June 2018 Office Hours: MOU, Contracts, Agreements

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Audio Transcript


Meredith Jacob, Ann Ludbrook, Karen Lauritsen, Zoe Wake Hyde, Apurva Ashok, Amy Hofer

Karen: We are a community working to improve education through open education. And our members now represent almost 800 institutions. And we build capacity through professional developments and provide multiple pathways for publishing support, which includes this partnership with Rebus community and also Pressbooks. So, we’re here today to talk about MOUs, contracts and agreements.

Who doesn’t want to talk about that? Of course, they’re often starting points for creating open textbooks and really necessary in clarifying expectations and responsibilities during the creation process. I know there are some people in this call who are thinking about contracts and possibly re-reading them as different issues come up and projects progress. We are going to talk about specifically the adaptable OER publishing agreement, which we collaboratively created with Creative Commons USA.

And Meredith Jacob is here today to a lot about that process. The Rebus community was involved, and different members of the Open Textbook Network also engaged their counsel and copyright librarians in reviewing early drafts. So, this document was developed in a way that we hope makes it easy for you, and other institutions to edit it and meet your own campus intellectual property policy requirements.

So, that’s in the chat, I’m happy to share again. I’m not sure if when you enter the call if you’re able to see previous chats, historically. So, let me know in the chat, if you can’t see the link. Okay, you can’t. I see Kathy cannot, okay, I’ll paste it in there. So, if you have not been to an Office Hours before, it’s very casual, this is really your conversation to drive.

We have two guests joining us today, and they will talk briefly about their experience with agreements, their perspectives on where they’re important or not. And recommendations they have for you, as you implement or use these for your open textbook projects. We have two guests joining us today. The first is Ann Ludbrook, who is copyright and scholarly engagement librarian at Ryerson University in Toronto.

And Meredith Jacob, who’s assistant director program on information justice and intellectual property, public lead Creative Commons USA. She’s at the Washington College of Law. So, Meredith, I’m going to turn things over to you. If you would like to kick us off, and away we go.

Meredith: Great. Thank you for having me and thanks for everybody for getting on the call. So, let’s start at the beginning, which is the question of why you would want an MOU or a cooperative agreement or a contract. And I think sometimes people can start down the wrong path, of thinking that you don’t need a contract if money is not changing hands.

And at least in some OER projects if professors are doing the work for free, or if they’re doing them through some other program, where the money is being disbursed separately, there could be this idea that it’s not important to have a contract because there’s no money exchanging hands. And I would argue that in fact, viewing contracts about being just some money sort of misses a lot of the important function that they have in making sure that at the outset of the project everyone has the same expectations, right?

So, I think contracts serve a really important role in writing down and memorializing what everybody intends to do at the point where both parties still have the ability to negotiate that. And where you have the ability to either fix problems, in your understanding or to not go forward. Because once the work has been created, it can be a lot harder to go back and change what you agree between the two of you.

So, I think the first thing to think about when you think about what your contract or MOU does is to agree on ownership and authorship of the work. So, for many higher education institutions there are policies in place about faculty ownership of their own scholarship. And a lot of institutions that are either less clear or different for materials created for in class use than it is for scholarship that’s created and published in a journal, or as a book.

And for OER materials, which often take faculty work that has been created in the course of teaching and then formalizes it, it’s really important first of all just to agree on who the author is going to be in the case of multiple authors, possibly or individuals and institutions. And then, also who is going to own it. And so, in these contracts you can lay out whether the owner is going to be the authors themselves, or the institution.

And the choices are there, so I think it actually matters less what choice you make in the contract, but just that both parties are clear at the outset. So, that’s the authorship question. It’s also important to know what under copyright law, if you are making an assignment it has to be explicit, it has to be in writing, and if you are there’s obviously only certain categories of work that can even be considered work for hire if they aren’t in the course of your employment.

And so, the formalities matter, so you can get to a point where even though you thought you agreed on for example transferring ownership to the institution. If you didn’t go through certain formal steps in the contract, you may not have actually done that in fact, which is also important to remember. It’s also important to have a contract or agreement so at the outset of the project the material is licensed under an open license.

So, you don’t want to have a situation where an author creates something and then changes their mind about the open license later in the process, and you don’t have the ability to go back and renegotiate. Or just say you know, “Actually I’d rather keep this”, and that’s a lot of lost time and effort, even if it’s not lost money. And again, there in the contract it should say “the author licenses this”, not that they agree to do so at some future date.

