Copyright Basics

U.S. copyright law protects an author’s rights over their original creative works (e.g., research articles, books and manuscripts, artwork, video and audio recordings, musical compositions, architectural designs, video games, and unpublished creative works).^[1] As soon as something is “fixed in a tangible medium of expression,” it is automatically protected by copyright. A resource is considered fixed when:

“its embodiment …by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”^[2]

In other words, an idea for a book you want to write is not protected by copyright, but the first draft of your manuscript is. Copyright protection ensures that the creator of a work has complete control over how their work is reproduced, distributed, performed, displayed, and adapted.^[3] You do not need to register your resource with the U.S. Copyright Office for this to come into effect; it is automatic.

Copyright law is extremely nuanced and complex. However, what you need to know for this course is that copyright grants the creator or owner of copyright control over the use of a work. The exclusive rights copyright grants means that a copyrighted work cannot be freely used by others without the owner's permission. This is where we run into trouble when we want to use a work for a course. We either need to ask for permission to use and copy the work freely or we need to pay to use the work. As we have learned, paying for a work can cost a lot of money, and this expense is passed on to our students.

Licensing

The copyright status of a work determines what you can and cannot do with it. As you begin to explore OER for use in your classroom, it is important that you understand your rights over the works you create and what it means to give those rights away.

Most copyrighted works are under full, “all rights reserved” copyright. This means that they cannot be reused in any way without permission from the work’s rightsholder (usually the creator). One way you can get permission to use someone else’s work is through a license, a statement or contract that allows you to perform, display, reproduce, or adapt a copyrighted work in the circumstances specified within the license. For example, the copyright holder for a popular book might sign a license to provide a movie studio with one-time rights to use their characters in a film.

Public Domain

Works in the public domain are not subject to copyright. They can be freely used to create new materials. Works enter the public domain when copyright expires, copyright is not formally maintained, the work was never entitled to protection, or the creator dedicates their work to the public domain before copyright expiration.

public domain.png

The Public Domain Mark is a label used to mark works known to be free of all copyright restrictions. Unlike CC0, the Public Domain Mark has no legal effect when applied to a work. It serves only as a label to inform the public about the public domain status of a work and is often used by museums, libraries and archives working with very old works.

Creative Commons has a legal tool called CC0 (“CC Zero”) Public Domain Dedication that helps authors put their works into the worldwide public domain to the greatest extent possible.

To learn more, read, How do resources enter the Public Domain?

Open Licenses

An open license is a vital component of an open educational resource. Because of this, it is important that you understand how open licenses work within copyright law. This course will provide an overview of U.S. copyright law, fair use, and licensing to help you navigate this topic.

All OER are made available under some type of open license, a set of authorized permissions from the rightsholder of a work for any and all users. The most popular of these licenses are Creative Commons (CC) licenses, customizable copyright licenses that allow others to reuse, adapt, and re-publish content with few or no restrictions. CC licenses allow creators to explain in plain language how their works can be used by others.

However, there are other open licenses that can be applied to educational materials. If you’re interested in learning more about open licenses, feel free to explore the Free Software Foundation’s information on "copyleft licenses," some of the first licenses used for open content.^[4]

Fair Use

Certain exceptions and limitations to copyright exist, including "fair use." Fair use in the United States considers the following:

the purpose and character of use
the nature of the copyrighted work
the amount and substantiality of portion taken
the effect of use upon potential market

Whether or not something falls under fair use is decided by the courts on a case-by-case basis. There are no strict rules for fair use, only loose guidelines. Fair use tends to be interpreted broadly when using something for an educational purpose. However, you really need to understand how fair use works to determine if your use applies.

To learn more, read, What are the conditions of Fair Use?

If an OER is available under a copyright license that restricts certain (re)uses, you can make a fair use assessment for reproducing or adapting that work. However, having explicit permission is preferable. We do not recommend using fully copyrighted works in OER projects without written permission from the work’s rightsholder.

Here are a few more fair-use resources:

Harper College Copyright Tutorial has an excellent step-by-step guide to determining if you can use something in class.
Copyright and Fair Use: The Stanford University Libraries
Fair Use Checklist Columbia University Libraries
Code of Best Practices in Fair Use for Open Educational Resources. A Guide for Authors, Adapters & Adopters of Openly Licensed Teaching and Learning Materials

Creative Commons

Want to avoid the hassle of figuring out copyright, fair use, and other legal concerns? Use a work that is openly licensed! We will learn more about Creative Commons in the next section. Creative Commons licenses allow creators to share their works within specified limits while retaining the copyright.

Why use Open Licenses?

Open licenses are an integral part of what makes an educational resource an OER. The adaptability and reusability of OER make it so that they are not just free to access, but also free for instructors who want to alter the materials for use in their course. For example, in the figure below an openly licensed image has been traced to make it more readable for users.

Two images of a flowering plant with pieces labeled: the first is fuzzy and out of focused, with the words "CC 0 Universal Public Domain License, Kelvinsong" beneath it. The second is a copy of the first with cleaner lines and clearer labels and the words "CC 0 Universal Public Domain License, Kelvinsong (adapted for readability) beneath. — “Adaptation in action” by Abbey Elder, licensed CC 0 1.0, was adapted from “Copyrighted source to tracing” by Kelvinsong, also licensed CC 0 1.0. In this example, it shows how an already open work can be legally recreated via tracing for readability.

One of the tenets of OER laid out early on in the open education movement was the idea of the 5 Rs (originally the 4 Rs) introduced by David Wiley.^[5] These five attributes lay out what it means for something to be truly “open,” as the term is used in open education. The 5 Rs include:

Retain = the right to make, own, and control copies of the content.
Reuse = the right to use the content in a wide range of ways
Revise = the right to adapt, adjust, modify, or alter the content itself
Remix = the right to combine the original or revised content with other open content to create something new
Redistribute = the right to share copies of the original content, your revisions, or your remixes with others

While the “redistribute” and “revise” rights are the most commonly exercised rights in open education, each of the five plays an important role in the utility of an open educational resource. For example, without the right to “remix” materials, an instructor who teaches an interdisciplinary course would not be able to combine two disparate OER into a new resource that more closely fits their needs.

Summary Infographic

6 things to know about copyright.pdf

Text version of the infographic.

Notes

Copyright Law of the United States, 17 USC §102. https://www.copyright.gov/title17/92chap1.html#102
Copyright Law of the United States, 17 USC §101. https://www.copyright.gov/title17/92chap1.html#101
Copyright Law of the United States, 17 USC §106. https://www.copyright.gov/title17/92chap1.html#106
Free Software Foundation. "What is Copyleft?." Accessed June 29, 2019. https://www.gnu.org/copyleft/copyleft.html
Wiley, David. "Defining the 'Open' in Open Content and Open Educational Resources." Open Content blog, 2014. http://opencontent.org/definition/

Attribution

This page contains information adapted from the Creative Commons Certificate, licensed Creative Commons Attribution 4.0 International license; "Licensing" and "Public Domain" were adapted in part from UH OER Training by Billy Meinke, licensed CC BY 4.0; and The OER Starter Kit by Abbey K. Elder, licensed under a Creative Commons Attribution 4.0 International License.

Video: “What is an open license and how does it work?” by The Council of Chief State School Officers is licensed CC BY 4.0.