If educational institutions aim to license content freely and make it available as Open Educational Resources (OER), they need to consider how they want to deal with external authors regarding the usage rights. We explain three basic options for contractual arrangements.
Institutions that create and publish educational materials usually also work with external authors. This raises the question of whether and how they want to enter into contracts with third parties.
Basically, there are two possibilities: Either the institutions themselves want to issue free licences. In this case, the authors must have transferred all the necessary rights of use to them beforehand. Or the external parties place their content under a free licence themselves and the institutions then use it on the basis of this licence. In this case, certain stipulations could be agreed upon in special contracts, such as the naming of the authors.
Thus, three usage rights arrangements for Open Educational Resources (OER) could be distinguished, each with advantages and disadvantages, which we will explain in more detail below.
Option 1: Authors transfer usage rights
If the institutions themselves want to grant the open Creative Commons licences, the external authors must grant them extensive rights of use. This is typically done in such a way that the authors contractually transfer to them the exclusive rights of use, unlimited in time and space, for all types of use.
It would also be sufficient if they only granted these rights of use irrevocably as simple, transferable rights, provided that this also applies otherwise without restriction for all types of use.
However, such far-reaching transfers of rights of use are often met with resistance. This is because authors or rights holders must leave the further handling of the work and thus also the licensing to the discretion of the institution.
This is why buy-out contracts, which also involve such far-reaching transfers of rights, are increasingly unpopular. Such reservations on the part of authors and rights holders accordingly prove to be an obstacle for institutions if they want to license their teaching media freely themselves.
For those who nevertheless want to proceed in this way, it is advisable to include the reason for the far-reaching transfer of rights in the text of the contract. In this case, this would mean allowing the institution to freely license the works used by the authors.
At the same time, it would make sense to specify whether both the author and the institution should be named in the licence notice or only one of the parties, and in what way.
Transferring far-reaching rights to the institution so that it can issue a CC licence itself also has advantages. Creative Commons licences are evolving, and the current version is already the fourth version. If an educational institution has the necessary rights of use, it can also license according to a new licence version without having to ask the author.
In addition, constellations are conceivable in which the institution wants to use material but does not want to comply with certain conditions of the CC licence used: for example, not naming the authors involved, which they (the authors) must explicitly agree to.
Option 2: Authors issue CC licences themselves
In the second variant, i.e. when authors license their works freely themselves with Creative Commons, the advantages and disadvantages are exactly reversed. The institution is limited to using the material exclusively according to the terms of the CC licence chosen. An “update” of the licensing – should there be a new version of the CC licences – is only possible by the author himself.
The biggest advantage of this approach is that the authors see themselves as subjects and agents in the licensing process. They make the material available as OER for free re-use. With licensing by the institution, on the other hand, they are obliged to transfer their rights – which can lead to them seeing themselves as objects who have to accept the contractual conditions presented.
Licensing by the authors can also be stipulated in a contract. If the material has already been created, it is advisable to make it clear (declaratory note) that it is already CC-licensed and how the author’s name is to be mentioned.
For example, by using a formulation such as “XX has licensed the above materials under CC BY-SA 4.0. Attribution is provided in the form First name Last name.” This makes it clear that the materials are already licensed under CC BY-SA 4.0 – and not just that there is an obligation to license them in this way, because then the authors could refuse to comply with this obligation.
If, on the other hand, a contractual agreement between an institution and a third party is about material that is yet to be created, licensing is also only possible in the future.
In this case, it is advisable to firstly stipulate that CC licensing is mandatory. Secondly, a contractual clause should explicitly authorise the educational institution to publish the material under the corresponding licence.
A formulation for this would be: “XX will license the materials created under this agreement in accordance with CC BY SA 4.0, with attribution in the form First name Last name. The institution YY is authorised to publish th
Option 3: Authors issue CC licences themselves plus a special agreement with the institution.
Within the framework of such contractual stipulations for licensing by authors, it is also conceivable to add certain special agreements. For example, to allow the institution to make uses that are not permitted under the terms of the CC licence.
For example, the authors could contractually transfer certain rights of use to the educational institution—irrespective of the CC licence—and waive the attribution, for example.
Educational institutions that work with external authors for free teaching materials should make clear, preferably contractually agreed arrangements. It is important to decide whether the authors should license their works freely themselves or whether they should transfer rights of use to the institution that allows CC licensing.
This text is licensed under a CC BY 4.0 licence. The name of the author should be attributed as follows in case of further use: PAUL KLIMPEL (English translation by Phuong Nguyen, Jöran Muuß-Merholz, and Nele Hirsch with a little help from DeepL). Original German version is available under a CC BY 4.0 licence via OERinfo.