But that they license it in the contract itself. And that’s something you can see in the adaptable OER agreement as well. And then, finally I think it’s a good way to memorialize other details in a central place. So, it’s not just a sort of long boiler plate of legalese. It’s also a plate to in a formal, standardized way agree on what is going to be delivered? So, are they delivering a Word doc?

Are they delivering a print ready file with images? Are they delivering both of those things, plus online simulations? Like, write that down in one place. When are they going to deliver it? What’s the penalty if they don’t deliver it? Can you take an incomplete delivery and get somebody else to update it? If everything is done perfectly and it is delivered on time, and you go ahead with it, who has the right to update it in the future?

The open license gives anybody the right to do it from a copyright standpoint, but just from an institutional goodwill standpoint, you might want to agree whether they have sort of first right of refusal to do it, or whether they don’t have any interest in doing it. And all that stuff just agreeing about it, and really reading it and making sure it reflects the intention of both people at the outset is super important.

So, you should have a contract or an MOU so that you know what you’re agreeing on. And I would humbly argue you should use this one or another fully fleshed out real contract, so that it does all of the enforceable pieces about copyright transfer and licensing that you mean to do. But I don’t think that you want to, I think too often people look at contracts like this, like the Apple or click through licenses, or the ones you sign at Verizon where like you just want to scroll through it as fast as possible to find the place where you sign.

And I would really encourage people to not treat them that way, to say does this do a good practical job at setting out what we think we’re going to do? Who’s going to do it? When they’re going to turn it in? What form they’re going to turn it in? All that stuff is a well written contract should do that for you, in addition to doing the legal pieces. And so, that’s my pitch for what this is, and why you should use it.

I’m not going to walk people through the agreement itself. I think most people already looked at it, but if there’s any questions about any sections of the agreement happy to discuss that in the Q&A section of the call.

Karen: Thank you, Meredith for the introduction and overview, and thank you very much for creating this agreement and sharing it with us. We are very grateful and are really happy to have your expertise. So, Ann, I would like to turn it over to you and your experience.

Ann: Yeah, so what happened at Ryerson is that we actually had contracts coming in from an outside organization that were granting giving us grants. The contract was actually quite complex, and in fact our Ryerson counsel read it and they actually advised eCampus on what was wrong with it, because in some cases our deliverable was just a report and not the actual (laughs) textbook or learning resource.

So, it was interesting that they themselves had crafted an agreement that had holes in it, that actually gave us no real deliverable. So, that was actually I think in the next round improved because the Ryerson lawyer actually agreed to help with that. But we actually didn’t do for our first stage grants we didn’t actually have, we don’t have MOUs with students, and we don’t have, we didn’t do MOUs with some of the extra authors that agreed to do it.

So, in a sense we are going to be doing backtracking to get that done. And one of the issues was there wasn’t this adaptable open educational resource template is really good. Because before creative commons just even would just link you out to normal agreements. Legal agreements that you would have, where the creative commons issues are different. Like I read a lot of different agreements, but in some ways creative commons, CC BY agreements are actually more difficult.

And there’s more issues to think about than even agreements that you might have for textbook, like a regular textbook. I used to work in the textbook industry where we might say in an agreement that we sent to authors that you don’t have to worry about screen grabs ’cause we would make risks analyses. And you don’t make risk analyses with creative commons grant materials, you can’t do that same kind of thing, because you don’t know how it’s going to be used further on down the long path, under CC BY license.

So, it actually is more complex and more difficult in terms of images and a lot of content that goes into the materials than it is in just traditional textbook publishing. I think that there are more things to worry about, and more things to be aware of, just in terms of images, how you’re going to be doing the citations, is it going to be creative co-? Everything is CC BY except as noted. So, I think that there’s lots of issues to think about.

So, what we’re doing for our next round of grants, is as that’s generally how in Ontario right now a lot of open projects are going forward. Our library as well is going to be funding some open education resource grants. And so, we’re going to be onboarding much more with agreements like this adaptable open educational resource but also the memorandum of understanding templates that Rebus has created in their students’ guide.

Because we’re hoping that one of our ways that we’re going to go forward is to have students, it’s been very successful having students help with open textbook production. And so, we’re going to have to have those memorandums of understanding. Because they’re not, often students we hire for these kinds of projects are working on research grants or they’re as research assistants.

So, they’re not technically in the same kind of employment statuses as if they were a work-study student. So, they’re an employee, where their work is covered. So, that’s going to be really important going forward. So, even though I had copyright expertise, there was a learning curve for me, as well, to just understand how much more rigorous you have to be with a CC BY license, in particular. Any questions? Or is that enough?

