In Conversation - Open education and copyright

Copyright is a crucial but often mystifying element of open education. Here, RMIT’s Deputy General Counsel explains copyright and the role it plays in relation to open educational practices.

RMIT’s new open scholarship policy affirms open scholarly practices in education as a model of innovative pedagogy to enhance the quality of the student experience and reflect the principles of equity, inclusion, and social justice.

It provides RMIT educators with the right to go open and release course materials they create as part of their teaching under an open licence, such as creative commons.

In the education space, open scholarship is commonly known as open educational resources, open textbooks, and open educational practices such as open pedagogy.

Open is not necessarily free, and creative commons is a licence that is built upon a legal framework aligned to copyright, where rights of copyright are assigned via the open licence.

Copyright exists to provide creators with an incentive to continue to create through legislative and economic protection, enabling them to reap financial benefit from their creations.

Former Deputy General Counsel, Bec Taube, recently spoke with Anne Lennox, Associate Director Teaching and Research to unpack the role of copyright in open education.

To kick off the conversation could give us an understanding of what is copyright, and why do we have it?

The idea was to encourage people to create and write books, make works of art, and compose songs by giving them a monopoly, or exclusive rights to control copying, allow them to earn a living off their creativity or innovation.

In exchange for the author or owner getting these exclusive “copy rights”, the deal was that after a certain time when the author or creator had died, those copy rights would expire and the creative work would pass into the public domain.

This is the trade off and balance between public interests and private ones. It was intended to create a society and support an economy that values artistic, creative work, originality, and the application of intellectual effort by giving the creators control over it but only for a specific period.

After the copyright period expires, the work then becomes available for everyone to use it.

So, if someone is the copyright owner over something, they have the right to control who makes copies of it, and how many copies they can make, and even what can be done with those copies (such as on-selling them).

This has a particular significance when we’re talking about physical items. So, the owner of copyright in a book has the right to control who gets to print it and sell it.

But since we’ve moved into the digital age, it’s so much easier for someone make an unauthorised reproduction of it, just with a couple of clicks.

However, the law still says, that if someone does this then the unauthorised digital file can also be an infringement. Interestingly, when we talk about things that relate to our educational activities – a syllabus, a learning plan, readings, content, videos – lots of different layers of copyright might apply to each of these assets.

A diagram would be an artistic work, protected by copyright. A detailed lesson plan with thorough case studies, and examples might constitute a literary written work.

But also, a digital SCORM file, including things like the written computer programming code and instructions – including source code and an online learning experience would also technically constitute a literary work, under copyright law.

So much of the core teaching and learning tools that underpins what RMIT does is a copyright asset.

What is the difference between “Open Access” and Creative Commons?

Great question! When a person creates a copyright work, they will own the rights to control its copying.

If they choose to, they can make their work available to everyone else by applying a creative commons licence over a standardised kind of licence, through which a copyright owner can say “I own this, but I give everyone in the world permission to use it however they want.”

Or they can say “I own this, but provided that you attribute me as the author, you can use it however you want.”

Or “I own this, and you can use it however you want, provided that it’s not for a commercial purpose so you can print my image on your own t-shirt but you can’t print it on other t-shirts and then sell them.”

Open Access education and pedagogy is like a creative commons approach, but it’s designed to make copyright assets available for educational purposes, i.e. content to support teaching and learning.

RMIT supports our staff making content available on an open access basis. By making our educational assets available on an open access basis, we’re enabling greater and more equitable access to valuable learning resources.

However, open access won’t be the right choice for all kinds of learning assets. Some assets we create might be so resource intensive and expensive to produce, that, financially, it wouldn’t make sense for us to give it away for free.

Other content might be heavily dependent on materials which third parties have written – we can’t make other people’s content available as open access.

However, other teaching and learning assets might make a valuable contribution to society if we did make them available as open access.

In the light of understanding what copyright is, RMIT could be seen as a pool of IP/ copyright creators, what does RMIT consider to be a copyright asset?

Yes, RMIT is full of excellent and original thinkers, and people using their creative and intellectual skills to create new copyright works.

It’s a pretty standard legal position (including in the Copyright Act) that when an employee creates a copyright work in the course of their job, copyright in that work will belong to their employer.

This is because the employer is paying the employee a wage or salary, and in exchange for that payment, the employee’s work products will be owned by the employer.

This is the general rule or starting position.

There might be differences or carve-outs for certain kinds of works, depending on what they are, or the circumstances in which they are created.

So essentially, the starting point is most things that an RMIT staff member or contracted member of staff creates as part of their employment duties is copyright owned by RMIT.

With the emergence of AI tools, we’ve seen requests from authors of open textbooks to use AI created content such as text and images. Who owns copyright in the resulting content?

AI and the use of Large Language Models (LLM) definitely present some challenges in the copyright law space. This is one of the areas where the law has struggled to keep pace with technological advances.

The short answer is that the jury is still out on who owns AI generated content, and whether it can be protected by copyright law, or if it falls between the cracks of current laws.

The core of copyright protection was designed to protect those works which are generated from the application of human intellect, skill, and creativity.

For some countries – including Australia - things like a large automatically generated database compilation which doesn’t necessarily involve actual human intellect or creativity in its production won’t be protected by copyright.

The source code which instructs the program how to create the database will likely be protected by copyright but not necessarily the output.

However other countries have put in place special laws to protect automatically generated databases, because they’ve recognised that large databases are an asset with economic value which are worth protecting.

There’s also a line of argument to suggest that certain kinds of AI generated work should be protected by copyright, because prompt engineering is a skill, and involves original thought and creativity.

But different countries are struggling to come up with ways to respond to the impact of AI.

When it comes to collaboratively creating content, such as RMIT staff collaborating with students to create educational materials, do the authors need consent from the students as collaborators in the release of the work?

At RMIT, the general position is that students own the intellectual property in the work they produce for their courses – such as exam responses or assignments.

There are different rules for things like certain research activities, where a student is doing research and using RMIT or industry partner facilities and resources, or on a placement within an industry partner’s business, including circumstances where a student receives a payment for their work.

In these circumstances, the party which is paying for the activity – either RMIT or the industry partner will own the output of the student, with a carve-out that the student will own the copyright in their thesis.

Where an RMIT staff member and a student collaborate to create educational materials, there might be a question mark over who owns that content – so the way to ensure that everyone is clear about what can be done with the content is to get a consent from the student or enter into a release agreement with them.

Conveniently, the Library team can help with this.

This is not one of those things where it’s ok to ask forgiveness, rather than permission – when it comes to IP, it will almost always be better to get permission and consents first, so there’s no misalignment of expectations later.

RMIT has strong industry partnerships, these partnerships often lead to collaborations in the creation of educational materials. Who owns copyright in a collaboration, where multiple authors have contributed to the creation of the work?

The legal position is that if multiple people collaborate to create a work, then, generally they jointly own the IP in what is created. Which sounds lovely in theory.

However, what this means in practice is that none of the authors can do anything with the work, including commercialising it, without the approval of every contributor.

This makes it really difficult to actually do anything if each of the team has slightly different ideas about what they want.

It’s generally a better approach to agree upfront which party will own the IP and be responsible for commercialising it, and that they factor this into the price the other contributors are paid for their work; or to factor it into the allocation of royalties for any licensing going forward.

More information:

Check out other open textbooks through Pressbooks, RMIT's publishing platform
Get in touch with the Library for assistance with the open publishing process, pressbooks and copyright compliance
View the full conversation transcript here
Find more Teaching Spotlights here

31 July 2024

Return to Next in Teaching

31 July 2024

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