- A. Universities, schools and other educational institutions
- B. Licensing for teaching and learning materials
- C. Incorporated works by third parties
- D. Licence selection
- E. Liability risks
- F. Information services
Literature: Federal Ministry of Education and Research, OER Strategy – Free Educational Resources for the Development of Digital Education, July 2022, https://perma.cc/S3C2-V52N; Sebastian Horlacher, Creative Commons Licences 4.0 – A (copyright) legal analysis based on open educational resources in university teaching; OERinfo – What is OER, https://perma.cc/3JGT-F9CL.
1 While science describes the field of systematic and methodical knowledge acquisition, education in this context describes the entire field of teaching and learning.
2 While scientific results are published in science (e.g. as textual publications), knowledge relevant to education is published in learning and teaching materials. If teaching and learning materials are made available under a free licence, they are referred to as open educational resources (OER).
3 Open educational resources offer particular potential for collaboration and cooperation, skills development and the development of new pedagogical practices to support the development of learners and teachers in all areas of education in a digital living and working environment in the 21st century.
4 Only the free licensing of teaching and learning materials makes them OER and enables others to use them for teaching and learning, modify them and share them (in a legally compliant manner) – even across borders. The latter is guaranteed by the globally established Creative Commons licences.
5 The term OER is often associated not only with legal openness, but also with technical openness – however, this aspect cannot be discussed further here.
6 On the basis of the legal permissions in Sections 60a ff. of the German Copyright Act (UrhG) alone, reuse is not conceivable in the sense of the objectives described. This is because these provisions do not allow for sufficiently extensive or legally secure use.
7 Due to their global applicability, machine readability and cross-border usability, Creative Commons licences are also particularly suitable for OER. They have therefore established themselves as the quasi-standard for OER in German-speaking countries.
8 Internationally, the concept of OER is promoted in particular by UNESCO, cf. Einl Rn. 15 f. UNESCO defines:
"Open Educational Resources (OER) are educational materials of any kind and in any medium that are published under an open licence. Such an open licence allows free access and free use, editing and redistribution by others with no or minimal restrictions. Open Educational Resources can include individual materials as well as complete courses or books. Any medium can be used. Curricula, course materials, textbooks, streaming videos, multimedia applications, podcasts – all these resources are OER if they are published under an open licence."
A. Universities, schools and other educational institutions
9 OER play a role in schools, universities and other educational institutions and can be found in a wide variety of formats, from PowerPoint presentations and educational videos to lecture notes and traditional textbooks. These materials can be licensed under a Creative Commons licence, although there are significant differences between universities, schools and other educational institutions.
10 In schools in Germany, education and teaching are based on quite detailed curricula.
#11# In contrast, teaching at universities – still based on Humboldt's educational ideal – is based on research and is intended to convey research results. This means that teaching materials at universities are often highly context-specific and do not convey established knowledge as in schools. Teaching materials that are developed to accompany research and are used to directly convey research results cannot easily be reused in other contexts. They are often not generally transferable. Furthermore, there is much greater freedom in the design of these teaching and learning materials than in schools, where it is regularly limited to adapting existing teaching materials for the individual design of the respective lesson. In schools, existing and known knowledge is merely conveyed and not – as in higher education – methodically supported in its generation.
B. Licensing for teaching and learning materials
12 Educational materials can be created completely independently of educational institutions or in any kind of context. If materials are created in connection with educational institutions, the greater the freedom in the design of teaching materials and the less they are subject to instructions, the more likely it is that the rights to the materials will remain with the teachers who create them (see VorCCPL Rn. 43 ff. and B. Wissenschaft Rn. 29 ff. on employee copyright law); they are thus also in a position to license the materials and thus be CC licensors.
I. Educational materials outside educational institutions
13 Free teaching and learning materials – whether for schools or universities – can be created independently of the respective educational institution as separate projects, including publishing projects. This can apply to school or university textbooks as well as teaching materials, worksheets, etc. In this case, the licensing rules are no different from those for other publication projects not related to education. The advantage of such freely licensed content is – as explained – its free usability.
II. Licensors at universities
14 The same considerations apply to the question of who can license educational materials at universities as the owner of the rights as to scientific publications at universities (see B. Science, margin note 29 ff.).
15 The prevailing doctrine assumes that the freedom of science under Article 5(3) of the German Basic Law also gives rise to the right to decide on the form of publication of research results. This argument applies not only to university professors (professorial privilege), but also to other university employees, regardless of their employment status. As far as scientific publications are concerned, the principles of employee copyright law and the associated transfer of rights of use to the employer would not apply.
16 Only in the case of scientific employees who are not self-employed or who act under instruction does Section 43 of the Copyright Act apply, and the state as employer (or the university as employing body) acquires rights of use to such works that are created within the scope of the employment relationship. In this case, the university itself can act as licensor. Universities could also directly commission employees, at least in the area of basic education, to create learning materials that are to be freely licensed.