Karen: That’s great, thank you, Ann. It’s fun to be able to benefit from your experience and background in the textbook industry and compare that experience with open education. So, that is it, in terms of guests giving their introduction. And now, really we would like to hear from all of you. Your questions, your case studies, what you wish you had done, scenarios, both past and present. So, feel free to unmute, or give your questions in the chat. And take it away.

Zoe: So, I may actually jump in first. If I may? Just to look back on the MOU that Ann mentioned with students. So, this is I think a very, very light version. I’m fairly sure I wrote this (laughs) of what this can look like. And I think it actually provides a nice balance because there are other relationships going on in textbook publishing other than say institution and faculty member, or publisher and faculty member.

And this was a way for us to try and start thinking about those relationships as well. And doing exactly what Meredith said, of trying to be really upfront about the implications of the work that the student was about to go into. And I think particularly with student work, we really want it to be clear in that sense.

And in our own experience with working with the projects that we’ve been working, we haven’t really, because we haven’t had the same formalized relationship of publisher and project, we haven’t gone into in much more detail than this. But we like this student one as a framework for those other kinds of relationships that are involved. That said, as I say, it was drafted in house and feedback would be welcome on it.

It’s definitely not as rigorous as the kind of things that Meredith and Ann have described. So, I just wanted to provide a bit more context with that. And now, over to anyone with questions.

Karen: Amy shared an MOU in the chat that she’s using. Amy, would you be willing to talk a little bit how you came up with that?

Amy: Sure, yeah. So, I started with a kind of standard contract template, that worked for Lynn Benton, which is the fiscal agent on Open Oregon’s grant from the State of Oregon. And to me, it’s scarcely matters really what’s on it, as long as it lets the people in the business offices feel like they understand that we’re starting this process. Someone’s going to have to write an invoice, Lynn Benton is going to need to pay the invoice. (Laughs)

So, it’s sort of a way for everybody to get on the same page and I just started using DocuSign after hearing somebody talk about it in the context of their institutional repository process. And I thought, “I really need that”. Fortunately, Lynn Benton does have an institutional license. It’s so slick, so there’s a template in DocuSign and it recognizes when I’ve filled in the parts of the MOU that I need to fill in.

It recognizes that it’s created with this template. So, there is a place for the person the project lead to sign, to indicate that they’ll complete the project as proposed. And then, there’s a place for their institution to sign, to say that they will invoice, and they put in their federal tax ID number, which Lynn Benton needs. And then, Lynn Benton countersigns to say that they’ll pay and then, there’s usually like pages of the project proposal.

So that all the details of what was proposed are in one place. But, just to say I don’t know if DocuSign, I think DocuSign is not the only software that automates this. And there are other options besides that. But once I set it up, it goes to the project lead, once they electronically sign it, it automatically goes to the next person. And then, it automatically goes to the next person, and it will even automatically nag people. (Laughs)

So, it’s like saving me so much time and saving a lot of printing and scanning and like horrible PDFs, so it’s hopefully going to be life changing.

Karen: It almost sounds magical. Thank you, Amy.

Kathy: This is Kathy, can you hear me?

Karen: Yeah.

Kathy: I have not even considered students in the MOU world. And I’m thinking of course of actual actualham – what’s her name? On actual?

Karen: Robin deRosa

Kathy: Rosa, okay. So, in Robin de Rosa’s case, the students are actually helping write the item. Now, here at Yukon I have the faculty get their pay, their money for their OER. And then, they can use that to pay grad students, or whoever to do the grunt work, and so forth. Is that the kind of person that we would want to give an MOU to? Is that the use of a student, or are you talking just about creative end of things?

Ann: Are you directing it me? I can say, just in terms of, if it’s a research assistant, research assistants, it depends on how they’re being hired. In Canada, anyway, it really is the employment status, if you own the copyright or works that are being done by students. So, the researcher writes out a report for you, and you didn’t, and they were not employed in as an actual employee of your institution, then they could be considered freelance.

And then, they would own the copyright to the material. So, it’s actually part of in certain employment thing, [inaudible 0:20:33] ask for they sign employment agreements at Ryerson. I don’t know if that happens elsewhere. But it does happen here, depending on what, especially if there’s commercial aspects to the project. But, I think that we haven’t done that so far with research students that have been working on our projects.

If there were study students, it’s not that they’re considered an employee. It really depends on how they’re hired. So, yeah.

Zoe: And, sorry, go ahead.

Kathy: Well, not me.

Zoe: Sorry, I thought I heard someone jumping in. So, the MOU that we have in the guide has been more focused and was developed more for open pedagogy specifically. And so, Marc asked in the chat as well, whether we could talk more about the process with students, when to use the MOU and so forth. Is it used in each course within an assignment, or only when students are hired to work on a defined project?

