Open Education Practices: A User Guide for Organisations/Intellectual Property Policy
Here we will look at the pioneering work of Otago Polytechnic, who in 2007 established a progressive policy around intellectual property that prepared it for the open educational practices that would follow. In 2010, staff at the University of Canberra took Otago's initial work and prepared a proposal for that university's review of IP. This chapter tells these stories, and outlines the key points of these policies as being better able to carefully manage IP, to be more realistic in claims of IP ownership, and to recognise autonomy on the idea of intellectual property for indigenous cultures.
Otago Polytechnic's IP Policy
In 2007 Otago Polytechnic instituted an intellectual property policy that vesting ownership of intellectual property (IP) in the creators, while promoting the use of free copyrights and open development through the preferred use of the NZ Creative Commons Attribution copyright license. The CC By NZ license allows others to copy, distribute, transmit and adapt the work as long as credit is given to the original author. Because this license won’t suit all circumstances, there’s provision in the Polytechnic's IP Policy for negotiation exceptions to the CC By NZ default.
To ensure the values of New Zealand’s Maori are protected, and to accommodate a different concept of ownership, a Maori IP policy was developed in consultation with the local Maori Ngai Tahu law office. Broadly speaking, the Polytechnic’s role in this area is one of guardianship of Maori IP and knowledge. The concept of guardianship has also been extended to students’ IP.
Deputy Chief Executive of Otago Polytechnic
Deputy Chief Executive, Dr Robin Day, tells the story of the evolution of the policy.
- For a long time the Polytechnic had no formal policy on IP and, when the Executive saw the need to fill this gap, they initially sought legal expertise to help draw up a framework to put out for consultation. According to this initial and very different framework, Otago Polytechnic owned copyright of material developed at the institution. The reaction was vociferous with some staff saying, "You’re not owning my thinking! If that’s the case, I’ll do what’s required for my job and do my really creative thinking at home!" Some students also protested, saying they would do what was required to get a qualification, but would keep their best work to themselves so they would be able to set up their own companies to develop their ideas after they finished study. From an educational perspective it seemed that the policy of taking ownership of people’s intellectual property could constrain learning, knowledge development and good will.
- Over two years of debate, much of the input came from those with a high stake in IP – the Art, Design and IT Schools who are the main creators in the institution. Phil Ker (the Chief Executive) and myself engaged with those who were interested, going to meetings and involving staff with the drafting and redrafting of the policy. Contributions came from right across the spectrum, from those wanting full copyright through to those who wanted to share material, to those who argued for freedom and more accessible learning, and a more open society. The Executive of Otago Polytechnic comprises people whose core experience and qualifications are in education. The new IP Policy reflects their "preference for the open sharing of information, knowledge and resources" and is in harmony with the Polytechnic’s philosophy of looking at learning from the learner's perspective and initiatives such as recognition of prior learning.
- Ensuring everybody is aware of the policy and that other policies, strategies and action plans are all aligned, is an enormous job and a long process. Despite attempts to inform and involve everyone in the process, for some people copyright and IP only surfaces when it impinges on them. In these cases, the negotiation process is still available on a case-by-case basis. Research and ethical concerns, for example, often need careful treatment. Enquirers are directed to the policy before options are discussed and, where appropriate, contracts are set up to specify conditions of ownership and copyright at the outset of a project.
- Many staff express the fear that people will no longer enroll in courses if their teaching material is freely available, but others point out that so much is already freely available and that most students want a qualification which requires assessment not content. Open Educational Resources are a way of attracting people to the Polytechnic, because they can see the sort of material we use, and they can orientate themselves to the courses before they start. The Internet provides a forum where we can build the reputation of our institution and it's engagement with the community and with businesses. Rather than dissuading people from coming, our resources can provide subtle marketing and understanding, where people can see our work and decide if they want to come to us.
The same is true about research, because there is a lot of emphasis in New Zealand on research in tertiary education institutions, the IP Policy held by Otago Polytechnic could potentially impact on publication. Robin believed that publishing papers was like working with external clients, and said: "We have to walk in different worlds. If it’s our stuff, we’ve got the Creative Commons Attribution license over it, that’s our default. With external publishers, if necessary we’ll accept their copyright restrictions, although if we’re able to negotiate, we will." He pointed out that there are now databases and journals moving into the Creative Commons licensing regime: "The drivers must be changing as the open journals become more credible. Others probably realise they will end up losing business if they don’t adopt the open business model as well."
The IP policy enables Polytechnic staff to publish and disseminate research findings freely without compromising their intellectual property rights. For example, Leigh Blackall, from The Educational Development Centre publishes on a variety of open platforms, such as WikiBooks, blogs and Youtube. Bronwyn Hegarty, an educational developer who works with Leigh, has collaborated on several New Zealand government funded projects where open licensing was important so others in the tertiary sector could access and reuse the outputs.
