Okay here’s the question: Let’s say I create a presentation, a podcast, or a video as part of my work here at the University. I think I did a good job on it and I want to share it with the world. I slap a Creative Commons license on it and say, “Here it is. Enjoy.” The thing is, was it ever my right to put a CC license on it in the first place? If I created it as part of my work, did I have the right to share it with the world?
Now let’s move to phase two.
Let’s say I use a University service, a website on a UW server, to share it with the world. As part of using this service, the Terms of Use states that the University retains copyright control of that presentation, podcast or video. So what does that mean? Does the University retain the CC license I placed on the work or is that license nullified? Is the University obligated to share the work under the terms of the license?
What do the three people actually reading this blog think?
Entries (RSS)
April 11th, 2008 at 8:50 am
Ron - great question. If only we really did have 3 readers to discuss it!
I started wondering about this back when we first got going with podcasting. We licensed a few of our podcasts (e.g., Personalidades) under creative commons. We’ve also cc licensed things like our Audacity Guides.
A few months ago we got started on our “tools for teaching and learning” series which we hope will help us get the word out about interesting innovations available to instructors in the College of Letters and Science. Like everything we create for our jobs (including this blog, I guess) these publications will be © 2008 Board of Regents of the University of Wisconsin System. Does that prevent us from licensing them under creative commons?
I haven’t heard anything absolutely definitive yet, but we think at this point that the answer is “no.” It would be interesting to hear if anyone else has gone down this road already, and has the answer.
April 11th, 2008 at 8:58 am
I am not a lawyer, and most especially not part of University legal counsel. Call them! They will help.
Phase one: As I read UW System policy over instructional materials, the UW would not assert any rights in your creation, since the UW didn’t go to any specific effort to enable it over and above what it normally provides you to do your job, and you weren’t specifically hired to create the materials. There would have to be a specific written agreement to turn your work into “work for hire.”
If your creation falls under the “research” umbrella, you are even further protected.
Phase two: Where have you found a university service that requires copyright transfer as part of the ToS? The MINDS@UW service, for example, asks for a license to hold, display, and preserve the work, but the license is specifically *non-exclusive*, meaning that you can still do whatever else you want with it. MINDS@UW also allows (encourages!) CC license assignment.
You’re not wrong to worry about a copyright transfer agreement, but I’ve honestly never seen one on a university service.
April 11th, 2008 at 10:06 am
Thanks for the comments Doug and Dorothea! Just waiting on that third person to chime in! :)
Dorothea, I have two questions:
First, with Minds@UW, does the license absolve the University in the event of a dispute over the copyright of a work?
Second, did you work with legal counsel here to craft the agreement and did they encourage the use of CC agreements or are you (Minds@UW folk) doing that on the side?
April 11th, 2008 at 11:09 am
Question one: The MINDS license asks the depositor to assert that s/he has sufficient IP rights over the work to grant the license. I will look over an item for copyright issues if asked to (or if I’m doing the deposit on behalf of someone else), but for the most part I assume depositors are responsible people.
If I were to learn of a dispute, I would immediately withdraw the item (which hides it from public view but does not actually delete it from MINDS) and contact the depositor in hopes of facilitating a solution. As yet it hasn’t happened.
As for absolving the university, since the university doesn’t try to hold copyright to items in MINDS, it is a fairly unlikely lawsuit target. Litigious owners would have to sue the granter of the license. It’s not perfect, but copyright management can never be a matter of complete freedom from risk.
Question two: I inherited the license, as I am the second person to hold my position, so I don’t actually know whether the license was run past Legal Services. I trust my predecessor and my colleagues to have acted responsibly, however!
There’s a larger campus conversation about sharing and openness in all this that definitely needs having. If you’re available tomorrow (Saturday) afternoon, the library is sponsoring a workshop on IP sharing. Please consider coming! Pavlovski and Baker are movers and shakers, and should be worth hearing — and after they speak, there will be an open discussion.
April 11th, 2008 at 11:23 am
Why not make it 4 readers :)
I’m also not a lawyer, but when you’re the creator and owner of a copyrighted work, you have the right to change the terms as you see fit. Obviously, putting something out as creative commons and then taking those permissions away runs counter to the kind of openness I think we’d all like to promote–but I’m pretty sure you could do it.
One way around this would be to upload a piece or derivative of the work to the service. That way you still have a different work that you can grant permissions in any way you see fit.
And I’ll echo Dorthea’s invite to tomorrow’s event. As I understand it, Creative Commons will be a big part of it.
April 11th, 2008 at 11:30 am
Well, that’s not completely true, John. If you grant a “non-revocable” right to someone over a piece of intellectual property you own, you can’t just yank it back. According to CC, a CC license is non-revocable, so someone using your work that you have CC-licensed should be fine even if you change your mind about the license.
(The sticky bit is proof. If you remove the CC license indicator from your work, and then sue a user, it would be the user’s burden to show you ever CC-licensed the work.)