So, specifically the MOU that we developed at Rebus for students was about open pedagogy projects. So, with the mention of Robin de Rosa, it’s a similar project to hers, that she had started. We developed this for another anthology project where students would be working with their professors to develop introductions and find the texts. And then, they would submit to be included in the anthology.

So, that was very much about student work being done in the classroom, that they would then be offering up to become a part of the textbook that we are developing. So, I think is a very different kind of case, and that’s then when a student is actually hired or employed, which I think Ann has spoken to very well. So, hopefully that provides a bit more clarity, and Marc, if you have any follow up, please be free to ask, too.

Meredith: I might just follow up on that. I would agree that the Rebus student MOU here, I think serves a lot of good functions about telling students about what you intend. And getting some acknowledgement that they understand that. It doesn’t by itself do anything about copyright, right? Like you have, if it’s in the US, you probably haven’t in that agreement done anything to affect the copyright status of what comes out the other end, right?

They probably haven’t agreed to either transfer the copyright to you or agreed in any binding way to put a CC BY license on it. So, I think it’s a really good document to say “this is what we’re planning to do”. But then, you need to at the end of the open pedagogy process, when you actually have a resource you’re going to publish, they either need to put the CC license on the materials themselves, or they need to formally agree to that.

And so, I think it makes a lot of sense for something like this, where there isn’t an exchange of money or other credit, remuneration, whatever. And so, it’s okay with you if later in the process they say, “No, actually I don’t want to openly license this.” Or, “No, I don’t want to include it.” Whereas if students are being paid or receiving some other graduate credit for creating the work, then I think it’s important that you need to either be very clear in your institutional capacity that they are hired as a regular employee.

So, at least in the US, if you’re hired as a regular, full W2 employee, work created in the course of your employment is owned by your employer. So, in that situation you need to make sure that you’ve agreed with the university that you can openly license this, right? So, whoever is the author has to put a license on, so in theory you know, then it would be the university that owned it.

And so, you’d need to have the ability for the university to agree to openly license it. So, those are the two situations. And if students were being paid in any way, other than as a completely standard W2 employee, you’d want to like if there was any question about like whether it was really a grant, as opposed to hourly employment. Or like the nuances of how student work is supported, I would want to be certain at the outset that I knew how that was going to be treated.

And under US law, the two questions are: person really an employee? And was this work in the course of their employment?

Karen: Meredith, something you said in your introduction sparked my interest. And that was clarifying delivery terms, and a scenario when perhaps the delivery is not made. I’m wondering if you or anyone else who is here on the call with us can share examples of what for lack of a better word, teeth there may be in a contract for if somebody does not deliver what’s expected, or on the timeline that you hope? How do you work in that kind of situation? In the contract setting?

Meredith: Sure. So, when someone hasn’t done that, I think the things you look for in a contract would be what are the penalties? So, is there a financial penalty for late delivery? Like, are we going to pay you less if you deliver late, than if you deliver on time? The structure of if or how payments are tied to milestones in the contract, so do you get paid some amount at the outset?

Some amount when you deliver a first draft manuscript? And some amount when you deliver a final one? So, to think through what makes sense for that, especially in the university context, where because the person is also an employee, like if you were giving someone a stipend, the default might be that it was paid out pro rata over the course of the stipend period, with their regular paycheck and not made as a transfer on the dates of the certain delivery?

Because those two processes for someone who’s also an employee, not just an independent contractor might sort of run separately. I’d think about that. Realistically, you’re not going to take your contracts and go, sue somebody and try to get specific performance, like to try to get them to actually write the book, even though they don’t want to. That’s probably not going to happen.

You probably wouldn’t get it, it’s probably not worth your time. But so, what I would just say is think about that. And then, the other thing probably pragmatically to think about is what you do about incomplete work. ‘Cause I think in a lot of scenarios what happens is someone has most of it, and doesn’t finish it. And so then, the question is about if we’ve paid you half of this money, and you’ve delivered us a decent manuscript, but you haven’t really finished it.

And doesn’t look like they’re going to finish it, can we hire somebody else to finish it and then, use that work? And that’s one of the reasons to get the contract to say that it is under a CC license, not that you agree to license it, that you do license it, right? So, the contract here says “I do license this under a CC license” which means that you don’t have to get agreement at some later date.

That it has actually been done. So, the decision to license happens in the contract, which I think increases your options for having pieces from other people, that are added to the final version.

