Getting copyright clearance from publishers for OER materials is not just a UK issue, so I contacted colleagues at the Science Education Resource Center (http://serc.carleton.edu) for some advice from a USA perspective. SERC hosts a wealth of online teaching resources particularly for the Geosciences. Here’s what their technical director, Sean Fox, had to say (NB these notes are taken, with permisson, verbatim from a personal email):
“We run into this all the time and there is no easy answer. Although the copyright clearance center and the like make it easier than it used to be buy limited right to stuff from publishers, that doesn’t solve the problem when you want to create things that are freely redistributable.
Here’s the strategies I know that people are using:
1. Make partnerships directly with the publishers that allow you to use the content in the way you want. This is obviously very time-consuming since there are lots of people to negotiate with.
Here’s an example of that where NSDL has negotiated with a big group of publishers for a specific use of select materials: http://nsdl.org/pd/?pager=classic_articles
Doing this on your own is likely impractical but there may be existing arrangements you can take advantage of. We have an arrangement like this with nagt.org such that we can publish any of their articles online in association with teaching activities. Of course at this point they are moving to open-access anyway so that’s less of an issue.
The obvious lever point in working with publishers here is that if they don’t provide open access (to some of their stuff) you can choose to ignore their material entirely (and it becomes less important).
2. Don’t provide the original materials; just provide the reference to the original materials. We do this when we have activities referring to articles. Just provide the reference and let the faculty member get access (under the assumption that their institution may already be paying for access). Thing can be used in conjunction with:
3. Find/Make a substitute. Rare is the material that is really unique in the universe. Often you can find a substitute that’s okay (if not ideal). Alternatively since ideas and data aren’t copyright-able –just particular expressions– you’re usually free to make own version of that important figure/graph/diagram from scratch. This takes work, but solves the problem. Here’s an example where the original figure (a gel) was important, we couldn’t get permission from the journal, so we made a surrogate (simplified) figure so faculty could see what we were getting at. They can decide to track down the journal and get the original if they really cared:
http://serc.carleton.edu/sp/library/coached_problems/examples/example1.html
There are some OER-involved campus that have a whole pipeline of staff and student workers who are engaged in a “identify rights compromised items/find substitute” process for all faculty material put online. It’s a big piece of work. There was a group who gave a talk about this at the OCWC 2009 meeting, but unfortunately I can’t track down the title. It seems the program online isn’t up to date. I think it was a presentation late in day (on the last day?) [HK: Info about the conference can be found at http://www.ocwconsortium.org/conferences/index.php/ocwcglobal/monterrey2009]
No easy answers. Let me know if you come up with anything else clever.
Sean
sfox@carleton.edu | Technical Director | SERC | Carleton College”