This session was focused on practical and legal issues that apply to and impact on open education resources and open education projects.  Although there are clearly content licensing issues that apply to work in this space (and which link to concerns about control over content), there are a number of concerns that go beyond content licensing.  These further concerns include possible liability; the transition from proprietary (and closed) to more open models; institutional policy; access; localisation and contextualisation; translation of legal concepts from one jurisdiction to another; technical standardsand defamation, to name a few.

Ahrash and Delia proposed that the group split into three smaller groups which would focus on specific contexts for more detailed conversation. David Wiley suggested that earlier stage projects may benefit from a more detailed analysis than older projects which have already addressed many of their practical and legal challenges.

One of the groups included Sarah Lilburn, Andrew Rens and Meital Duvdevani (see above) and they were later joined by Prashant Iyengar from the Alternative Law Forum. Meital represents Creative Commons Israel which operates out of Haifa University's Faculty of Law. Her project is concerned with creating bridging structures between various stakeholders and to use those structures to mediate between these various stakeholders who often have conflicting commercial considerations (for example, students want material for free and publishers expect compensation for their works). There is also a degree of ignorance about the law and liability issues. Andrew represents the Shuttleworth Foundation and the issues he is particularly concerned about loom on the horizon and include fair use and related policy issues. When it comes to teaching materials it is necessary to show students what has transpired and which pertains to the subject matter concerned. Much of that material is established already and often can't simply be re-licensed under a more accessible content license. Sarah asked a jurisdictional issue in the context of uploads to websites like YouTube. Andrew explained that while uploads to those sites often make users of the services subject to the jurisdiction that applies to those services even though local legal systems often exercise jurisdiction over users in those regions regardless.

Sarah mentioned that she uses content subject to different CC licenses and said that it is not always clear which licenses are compatible with others (Jessica Coates from CC Australia has proposed that a guide to license compatibility be developed). A number of people have mentioned that it is not always readily apparent how to use content licensed under different licenses together.  

Another issue which was mentioned concerns the use of very limited excerpts of content in respect of which all rights are reserved and where that excerpt is used in a larger work. Where the jurisdiction concern lacks the protection afforded by a form of fair use or fair dealing, the challenges to the use of that small excerpt by copyright owners alone could make it make it unfeasible to publish the greater video. The solution which was presented was to perhaps publish content to a service falling under a jurisdiction which has a more permissive legal system (for example where a fair use exception applies and which would render such a use of otherwise protected content permissible). This may not be a complete answer to the problem and the region in which the content is created may still exercise jurisdiction. These sorts of restrictions present a quasi-legal barrier to the use of protected content without costly litigation.

Returning to Meital's questions, Meital pointed out that fear of possibly negative consequences played a role in how the various stakeholders work towards facilitating more open access. There are strong commercial considerations which detract from this shared goal. The situation requires innovative and collaborative solutions which could potentially involve librarians as a form of mediator between these competing considerations.

Stakeholders like academics have other forms of rewards that could be part of the solution. Academics receive recognition for their contribution to educational materials and although there is some value in this, it is still not a complete answer to the overall problem because it doesn't readily translate into direct income which remains an important consideration. Another solution presented is to create or take advantage of a prestigious open publisher with a recognised brand or imprint to facilitate the shift towards more open access. Other fears include the fear that freely publishing courseware materials may deter students from attending classes so the tendency there is to restrict access to that content. Andrew discussed the more open approach adopted by the University of Cape Town which incentivises academics to publish their courseware materials. Another option is to require students to contribute towards a growing body of courseware materials on a shared wiki, for example, which has the result of an up to date body of content through ongoing contributions. Although these issues were raised in a specific context, they appear to be common issues in the educational sphere.

The smaller, breakout groups then reported back to the reassembled group on the discussions and findings from the individual sessions with a view to eliciting feedback from the whole group together with possible solutions. Other issues raised by other groups included sustainability, connecting projects around the world, access to content; localisation from, for example, university level content to high school content as well as regional localisation; incentivising greater participation; access to the content, particularly by illiterate people; intellectual property issues through a cultural lens as well as the the need to implement policy from the top down (in Vietnam the Department of Education is making content available to academic institutions under Creative Commons licenses).

Ahrash proposed that the group should consider a joint policy statement in further sessions and how initiatives like the Cape Town Declaration could be applied and even extended.

Pictures by Paul Jacobson on flickr.com, CC BY-NC-SA 2.0