Karen: Present tense is important (laughs) sounds like. Thank you. Ann, you mentioned that you worked on a project where you didn’t have an agreement and you’re going need to go back and form some of those? Can you talk at all about your thoughts or feelings about how that might go?

Ann: I don’t think it’ll be a problem, because the people, everyone that was involved in the project was told on the outset and agreed to be doing a CC BY license. So, I don’t think it will be a problem, except for one group that actually have already said that they didn’t want it to go under CC BY. So, misunderstood what we had said at the beginning. And if we had had a contract right from the beginning and sent it out, then they wouldn’t have been able to say this now.

So, we’re actually going to have a chapter in one of the projects that’s going to have to be licensed differently from the rest of the book, in a sense. That we’re going to have to put the resource under unless otherwise noted, and then, put their chapter under an NC license. So, I think that it can cause problems, ’cause maybe there’s not clear expectations from the beginning.

I would say that especially with faculty that get grants for creative commons licensed material, is that they often are there for the grant. And not there necessarily for the CC BY licensing. So, it’s very important to get all faculty members, especially if they own copyright to their material on board right away. Anyone that’s involved in our project right now understand that.

But that could definitely be a problem if you’re dealing with someone who isn’t happy in the end and they’ve already done the work. So, I think it can be risky with faculty, in particular. I think students, as well. Students own, if you’re doing something within a course, you really do have to get those copyright licenses from the students. We haven’t done that, yet, at this point, where students have been contributing and writing.

But, if that actually is the case, which it hopefully will be in the future, that’s really important, because you could have a student that just says, “Well, no. I decide I’m not going to for whatever reason.” Because they’re an agent, right? They have their own agency, they’re not affiliated with the institution in the same way. So, I think that that’s really important upfront, if you’re going to have students contributing to the material to actually have the copyright transfer agreement.

Or have them exactly assign the creative commons license themselves, to have that upfront. At this point, I don’t think it’s going to be a problem going forward. I can certainly report back if it is, and sent it, and post it up on… I don’t think it will be a problem. But, it definitely clarifies right from the beginning what you’re doing.

Zoe: I might chime in again, just on the student point, again. Not having been the instructor running it but having spoken to instructors who’ve run open pedagogy projects, that have involved student work going into an openly licensed text. That I know there is a thread through their considerations and discussions of this as well, about that agency that Ann mentioned.

And I wonder if that is in that particular case, actually, an argument for the licensing decision to happen at the end? So that the student is not, there are often concerns about the quality of the work, about it going out into the world them not feeling like it will reflect well on them. And there’s a lot of learning that happens over the course of a project like that, for the students in class about what it means to be writing for an open resource.

So, I know that there are kind of a few more complexities there. And it wouldn’t actually surprise me if some instructors took the approach of actually doing the license agreement at the end, when the students know what they’re submitting and what to, that they’ve had a growing understanding. Just as a counterpoint.

Karen: Meredith, I think you might be talking, but we can’t hear you.

Meredith: I muted my phone, sorry. (Laughs) I was talking to myself. So, I was going to say I think Zoe’s absolutely right, that there are contexts in which doing it at the end is appropriate. And it just depends, like are you doing this in a class and you have every right to say, “No, I don’t want to openly license this”? Or are you doing it because you got paid and then, like that’s the deal? I also think Zoe, you were talking about the worry about how this is going to reflect on them, the quality of the work.

And one of the things I would remind people about, is that that agreement at the end could also be an agreement about how the attribution would work in the final resource. So, for example, you could structure that agreement at the end in one of a couple of ways. One is the students could transfer ownership to the professor, the university, whoever. And then, be listed as contributors, but not be copyright owners and not be who’s attributed in the CC license.

The other option is, and this is a little, I don’t think it’s more complicated, but it is less sort of clearly delineated. The students could choose, because you have the right in the current versions of the CC license to specify how you want attribution. They could say, you know, “I agree to license my work openly licensed. And I agree that the attribution should say 2018 Geology class at the University of Maryland.”

And so, you don’t have to transfer ownership in order to alter attribution. And that’s just another thing that could be done in a situation where that makes sense.

Karen: This leads me to think about best practices in clarifying contracts. So, not just like sending it as an attachment in an email and saying, “Great, sign this, send it back.” Can people talk a little bit about what they have found to be effective in really clarifying what someone is signing? And so, it feels like everyone understands what’s in this document, and that you’ve done due diligence. And remember that meeting we had on March 13th, where we sat down for an hour, I’d like to hear thoughts on that?

Ann: I can talk a little about that, about our new onboarding process. Because now, what we’re doing is we’re actually spending for anyone who is even thinking of doing an open textbook grant for the Fall. ‘Cause there is apparently going to be a round again with ecampus Ontario in the Fall for open grants in certain gap areas and some research grants.

