PCF5:Open educational resources - copyright
Title of session
Panel of Specialists on Copyright in Open Educational Resources
Paul G. West (Chair) (Opening Presentation)
Achal Prabhala (Facilitator)
Clarification Document on Creative Commons "NC" and "ND" Restrictions prepared by the COL Copyright Group (Clarification Document)
Julien Hofman: Presented a book to be published by COL Introducing Copyright (Introductory Note)
Lucinda Longcroft: WIPO’s role in copyright reform (WIPO)
Tobias Schonwetter: Exceptions and limitations for educational use in copyright law 
Prodromos Tsiavos: The meaning of NC and ND Creative Commons licences (Presentation)
Denise Nicholson & Jeremy de Beer: The work of the African Copyright and Access to Knowledge Project (ACA2K)
Richard McCracken: Copyright licensing in education and journalism – the need for a more flexible view of licensing
Key Issues that arose in the session
1.There is no clarity about some of the details of the Creative Commons ND and NC licences that many institutions are being encouraged to use for Open Education Resources.
2.Questions from the floor concerned:
Whether a contract could “trump” the exceptions and limitations in copyright law? The panel agreed that this would depend on domestic copyright legislation. But as a general principle it would seem that if the legislation expressed the limitations in clear and prescriptive terms the legislation should take priority over a contract. It might be very difficult to allow this in practice when the copyright material was protected by DRM.
Whether copyright was an absolute right? The answer was that copyright was not an absolute right but had to be understood subject to the limitations contained in the domestic legislation that established copyright.
What was the exact meaning of non-commercial in the CC NC clause: This question referred back to the slide presentation by Prodromos and comments from other panellists.
The possibility that COL would develop a licence or set of licences that would be appropriate to the needs of individuals and institutions who want to distribute Open Education Resources.
Information Sheet on Creative Commons
“NC” and “ND” Restrictions
COL Copyright Group (July 2008)
The following document was distributed at the meeting and served as a basis for the discussion. Please see www.col.org/copyright for the latest information on this topic.
The No Derivatives restriction means:
You may download an ND work, copy, communicate and distribute it, provided you do not change it in any way.
You may include the complete ND work in a collective work – i.e. as one item such as one article or picture in a collection of articles or pictures. You may include a complete ND work in a study guide and refer to sections in it.
You may change the computer (electronic) format, in order to copy, communicate and distribute the work. For example, if the work is in MS DOC format, you may change it to ODT or PDF.
If you want to translate the work into another language including Braille, make changes to the work, or copy substantial excerpts from it, you need permission from the rights holder of the work (this is typically the author, institution or publisher who made the work available).
The Non-Commercial restriction means:
The NC element in the CC licences means that you may use the work only in the cases described as follows. For all other uses you need permission from the rights holder of the work (this is typically the author, institution or publisher who made the work available). The rights holder may ask for a royalty from your profits or for a compensation for the transaction.
You may distribute NC licensed works over peer-to-peer networks.
Allowable NC User
You may download an NC licensed work, copy, communicate and distribute it, provided you, are a non profit organization, educational institution or library according to your national law and no money changes hands in relation to the work. If you are a commercial organization, you may still use an NC licensed work in the way defined above provided you are using it in the context of a non-profit project and provided you can show that the project that includes the work was budgeted on a break-even basis.
If you fall under any of the above categories of NC licensed work users, you may use the NC work without obtaining any extra permissions from the rights holder, even if money changes hands, provided you meet the specific conditions described in the following scenarios:
1. If you plan to use an NC work for an advertising campaign you need to obtain permission from the rights holder. (e.g. Alice’s CC_BY_NC licensed photo of University X cannot be used by University X’s for its advertising campaign).
2. If you plan to make access to your educational material conditional upon viewing of an advertisement (e.g. click-through advertising of a publisher) or you include advertisement in your material (e.g. inclusion of a campus bookstore or a publishing house in a podcast of your educational material), you need to obtain permission from the rights holder.
3. You may provide an educational service (e.g. fees paid for a course) when the use of CC material is incidental and qualitatively or quantitatively insignificant to the service (e.g. you charge ONLY for the teaching and NOT for providing the study packs or a minor part of the material is CC_NC licensed) even if there is money changing hands in relation to such service.
4. If there is money changing hands as a condition for accessing the work (e.g. charging for the access to a CC_NC licensed work in the context of a course), it would be good practice to obtain permission from the right holder.
5. If money changes hands as a condition for accessing a work which is made up of other works (e.g. an anthology) and the CC_NC licensed works are a significant qualitative or quantitative part of that collective work, you need permission from the right holder. 6. You may introduce an optional-only contribution in relation to the use of a CC_NC licensed work or a collective work of which a substantial part are NC licensed works.
7. If you produce a derivative work based on a CC_BY_NC_SA licensed work, you may only use the derivative work in relation to a monetary exchange only under the conditions described in the scenarios 1 to 6.
8. If you produce a derivative work under a CC_BY_NC licence, you may use the derivative work in relation to an exchange of money only if the original work is a qualitatively and quantitatively insubstantial part of it (e.g. inclusion of a single resized and processed NC licensed picture in a 200 pages study pack) or the monetary contribution is optional (e.g. accepting donations for the distribution of a textbook comprising of various excerpts from NC licensed works).
You should note that the definition of terms like “non-profit” or “non-commercial” vary across different countries’ legal systems. Creative Commons is consulting with users and legal systems in an effort to standardise the meaning of “non-commercial” in accordance to the national legal systems where the licences are applied. Potential users of this licence may need to seek clarification, or consult legal advice with a jurisdiction expert prior to using the licence.
African Copyright and Access to Knowledge Project (ACA2K)
After the panel discussions on Creative Commons licensing, Prof. Jeremy de Beer from the University of Ottawa, Canada, and Mrs. Denise Nicholson from the University of the Witwatersrand, Johannesburg, South Africa, as representatives of the African Copyright and Access to Knowledge (ACA2K) Project, introduced this research project within the context of international and regional copyright trends. In the short time allocated, they highlighted its aims and objectives and Research Methodology Guide available at http://www.aca2K.org.