17 In practice, however, universities usually do not act as licensors; instead, licensing is carried out by the research assistants and professors themselves. In the area of research-based teaching, this is also legally required, as explained above. Where licensing by the university would be possible – in the case of clearly defined learning materials on basic knowledge created on instruction – it does not take place because staff are often already fully occupied with other tasks and therefore the creation of teaching materials within the framework of employment relationships usually does not take place.
III. Licensors at schools
18 Teachers at schools can also produce learning materials, adapted to a specific class, course or situation, and place these materials under a free licence to enable others to use them.
19 In schools, this can build on a long tradition of collegial cooperation. Even before digitalisation, it was common for teachers to make their handouts or worksheets available to other teachers so that they could also use the materials – after making any necessary changes – for their lessons.
20 In the digital world of online availability, this is no longer limited to the manageable area of the staff room. In order to enable others to use the materials as well, Creative Commons licensing is used.
21 In practice, the question often arises as to who is actually allowed to license educational materials. The reason for this is that, according to the principles of employee copyright law (VorCCPL 43 ff.), the rights of use for materials created by teachers at schools or by employees of other educational institutions may, under certain circumstances, have been transferred to the employer, meaning that they are no longer free to dispose of them themselves.
22 First of all, a distinction must be made:
1. Teachers as licensors
23 When teachers or employees of educational institutions create educational materials outside of their working hours, they are free to license them as they see fit. This means they can assign CC licences at their discretion. This will often be the case because the time teachers spend on teaching and lesson preparation and follow-up often leaves no room for the creation of general learning materials.
2. Employers (schools or the state) as licensors
24 However, the situation is different if the production of such copyright-protected materials is part of the teacher's or employee's duties as agreed in their employment contract. This is particularly the case if a teacher is expressly exempted from other duties in order to create educational materials.
3. Difficulties in drawing boundaries
25 However, there are also borderline cases where it is not clear whether the creation of materials is still part of the duties specified in the employment contract. This is particularly true when materials are created as part of school-related activities, for example in voluntary working groups, or when the materials are not created for or in class, but merely on the occasion of class. To put it in concrete terms: a teacher teaches literature, and the interesting discussions in class about Max Frisch's "Homo Faber" inspire him to produce teaching materials on this topic, even though he does not (or no longer) need them for the specific lesson unit.
26 Added to this are uncertainties about the extent to which rights of use are transferred. Section 43 of the German Copyright Act (UrhG) refers to the specific features of the respective employment or service relationship, which makes it difficult to make general statements on this subject. In addition, service contracts for teachers only rarely expressly regulate rights of use .
27 If the rights of use have already been transferred – at least in part – to the employer, the teacher is often no longer able to license independently. This is because anyone who no longer has rights of use because they have been transferred exclusively to the contractual partner – in this case, the employer – can no longer grant these rights to others.
4. Retransfer, dealing with uncertainties
28 If rights of use have been transferred to the employer, they should be retransferred so that the teacher can grant licences. This procedure entails further uncertainties in the education sector. The question arises as to who is responsible for this retransfer of rights. The employer of teachers is often not the school or educational institution, but the respective federal state or a sponsoring institution (e.g. a church school foundation). Given the diversity of the different constellations that exist here, it is not possible to make any general statements about whether schools or educational institutions are authorised to carry out the transfer of usage rights necessary for free licensing, or whether this must be done by the state or the school authority. However, this uncertainty should not be at the expense of the respective teacher who wishes to freely license. Rather, the respective school should clarify this with the body that employs the teacher.
29 In the course of a school-wide or other overarching regulation for free licensing of educational materials, it is also expedient to regulate which names should be listed in the licence information as sources or co-authors/creators. There are often different ideas about whether the name of the educational institution should be mentioned alongside the name of the teacher – a clear definition is useful here.
30 Teachers should obtain confirmation from the school regarding the following:
The school/educational institution welcomes the fact that Mr/Ms (name) publishes educational materials as Open Educational Resources under a CC BY 4.0 licence (the exact licence text can be found at https://creativecommons.org/licenses/by/4.0/legalcode.de) or CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0/legalcode.de) or CC0 (https://creativecommons.org/publicdomain/zero/1.0/deed.de). The attribution shall be made as follows: Name of the educational institution/name of the teacher. To the extent necessary, the rights of use to the materials created by the teacher, which have been transferred to the employer on the basis of the teacher's employment contract, shall be transferred back to the teacher. The school/educational institution shall carry out this transfer in consultation with and with the authorisation of the state/school authority as the employer.
If such a certificate is available, there is no longer any need for precise clarification as to whether and which rights have been transferred to the employer and when. 5.
5. Binding OER policy
31 It is also conceivable that the school – with the consent of the state or school authority – could agree on a common licensing policy with all teachers. In this case, all teachers and other employees would have to sign an agreement with the school committing themselves to placing materials created in the course of their educational work under the appropriate licence. Here, too, the specific form of attribution should be agreed upon.
32 In this agreement, the parties involved should mutually authorise each other to independently attach a corresponding licence notice to materials. This is practical, as it often depends on chance whether the content is published by the teacher or by the school .