Derivative works get sticky as well. If you make a work, sign over all rights to someone else (as, for example, with a publisher’s copyright-transfer agreement), and THEN make a derivative work, YOU HAVE INFRINGED on a copyright owned by someone else, even though you were the original creator!
Copyright is tough. It’s worthwhile to seek help!
April 11th, 2008 at 3:29 pm
I would be chagrined to see a university service require assignment of copyright as a condition of service. But to answer the question as posed, if the terms of service require it, and you accept those terms, then you’ve assigned copyright, period. It’s just like so many publishers’ agreements. But I don’t see why the university service would find it necessary, or even desirable given our mission to promote knowledge, to make that requirement. As Dorothea pointed out, library services like MINDS@UW and UW Digital Collections ask for permission, not property rights. When downstream users ask for permission to reuse something in our collections, we send them to the copyright holder.
We have, on rare occasions, had someone challenge our right to make something available in the Digital Collections, even when the depositor asserted to us they had cleared the rights. In each case, we immediately removed the item from access until the issue was resolved, and that took care of it.
April 11th, 2008 at 4:26 pm
@Dorthea: thanks for that point of clarification on CC being non-revocable. I wonder though, since that point isn’t clear when you choose your license, do many creators know about it?
Also, just to be clear, I was thinking more of planning ahead. If you make an original, but assign rights on the derivative work, as far as I know you keep your rights in the original.
Copyright and licensing is complicated, but fun stuff :)
April 13th, 2008 at 10:58 am
Am I the third person?? I might have an interesting perspective on Ron’s original question since I’ve moved from institution to institution recently, so this came up (informally, as we were sorting through what to do with my work… what needed a copy left (and what of that was my intellectual property), what should be taken with, and what needed to be created.
When I left my previous employment, of course I left things required to run particular programs, data and materials collected under the auspices of the program, etc. The professional articles and presentations I did were my own intellectual property, and I did them on my own time (if we define that as the work we do after 40 hours, which is a distinction I should make more often!). But the conversation was also that most of the instructional materials (presentations, workshops) I designed were mine to keep or share, as they were my intellectual property. This seems like the “policy over instructional materials” thing that Dorothea cited. I’m not sure whether that officially applies to academic staff at either university, but I think that was the decision and conversation because it’s the right thing to do. For all practical purposes, another person cannot simply pick up these materials and reuse them anyway, as we all know. As a professional, I summarized my work and shared those examples I thought could most help sustain programs and took the rest with a standing offer to share more if needed. I don’t think we (the 3-4 of us) always do a good job of defining our work as intellectual property, or of crediting the intellectual property of others who work in similar capacities.
If you asked me what contracts I’ve signed or what the universities policies are about those things I’ve signed, I have to fess up that I sign what I’m given. Usually, I’m too busy and it’s an afterthought, and I haven’t published all that much. I do know librarians who are more activist about this. I’m usually too relieved that I got the product out the door or have made it through the decision to sign the contract. And want to reclaim the hours I would spend sorting it out as my “own time.”
April 16th, 2008 at 9:04 am
This has been an interesting discussion!
Sarah’s comments provide good examples that can be matched up against the UW System policy paper on copyright that Dorethea mentioned earlier. This policy paper describes 5 conditions that can be used to determine the ownership of copyrightable instructional materials:
The projects that Sarah completed on her own time would clearly be examples of conditions 1 or 2 in the policy paper.
But it seems to me that pieces of Ron’s initial example aren’t so easy to plug into that policy. Take the instructional podcast that Ron mentions as an example.
Using the policy paper as a guide, you might say that podcast would be classified condition 2 - minimal support.
But, if the podcast is recorded in a campus recording studio, or with equipment purchased with university funds, you’re now up to condition 3 - “Substantial support.” The policy paper defines “substantial” way down at the bottom of the page:
This definition would also seem to cover the second half of Ron’s example, where the podcast is distributed through a campus service or on a departmental server. And, the part that says “direct investment by the university of funds or staff” seems to say that any time an instructor works closely with an instructional technology consultant, you’re already up to condition 3.
And, I’m sorry to say that once you get to condition 3, you run into the following
Which, to my mind, is a bit much to ask if all you want to do is create a podcast!
April 16th, 2008 at 10:46 am
I actually did contact University counsel on a closely related point several years ago, when I was writing some software on company time that I wanted to GPL. I was told that it was fine to do so provided that I got permission from my Dean/Director. Since CC is broadly speaking the same kind of thing as the GPL (a license for copyrighted materials) I would think that advice would apply here as well. Sadly, since intellectual property has become such a hot-button item these days it can be more difficult to get such approval.
For another angle on this whole subject, I recommend Rudyard Kipling’s “When ‘omer Smote ‘is Bloomin’ Lyre”.
April 16th, 2008 at 1:58 pm
Here’s a link to When ‘omer Smote ‘is Bloomin’ Lyre - thanks Bruno!