NZ Government directions
Robin believes the policy fits with NZ Government’s desire to encourage technology transfer between the marketplace and the tertiary sector. He stated: "This IP policy removes barriers to that. Our graduates take their IP with them into the marketplace. If they want to develop it, we’re more than happy to work with them, and they often come back and work with us. Our industrial prototyping design facility now has about 60 businesses coming in and out of it. They know their IP is protected. They want to use our equipment, our staff, and technical skills and blend it with what they’re doing. They’re paying, so that’s a benefit for us, but the huge benefit is our reputation as the key leader in this development in this region." The intellectual property conditions at Otago Polytechnic are also attracting some people from universities to engage in research with Otago Polytechnic which engages in research and scholarly activity, and has Performance Based Research Funding. Robin explained, "Some people are saying, I like this working environment. It’s less structured. It’s more open. We’ve had people who've said they like working here because the research conditions are actually better. That’s cool."
Partnering Wiki Media Foundation projects
The Polytechnic isn't leaping willy-nilly into whatever web platform is available either. There is evaluation and discussion about suitability and reliability. Wikibooks is one of the platforms recommended because it’s very strong and it’s building and growing. While some people still have concerns, many like the fact that it is an initiative of the Wikimedia Foundation, that it’s a not-for-profit organization, and it has higher ideals.
University of Canberra Proposal
In 2010, Staff in the Faculty of Health at the University of Canberra took advantage of their university's IP Policy review period, and developed an IP policy proposal that built on the initial work done at Otago Polytechnic. This later developed into a more generic policy and procedures for Australian research and education
Key points included:
- Staff and student retain ownership of their IP
- Creative Commons Attribution as the default license of the University with an opt out process when a restriction is needed
- Protection of Indigenous IP and support of an autonomous position
Proponents of the proposed policy were invited to speak at the Annual General Meeting of Knowledge Commercialisation Australasia 2010, and test the points in their proposal within that professional community of practice. They felt that they had confirmed value in their proposal, especially that defaulting to Creative Commons Attribution with an opt-out process would improve the management of IP over all, and better target resources to those that needed IP management services; that recognising and valuing individual ownership of IP was a more realistic approach and one that would foster good will within the University; and that recognition of Indigenous autonomy around IP was a significant step of reconciliation with Indigenous cultures everywhere.
The proposal did not receive recognition or a formal response from the University of Canberra. Others did respond however, including the National Tertiary Education Union calling the proposed policy a possible benchmark in IP management in the Australian university sector. 
How Creative Commons and open access improves IP management
Setting an organisation's copyright procedures to Creative Commons Attribution, promoting open academic practices, and retaining individual ownership, drives better management of Intellectual Property in that organisation. (Blackall, 2010)
A CC By and open access default requires those who wish to restrict their copyright and access, to make that known to their IP management office early in their projects timeline. This results in an early intervention and best possible management of IP at the outset, helping to ensure copyright diligence from the outset. This intervention would lead to more efficient and targeted services from the IP management office, such as education, commercialisation, or a variety of restriction management and protections.
Setting CC By and open access as a default position ensures that academic work that can go open, does. The minority of work that requires restriction gets the best possible IP management early.
Many IP managers in educational organisations express frustrations at being brought into a project too late, leading to complex and time consuming work, unraveling years of messy IP management before they can get the project into a position to capitalise on the reasons for restricting and protecting the IP in the first place. Those organisations make a general claim of ownership over all IP being generated in the organisation - believing it to be the best way to manage and contain IP, but the messy reality exposes such attempts to catch all work in restricted and protected status as unrealistic and counter productive.
Setting policy such as this ignores the messy realities of education and research. New and visiting academics will bring prior work and new professional networks without necessarily signing over IP, or clarifying ownership. Most will likely ignore IP complications day to day, preferring to get on with the primary work instead. Importantly, draconian policy risks driving poor practices away from better management, and can too easily generate bad will with those involved, resulting in disputes when academics leaving believe it their right to take their work with them. An organisation claiming over-all ownership fixes none of these realities.
Retaining individual ownership, on the other hand, promotes good will and a fairer relationship between academics and their host university, and can improve motivation and a sense of ownership and responsibility on projects. Setting CC By and open access as the default position helps the university to capitalise on the majority of work being generated. A process for opting out of the CC By/open access default initiates early interventions with the IP Office, and helps that Office to efficiently focus on that minority of work, and to offer better services for IP education and management.
- Otago Polytechnic's Intellectual Property Policy
- UC authors. Proposed Policy for Intellectual Property at the University of Canberra September 2010
- Blackall, L and Neill, J. 2010. education and research at the University of Canberra. Wikiversity. Retrieved 2012-11-22
- Blackall, L. 2010. Why KCA Need to Change Their Name. leighblackall.com. Retrieved 2012-11-22
- Kwok, J. NTEU Response to UC Proposed IP Policy. 27 September 2010
- Blackall, L. 2010 Presentation to auPSI. leighblackall.com. Retrieved 2010