Is that we’re actually having a one-hour grant onboarding session that’s really explicitly talking about what a CC BY license or a CC BY and CC license is. Going through what kind of rights they’re going to have to transfer, what it means. Just to onboard everyone who’s even interested in applying for a grant. Because what we actually had last time, at Ryerson, is we had two people that had received a grant, applied for a CC BY license, it had said clearly that it was a CC BY license.

We thought that they understood that, and then, when they actually got the grant, our faculty association actually sends warning messages to you, saying, “Oh are you sure you want to sign a CC BY license?” Because they’re concerned about it, so we actually had two people that actually it took three or four months to try to get that agreement finalized. Where they finally, they wanted the money, but they didn’t want to sign the CC BY license.

So, I think onboarding before you even, if you have a grant program, onboarding really early with faculty members who own the copyright to their work, so that they really understand what it means. And they’re not resistant, because not all people that are going for open textbook grants are open advocates. And I think that that’s where it was at first, I think that a lot of people, like Rajiv or Robin de Rosa, they are people that were really committed to the open movement.

That’s not necessarily the case when there’s large government grants or state-wide grant programs happening now. They are more doing it because it’s part of a process, and they may not really understand CC licensing at all.

Meredith: Yeah, I think that’s exactly true. The other thing I would say is you can’t, I think it’s very hard. So, the adaptable OER license looks more like a traditional publishing agreement than a lot of the simpler more plain language versions people have used. I think it is stronger in terms of detail and enforceability because of that. But, I do think it means that for the 20-odd people on this call, if you’re handing this relatively complicated agreement to people, and you want them to read it, and understand it, and sign it, you have to really understand it, too.

And you have to be able to answer: why are these clauses in here, why does it say that? What does it mean, when it says that? And I hope in the 20 minutes we have left in this call, that I would encourage people to not feel silly or not feel like they shouldn’t ask, like what does that mean in the contract? Or, why is that there? Because I think, in order to sell it to people, you have to explain to them why does it say this, why is it this complicated, why is that there?

And so, I’m happy to help do that for this contract, I’m happy to take questions after. The other two things I would say is I totally agree that getting it to people really early, so they have a chance to read it slowly and on their own, before they’re in the meeting trying to skim through it. And this sounds silly, but also give people paper copies. I think that for a longer and more complicated legal documents like this, there’s a reason why lawyers still print everything out.

It’s being able to read it and make notes in the margin and not just reflexively skim by paging down is also really important, just in making it digestible section by section.

Karen: And I assume there are also other people one could invite to that meeting, if they wanted some support in decoding the contract, especially in the first few meetings. Would you agree? I don’t know would counsel show up for a meeting like that? Or would you need a copyright librarian?

Meredith: Yeah, I think general counsel, they’re going to be- I think they will understand this, but I don’t think that that’ll be true if you just slide it across the table. Often, they will need the same time to read it and think about it and process it. So, I would say yes, but only if you have had a pre-meeting with them to say, “This is what I want to explain to people. Take a read, just talk any questions, so that we’re on the same page.”

Not to assume that you know what I mean? ‘Cause this is a big university, people don’t do a ton of publishing law, and so you just want to make sure that they’re on the right page, before you put them on the hot seat [inaudible 0:40:06].

Ann: I would also agree with that. What I have found is that as we’ve the CC licensing has really Ryerson anyways, only been a couple of years. And I was actually advising on some of the earlier contracts. Because the general counsel hadn’t done CC licenses for some films that we were doing. This is a couple of years ago. And I think that so there is one intellectual property officer who’s in our research office.

Who’s actually come up to speed more on creative commons, so she might come. But I don’t know, they’re so busy that I think that that kind of work would have to happen and then maybe- Like I will at the onboarding meetings, that we’re going to be doing and explain. But I think that and it’s also, it goes beyond just the contract. It goes beyond their whole process goes into their whole process of how they approach the project.

And how different it is from a regular project in terms of being able to use fair dealing. Faculty are used to using fair dealing or various for using images in research papers. And so, it’s completely foreign to them to think that “Oh, what do you mean? I used that in a research paper, why can’t I use that image on something that’s going out to the public?” One of the things about paywalls is paywalls mean that copyrighted material is not easily accessible.

So, the copyright holders can’t actually see it. And that is the difference, too, is that faculty are using fair dealing or fair use for their research. And then, it’s surprising to them that they can’t, how limited it is especially for image use. So, that have to be onboarded as well, just on best practices for the contracts, but also best practices on how they’re going to have to work.