33 Example of an agreement between a school and a teacher:
Materials created at the school (name)/as part of the project (name) are placed under a CC BY 4.0 licence. This means that the materials can be used by anyone, provided they include a licence notice and the name of the copyright holder. The details of the licence are available in the appendix and online at http://creativecommons.org/licenses/by/4.0/de/legalcode. The licence notice should be accompanied by the following attribution:
CC BY 4.0, name of the school, or
CC BY 4.0, name of the school – first name of the teacher, or
CC BY 4.0, name of the school – first name and surname of the teacher
The licence notice must also contain a reference or link to the full licence text, the URL of the online publication and, if applicable, a title of the work, if one has been specified .
The school and the teachers mutually authorise each other to grant the licence and transfer to each other the necessary comprehensive, temporally and spatially unrestricted rights of use.
6. General possibility of creating OER
34 Notwithstanding the difficulties in defining boundaries described above, it must be emphasised that both schools and teachers can create OER if they wish to do so. Schools have the option of instructing teachers and also exempting them from creating learning materials, which they can then license freely and publish as OER.
35 Teachers also have the option of granting Creative Commons licences and thus creating OER – namely wherever they are not clearly creating works on the instructions of the school.
36 It is in the interest of both schools and teachers to clearly define whether teaching materials are created on behalf of the school (and the teacher is exempted from other duties for this purpose) or not. With regard to the motivation to make freely licensed teaching and learning materials available as OER, it has been shown time and again that, in addition to the legal challenge, a lack of capacity in particular represents a major hurdle .
C. Incorporated works by third parties
37 Educational materials often do not stand alone, but refer to other content and therefore regularly integrate the works of third parties. This creates a situation that is not always easy to understand, especially for laypeople , in which licensing applies to one's own works, but not to the included works of third parties, the use of which is nevertheless permitted by law. To make matters more complicated, some legal permissions only allow use in certain constellations. For example, Section 60a (1) No. 1 UrhG allows the use of copyright-protected material only for teachers and participants in the respective course. If an author includes an illustration in educational materials on the basis of this standard, for example, free use outside of other contexts is not permitted. This precludes making it available as an OER. Quantitative restrictions and the privilege of exclusively non-commercial purposes can also be an obstacle to the provision of OER in individual cases.
38 It is important that third-party content incorporated into the licence is clearly marked so that it is clear what the licence covers and what it does not cover.
D. Licence selection
39 Right from the start of digitisation, it became clear that it makes sense to issue licences for the education sector that allow for more extensive use of materials than would have been permitted under copyright law without a licence. An example of the effort to provide tools for this in Germany is the licence for the non-commercial use of content in schools and universities (MuSofT).
40 This is because CC licences have now become standard practice in the field of education, just as they have in science. The CC BY and CC BY-SA licence variants and the CC0 release declaration are considered compatible with the OER concept.
41 This does not apply to the NC module. In the education sector in particular, there are numerous commercial providers in addition to public ones. The The distinction is not only difficult, but also leads to undesirable results. Above all, there is a risk that, due to such difficulties in distinguishing between the two, the use of such materials will be avoided even in cases where it would be legally permissible (for NC in the field of education, see section 1.i Rn. 92 ff.).
42 The ND module is also considered incompatible with OER, because the ease with which educational materials can be adapted to the specific learning context is seen as an important advantage of electronic educational materials and this possibility is one of the core ideas of OER.
E. Liability risks
43 When teachers create OER for their educational institution, they do not face a particularly high personal liability risk. It is possible that they may commit copyright infringements, especially when incorporating third-party content by exceeding their existing legal powers (see above) . However, any liability claim is then usually directed against the educational institution (e.g. university) as the employing body (official liability claim pursuant to Sections 97 ff. UrhG in conjunction with Section 839 BGB in conjunction with Article 34 GG). Only in the case of intentional or grossly negligent infringement of rights does the educational institution (e.g. university) have a right of recourse against the teacher as licensor and infringer, which cannot be excluded or limited in advance in terms of amount.
44 The situation is different, however, for materials that are created independently of the respective educational institution. If copyright infringements occur in this case, the teacher is directly liable. In order to minimise liability risks, it is therefore advisable to produce OER within an institutional framework.
F. Information services
45 Numerous publicly funded projects at state and federal level have resulted in a network of information services on OER in the various areas of education:
46 First and foremost is the central information platform OER.info, which – supported by the German Institute for Educational Research and funded by the Federal Ministry of Education and Research – provides numerous materials and services related to OER: https://open-educational-resources.de/
47 In addition, there are specific information services for the various areas of education. These are for
OER in schools, the FWU Media Institute of the Länder,
OER in higher education, the Learning Lab at the University of Duisburg-Essen,
OER in vocational training: the Federal Institute for Vocational Education and Training (BIBB) and for
OER in continuing education, the German Institute for Adult Education DIE.
Creative Commons License
Open Access Kommentar, Commentary on C. Education (OER) is licensed under a Creative Commons Attribution 4.0 International License.
