Module 4: Introduction to Open Licensing

Did you realize these course modules are an OER? Do you want to reuse the content, modify it for your students or colleagues? Guess what … you can, with attribution of course!

You’ll learn more about reusing open content and explicit open license permissions, such as attribution, in Module 7. However, first, it is important to understand what makes it possible for you to reuse, modify, and reshare this work. These activities are legal because when it was created the author released it with an open license. When discussing open licensing it is necessary to review definitions of important terms and legal requirements of laws and principles applied to a creator’s work and how it can be used or reused. In addition to introducing and defining open licenses, this module will review and define copyright, fair use, and public domain.

What is Copyright?

Copyright is a form of legal protection automatically provided to the authors of “original works of authorship,” including literary, dramatic, musical, and artistic works. Copyright in the U.S. is automatically assigned to creators of work, with no registration necessary.

It can be unlawful to use copyrighted works of others without their permission, and no permissions are granted in the case of All Rights Reserved (ARR) works. Activities such as copying, modifying, publicly displaying, publicly performing, and distributing copies of ARR work may be illegal unless permission is granted by the creator. U.S. copyright law generally gives the author/creator or owner of an original creative work an exclusive right to:

• Reproduce (copy) or distribute the original work to the public (e.g., create and sell copies of a film)

• Create new works based upon the original work (e.g., make a movie based on a book)

• Perform or display the work publicly (e.g., perform a play)

Violation of one of these rights is called copyright infringement. However, the use may be authorized by copyright limitations (such as fair use) described below.

What is Fair Use?

Start with an overview of fair use by viewing this short video:

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. Whether or not a specific use falls under Fair Use is determined by four factors:

• the purpose and character of your use

• the nature of the copyrighted work

• the amount and substantiality of the portion taken, and

• the effect of the use upon the potential market

Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute may have to be resolved by a lawsuit or arbitration. If it’s not a fair use, then you are infringing upon the rights of the copyright owner and you may be putting yourself or the institution at risk. The only guidance for fair use is provided by a set of factors outlined in copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use.

Understanding the Fair Use principle is important to fully recognize the differences between how copyrighted material and openly licensed or public domain material can be reused and shared legally.

Best Practices in Fair Use for Open Educational Resources

Faculty often have questions about applying Fair Use principles during the OER creation or adaptation process. They also have concerns or express uncertainty about adhering to copyright compliance when reusing material for educational purposes. Can I even include that image, video, or text? Should I link out to that resource or embed it? What flexibility do I have in adding this resource? The Code of Best Practices in Fair Use for Open Educational Resources was created in 2021. The Code serves as “a tool for educators, librarians, and authors to evaluate common professional scenarios in which fair use can enable them to incorporate inserts, including those protected by copyright, to create OER.” Additionally, the Code provides groups engaged in OER creation with a framework for evaluating and understanding how and when to include resources to meet instructional needs.

Additional information on Fair Use and the TEACH Act can be found at the University of Texas Libraries - Crash Course on Copyright website.

Why is an open license important?

It is the copyright status and license applied to a work which determine what you can and cannot do with the creative work of someone else. Knowing how to identify and differentiate between common types of copyright status will be useful when determining which content you may reuse, and how. One should assume that a work is all rights reserved, unless the creator explicitly states otherwise or the user of the work can prove it differently.

As you search for OER, you will become familiar with the markings of each copyright type.

What is the Public Domain?

A public domain work is a creative work that is not protected by copyright, which means it’s free for you to use without permission. Works in the public domain are those for which intellectual property rights have expired, have been forfeited, or are inapplicable.

Here are some examples of works in the public domain:

• Material created by the US Government, such as pictures taken by NASA

• Materials for which Copyright Protection has lapsed, such as “New Hampshire” by Robert Frost

• Works released to the public domain when they were created, such as images on Pexels

Determining if a work is in the public domain can be difficult, because the terms of copyright protection in the United States have changed over time. The Cornell University Library Copyright Information Center is a useful tool for understanding what works might fall into the public domain.

Why does open licensing matter?

The power of open licensing lies in its ability to clearly communicate how the creator intends the work to be used. A creator can explicitly share the work and control the licensing provisions while retaining ownership. Remember, for a work without a copyright notice, all rights reserved is assumed. If you want to openly share your OER with your students and faculty peers, or publish it online for the world to access, displaying an open copyright license statement with the work ensures it will be easily and clearly adopted in the way you intend.

In Module 7 you will spend more time learning about the permissions behind the six different Creative Commons Licenses. In that module, you will focus on distinguishing between the different permissions for adoption, adaptation, creation, attribution, and reuse. This module served as an introduction and overview of copyright, fair use, public domain, and open licenses.

Attributions

Information for this module was consulted and adapted from

"An Overview of Copyright" by Linda Williams, Tidewater Community College is licensed under CC BY 4.0

"Copyright, Creative Commons, and Public Domain" by William Meinke is licensed under CC BY 4.0

"Creating, Licensing and Publishing OER" by SUNY OER Services is licensed under CC BY 4.0

"Module 7: Public Domain" by Open Washington, Washington State Board for Community and Technical Colleges is licensed under CC BY 4.0

"What is an open license and how does it work?" by The Council of Chief State School Officers is licensed under CC BY 4.0