Zoe: Meredith, I think we can’t hear you again.

Meredith: Sorry, I’m a rogue muter. I’d be interested in hearing from the people on this call, we could think about running a contracting, a CC and contracting webinar? That we could probably run one here, that would be both CLE credit, but also a little bit more useful and sort of hands on. And those CLE things often are. CLEs are notoriously press the button, go make a cup of coffee.

But hopefully, we could figure out a way to do that in a way that would allow GCs to ask questions about this, in a context that was more familiar. So, I do think we definitely, I mean, one of the reasons like we kept a lot of the forma- well, the formalism exists in the adaptable publishing contract in part, because it serves a purpose and because it’s predictable, we know how a court will interpret that.

It’s one of the reasons in contracts to use the same language that everybody does. It’s ’cause you know what courts will say that language means. The reason not to freelance. But the other reason I think is that this publishing contract is modeled on and built on real commercial publishing contracts. And so, it looks and feels like the type of formal legal document that GCs are used to seeing.

And so, I think that that is an important type of signaling, of saying, “No, this is serious, we’ve thought about it, we’ve made these choices.” And I think for us the question would be: what’s the most effective way to support those conversations were? We aren’t I think we can if people get to a real stumbling block for a big project we can come in and do one to one calls. But, that’s pretty resource intensive.

But we’d also like to make these things go forward, so the first answer is if you get really stuck call us. The second answer is we’ll try to figure out a way to do GC focused stuff that probably is different than what we did with public.

Zoe: Yeah, I think that would be great, Meredith. And I suspect actually knowing some conversations we’ve had previously, is we’re probably also due for something around fair dealing in open textbooks as well. And that there’s some overlap there that Ann pointed out. (Laughs)

Meredith: I was being on my best behavior about that, I wasn’t even going to say it. But, yes, so Zoe has hinted at another thing, which is I think that in an effort to be very clear and very avoid uncertainty, people in the OER community have probably been more hyper conservative about including materials under fair use and fair dealing than is probably necessary, and probably productive in terms of teaching certain subjects?

So, one of the projects we’re going to be working on over the next I think probably two or three years is a code of best practices about fair use for educational resources, with a specific focus on fair use in OER. Because while it is certainly true that fair use is dependent on the very specific context of the use, it’s also true that to the extent that included materials are kept within the work as a whole, and in that context, that analysis is not going to be materially different among similarly situated institutions.

So, for example, if someone at the University of Minnesota embeds an image in a book for the purpose of critiquing that image, there’s not a strong argument that that would be a different analysis in Massachusetts, right? Copyright law is federal law, so use is the same use. The institution is the same institution, and so I think one of the things to do as we go forward is to think about what are the low hanging fruit for those types of inclusions?

And it’s one of the rare moments, where the really strong international harmonization of copyright law actually can provide us with some benefits. Which is to the extent that those inclusions fall within the big umbrella of quotation, the need to have a quotation right in your national law is actually harmonized by treaty. So, the Bergen Convention says, “Everybody has to have a quotation right.”

And so, to the extent that those small inclusions fall within the national implementation of those quotation rights, they’re actually going to be permitted in most countries. That’s a big project, that’s not a very full explanation of that. But I just would drop that footnote, that hopefully as we go forward we can think about the third-party materials, as well.

Zoe: Thanks Meredith, not to put you on the hotspot on that one.

Meredith: It’s my favorite topic, we have 45 more minutes, we can talk about. What is everybody doing at 5:00?

Zoe: Yeah, I think there’s a lot more to unpack around that, but we’ll loop back. And Apurva was actually considering something. To come back to the idea of agreements, so I’ll hand over to her briefly.

Apurva: Thank you, I just noticed that the conversation so far has been geared mostly towards contracts or MOUs with authors on projects. And there are a lot of other collaborators on an open textbook like an editor, a peer reviewer, proofreader. And I’m just wondering what types of MOUs or contracts we would need to have with these types of volunteers on a project? Could either of you speak to that?

Meredith: I’m happy to take a first shot. So, the reason we care about authors is that they are, so the authors are the people who as a default are the copyright owners. So, for people who are like the question… You need agreement with anyone who under your national copyright law would be an author. So, people who write down the text are authors. People who make almost all illustrations, and included images are authors.

People who make the software to make simulations are authors, maybe authors of the images but definitely authors of the software. So, anybody who’s making something that would be considered a work of authorship is somebody you need an agreement with, so you know who owns the copyright and that you can put it under a CC license. Editors aren’t typically authors, the fact that they alter the text doesn’t make them an author.

