerations: 

• A national regime is the law that applies in the country where the work is accessed regardless of where the creator is from, offering reciprocal protection.
• Common minimum standards of copyright protection (Berne) country can provide more, but not less.  
• Trade agreements have enforcement mechanisms.  IP is increasingly incorporated into trade agreements
• Indigenous knowledge - treaties on international protection for IP, genetic resources (plants, traditional medicines [pharmaceutical companies have a keen interest here]), traditional knowledge (know-how, skills, and practices that are developed, sustained and passed on from generation to generation within a community) and folklore which has been renamed traditional cultural expressions (music, dance, art, design, names, handicrafts, etc.)

Current agenda: 

• Protection of broadcasting organizations
• Limitations and exceptions for libraries, and archives; for educational and research institutions; for persons with other disabilities (other than visual impairment)

Berne Convention limited provisions for exceptions through the 3-step test

Exceptions and Limitations are: 

• Education and research institutions
• Libraries, archives and museums
• Visually impaired persons - Marrakesh Treaty (2013)
• Persons with other disabilities

Goal: A binding international treaty that will set out minimum copyright exceptions and limitations required by libraries, archives, museums for the benefit of the public (in the public interest).

• Preservation
• Reproduction for research and similar purposes
• Library lending (same jurisdiction)
• Cross border uses (across national borders, parallel purposes)
• Orphan works
• Limitations on liability of L&A
• Circumvention of TPM
• Contracts
• Right to translate works

Current strategy focuses on less controversial topics - preservation, copying, orphan works, non-commercial cross-border uses.

The Crown

Crown Copyright by Amanda Wakaruk

Unpublished government publications are protected by perpetual terms with protection for published works lasting 50 years.  The Access to Information Act also protects content as necessary or appropriate.

Does this verge on censorship in a democratic society?

1. Very few publications have been assigned open government licence

2. Terms of use create a disincentive for reuse and exclude stewardship 

Problem of multiple interpretations

3. Lack of guidance for making legacy materials available, halting many good digitization projects leading to the potential loss of valuable materials being available to the public.

Crown Copyright can be seen as a significant barrier.  Many advocacy efforts including the writing of briefs, requesting review or removal of Crown copyright on publications.  Unfortunately there is no counter argument which is rare in government committees. 

Kelsey Merkle - “government documents should be placed in the public domain at the time of publishing”.  Bill C-440 seeks to abolish crown copyright for future documents, as well as past documents. 

Next steps:

• Industry Committee report will hopefully include recommendations 
• Stakeholders continue to advocate
• Impact of PMb C-440 and influence if any of SCC Keatley v. Teranet

Open Access vs. Traditional Publishing

OA Policies and Traditional Publishing Agreements by Dr. Rumi Graham, Allan Bell and Mark Swartz

Lovett, Rathemacher & Boukari, 2017 “permissions based OA policies make it legal to post author manuscripts in the IR regardless of publisher policies”.

Harvard “Good Practices” website.  Their OA policy is permission based, or an author-rights policy which is a non-exclusive licence to publicly disseminate research between grantors (authors, departments), and grantee (institution).  The policy applies from that moment forward (prospective application, author gives a portion of rights are transferred to the institution and therefore cannot be completely transferred then to the publisher), so that the peer-reviewed manuscript version can be retained following the waiver (policy waiver for specific content).  This policy acknowledges the important of “Rights retention” in OA policies.

But do we have a reliable legal framework to protect these rights?

A legal option: 

A Rights Retention Open Access policy (RROA) is a non-exclusive agreement of an author or co-author while at the institution.  The policy grants the university a non-exclusive right to archive, preserve, reproduce and disseminate the work in any medium and authorize others to do the same.

No statutory provisions in Canada like US, UK or Australia.  Non-exclusive has no property rights in copyright, only contractual rights

• there is no case law, just a legal analysis
• a tonne of assumptions
• extrapolating from the general principles of contract and property law and related to copyright
• courts are unpredictable

We need a case or propose statutory provision(s).  Copyright librarians need to constantly educate and inform faculty about their past licence/copyright agreements and help them understand their options in the future (preventing the subsequent licence).  We need to protect all parties (faculty, institution, publisher).

TPM

CUSMA and Technical Protection Measures by Robert Tiessen

Blame it on consumer technology and electronics!  It was not until the photocopier, cassette recorder, VCR, etc. came into being, that publishers and content creators began to really worry about what people were doing with their content.  

WIPO copyright treaty offers adequate legal protection against the circumvention of technological measures or digital locks.

Digital Millennium Copyright Act (DMCA) has had a major effect on US trade policy as copyright considerations are a part of trade agreements.  DMCA wants other countries to adopt US copyright protections for the digital locks provisions.

Section 41 of our copyright act as an example. 

Technological Protection Measures (TPM) requires authorization of the copyright owner, and you cannot circumvent without their permission.

Options to consider:

1. Amend S41.1 not illegal to circumvent TPM where the copyright has expired.  Continue existing exceptions for print disabilities.

2. Create an exception for libraries, archives and museums to circumvent TPMs on behalf of their clients for otherwise non-infringing purposes.  For example, New Zealand allows for an intermediary like libraries to make those decisions on behalf of the public if they can prove that their purpose is for fair dealing and is allowable

Section 41.21 seems to specifically refer to TPMs adversely affecting fair dealing

3. Canada should have a call for new regulations every three years

Towards Reconciliation

What better way to spend your time during COVID-19 and the shut down of the country, than to catch up on academic writing, research and other such projects.  For example, I attended two conferences almost a year ago and I have yet to update my blog with information from those events.  Why not do it now?  I have challenged myself to post about at least one session a day. I am making my kids do homework, so why not me as well.

The ABC Copyright Conference was hosted by the University of Saskatchewan on May 30 and 31, 2019 in Saskatoon.  The notes below are the concepts/key takeaways/information that resonated with me while I listened to the presentation.  For more information on any of the sessions, I would encourage you to click on the presentation title  link, which will take you to the presenter slides and notes. 

Towards Reconciliation by Meera Nair 

“Indigenous customary law is inseparable from Indigenous knowledge”  Dr. Younging

Nair's presentation encourages us to question the assumptions that we make about intellectual property and the very system of copyright.  Canada is a multicultural country that idealizes unity but does not inform uniformity.  Natural laws must apply to everyone, while being mindful of protecting and enhance creativity without stifling it.  

Indigenous teachers recognize that we all have responsibility/obligations to care for the land, and the need to “....live in harmony with nature and mankind” from the Declaration of First Nations, 18 November 1891.  The stewardship concept of ownership is vastly different from the settler view.  Stewardship looks ahead seven generations making a social contract with an emphasis on the traditions, and the value of taking only what you need from the community resources.

All Canadians must safeguard the use of Indigenous knowledge and creativity, protecting that which is not ours. The settler view of public domain is vastly different; materials can be exploited by anyone and used without seeking authorization nor providing attribution.  

Public domain is a concept that exists within Indigenous traditions/customs which stresses the aspect of use with respect.  Use that does not betray ancestors nor future generations.