Oxford University Computing Services, which hosts the OpenSpires project, has for more that three decades also hosted the Oxford Text Archive. The OTA was one of the first electronic text archives in the world, and was started by Lou Burnard back in 1976. Lou was concerned that – although enthusiasm for electronic text resource creation and analysis was high – few people were thinking about how these painstakingly created resources would be preserved for the future. So Lou offered to host academic electronic resources on Oxford’s computing and storage infrastructure. In this way the archive gradually grew partly from submissions and partly from Lou asking people at conferences for the resources they mentioned in their papers. While the intervening years have seen mass digitisation projects like Project Gutenberg and Google Books spring up and eclipse the Oxford Text Archive in terms of sheer bulk of material, the OTA remains a unique window on thirty years of academic electronic text creation and peculiar markup schemes.
Within a few years of its establishment the archive became large enough to need a little more formality in its processes. To this end the University asked some external solictors to draw up a deposit agreement and an end user agreement. The University in the form of the OTA operated as a kind of ‘dating agency’, connecting licensors to licensees who wanted to use their resources. The rights under copyright needed for the end user’s intended use were granted directly by the resources creator, not sub-licensed by the University.
There were good reasons for this approach. One potential problem the archive had was that many depositing academics had not considered who owned their chosen texts when they came to digitise them. The Copyright Act 1956 (pdf) – the relevant legislation when the archive was drawing up its original agreements – permitted libraries to make and distribute copies of copyright works as long as the recipient was going to use them for ‘research and private study’. However the law had been drafted before computers and electronic texts were widespread, so it was not entirely clear how far this s0-called ‘fair dealing’ exception covered the activities of the archive. Thus the agreements left out the University as a means of minimising legal risk.
Publishers’ awareness of electronic resources grew throughout the 1980s, leading them to lobby for more clarity in copyright legislation. The Copyright, Designs and Patents Act 1988 (pdf) tightened the conditions under which libraries could make copies available for research and private study, as well as explicitly classifying digitisation as a form of copying. In a report on the current state of the archive published by the British Library in 1989, Judith Proud noted
The 1988 Copyright Act is due to become law in April 1989. It introduces a new restriction into the fair dealing section which specifically prohibits copying of copyright literary works for use by several people at the same time for the same purpose (‘copying’ is explicitly defined in the Act as including storage in electronic form). This obviously has important consequences for the Oxford Text Archive and many similar institutions. The clear definition of copying given in the Act also means that for any work which is not strictly private scholarly research, of which, as the report shows, there is an ever-increasing amount, permission must be sought from the copyright owner or his licensee before the text may be put into machine-readable form.
(from a summary of the report posted on the Humanist Mailing List 16 Mar 1989)
As a result of this legislation, and later the archives inclusion in the late lamented Arts and Humanities Data Service, the archive’s depositor agreements eventually changed to a more traditional model whereby the University (in the form of the archive) received rights and warranties from depositors and sub-licensed the material to end users.
So why is this relevant to OpenSpires and the Open Educational Resources Programme? Well the material we plan to make available is often owned by entities other than the University of Oxford. Material from external speakers forms a sizeable proportion of the audio and video podcasts we currently supply, and this is likely to continue to be the case. Even where a speaker is an Oxford employee, the University’s statutes governing intellectual property make it non-trivial to establish whether a specific work by an employee is claimed by the University or not (more on this in a later post). The current processes, formed in relation to the University’s agreement with Apple to join the iTunesU programme, involve the University taking licences from contributors in a way that allows it to sub-license the material to Apple and podcast listeners. Now that we are looking at Creative Commons licensing, we must decide whether it makes sense for us to extend this ‘man-in-the-middle’ approach for this purpose or perhaps look back to how the OTA originally arranged itself. In this model we would ask external contributors to license their material themselves under a Creative Commons licence, and we would simply provide technical means for the material to be internet-available and appropriately tagged with metadata. This approach has a lot of charm to it – it simplifies the relationships behind the publication of the material and avoids potentially unnecessary agreements. In the coming weeks we will be consulting extensively with the relevant stakeholders to see what they think of this approach, and will report back when we know more…