They have to actually have contributed substantial original text to the project. So, for those people you might want to have a normal professional services agreement, that I’m sure everybody’s university has, just to say like this is how much time you’ll spend, this is when you’ll bill us. But you don’t need one that deals with the copyright and creative commons pieces, unless that person is an author.

Ann: Yeah, I agree with Meredith, I mean, they’re not authors. But I do think that the memorandum of understanding, it would be interesting though, especially for people that are volunteering as editors or as reviewers, it might be a respectful and part of an open practice to actually have people sign off on a memorandum of understanding, that they are contributing to an open project.

I think that that would be, I like that approach, that you’re very upfront to your whole team about what the end result is going to be. Especially for volunteers, that’s what I felt with the Rebus project that I’ve worked on. It’s people are putting in volunteer time, they’re not getting paid, they’re committed to a practice, and it’s just a nice, it would be a nice process. Sort of that idea it’s not necessary copyright-wise, but I think that it’s a nice addition to the open practice and process.

Zoe: Yeah, I absolutely agree with you, Ann. And I think that was the spirit of the student MOU that we drafted and see very clear case for that with other volunteers as well.

Apurva: And I think that might be a good place to mention if there will be any recognition for the work that they’ve been doing on the project. It might just be a small section in the book, in the back matter, whatever, but I think we can put that down in writing and say, “Hey, you’ve been involved as an editor, or as a proofreader, and we’d like to credit you for that work in the text. And we will be doing that.” That might be a good spot to do it. Yeah.

Kathy: Yeah, so if someone has agreed to be a peer reviewer and you would like to put their names in the front of the book, or somewhere, acknowledgement. Is that a case where you would suggest, yes, have them sign an MOU? As knowledge of their own, is that true? Is that what you’re saying?

Zoe: Yeah, we’ve been very informal with that, to date. But, and so we’ve just got an agreement within an email of whether they want to remain anonymous or not. But I certainly see that as being a nice way to just have that shared understanding of what will be happening. And again, when it comes to volunteer work, in particular, we’re always looking for ways to show recognition of that, in ways that people are comfortable with.

‘Cause again, going back to the student question, it’s also about the self-determination, the agency of the people who are involved.

Kathy: And that adaptable agreement could be adapted for the peer reviewers, or editors? Or would you have to come up with something simpler? Something different?

Meredith: Yeah, so I would very strongly encourage people not to use MOUs or contracts that talk about authorship for people who are not authors. So, what you don’t want to do is create this thing that suggests a person who is not an author is an author. And so, that’s a publishing agreement. So, I would do, if I were to do something with someone who was doing volunteer work, I would do a shorter MOU that says “this recognizes your volunteer commitment to this. Here’s the timetable on which you’ll do this all into your work.

We will list you as a contributor to the project in this location.” I would not include their willingness to license it, their contributions under a CC BY license, ’cause that implies that they have made an authorship contribution that you don’t want to do. And sort of can’t do. And so, I would just keep those two really separate. And so, if it’s a volunteer thing, where they’ve agreed to peer review it, and you have agreed to list them, something pretty short and informal is fine, because neither of you have a lot of skin in the game, right?

Like, worst case they don’t review it, but it’s always good I think in the peer review process to make sure that you do or do not have permission to publicly state their peer review. So, in many situations, if you get someone who is senior, and that peer review is valuable, you want to memorialize upfront, this is the project, this is the license we plan- You know? You don’t want to say that they agree to license, but you do want to say, “This is this thing. It’s this OER, OER is great, this is going to be CC BY. We really appreciate your review, we’re going to list you here.”

And that just gets upfront that they don’t go like, “Why did you put my name on that?” And you’re like, “Well, you reviewed it.” But I would keep the authorship and non-authorship pieces separate.

Zoe: Yeah, definitely agree with that. And being the people in the room without the legal expertise, that is the kind of thing that I think we would be able to put together and make something adaptable for others. So, we’re making mental notes of how we could take the student MOU that we have already and make it a little more generic for other kinds of volunteers, in these projects.

And looking at time, I think we’re probably at last call for any questions or comments. Coming down to the wire. Anything else that people want to share for now? (Silence) No immediate takers, if anyone’s typing furiously, we’ll grab them. But I’ll be the first to say thank you very much to Meredith and Ann for your time today. And for the others who’ve joined us in sharing their experiences. We hope this has been useful for you. And Karen, if you’d like to say some final words, too?

Karen: Echo Zoe’s sentiments, thank you both. And thanks everyone for joining us.

Zoe: Wonderful, thank you, everyone.

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