Chapter 2. Copyright and OER

Chapter 1 in Review

In the last chapter we went over definitions associated with OER and TXT0 and you now have a basic understanding of what they are, and how they are different from each other.

Disclaimer

Chapter authors and course facilitators are not qualified to provide legal advice on copyright and licensing. This chapter presents information and resources to help you make decisions about your work.

Copyright

Copyright protection (U.S. Copyright Law) does not just cover physical materials (printed books and magazines, films, cds, etc.). The internet has made it easy for educators to research, find and share resources. But a common mistake many educators make is to believe that "if it is on the internet, there are no copyright restrictions." Proper use of copyrighted materials extends to electronic resources available on the internet, and the Higher Education Opportunity Act (HEOA) of 2008 includes provisions that are designed to reduce the illegal uploading and downloading of copyrighted works through peer-to-peer (P2P) file sharing.

How do we stop making this mistake? Did you review the terms of use on the website or download? If no terms of use were available, did you assume it was ok to use since it was on the internet?  Or did you review copyright guidelines to determine if your use was allowed?

This is why OER work is so important—the goal is to make valuable educational materials openly licensed for educators to use freely without fear of breaking the copyright laws.

But before we start discussing OER in detail, let's take a step back and go over Copyright. Start by watching the next video.

The University of Hawaiʻi respects the intellectual property rights of others, and it is the responsibility of all members of all colleges to make a good faith determination that their use of copyrighted materials complies with the United States Copyright Law. However, copyright is not a set of black and white rules. In fact, copyright issues, guidelines, and interpretations are moving targets in a constant state of change as case law, litigation, and copyright infringement challenges are settled in court.

Everyone using University of Hawaiʻi computing and network resources consents to the Use and Management of Information Technology Resources (pdf). This policy outlines the responsible use of all college computing and network resources and states that users are expected to abide by the guidelines set forth. Persons who violate the copyright guidelines (C.2.4) as well as other policies regarding the use of copyrighted materials may be subject to revocation or limitation of their computer and network privileges, in addition to other disciplinary actions. MIT's Summary of Civil and Criminal Penalties for Violation of Federal Copyright Laws illustrates what could happen if a violation occurs.

We've all heard the term "copyright" before, but most of us have never really received formal training on copyright issues, especially as it pertains to distance education and digital content. As a result, many instructors upload content to Laulima assuming that because it is being used for educational purposes, and/or because the content is secured in a password-protected site, that permission to use copyright-protected material is not required.

However, these assumptions are not always true and permission may very well be required to legally upload content to Laulima.  So let's take a closer look at Copyright, with a focus on digital, or online content. Watch the following two videos about copyright and the use of materials for education.  

Public Domain

The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The work may have been created to be in the public domain or copyright may have expired. The public owns these works, not an individual author or artist. Anyone can use and even modify a public domain work without obtaining permission or making attribution.

An important wrinkle to understand about public domain material is that, while each work belongs to the public, collections of public domain works may be protected by copyright. You are free to copy and use individual images but copying and distributing the complete collection may infringe on what is known as the “collective works” copyright.

There are four common ways that works arrive in the public domain:

1. the copyright has expired
2. the copyright owner failed to follow copyright renewal rules
3. the copyright owner deliberately places it in the public domain, known as “dedication,” or
4. copyright law does not protect this type of work (ex. works created by the Federal Government, ideas, facts, and data)

Public Domain Frequently Asked Questions

Copyright Compliance

So, how do we go about making sure we do not violate copyright when selecting materials? First, determine if the materials you are considering are copyright-protected. Need help? Tools like the Copyright Genie, developed by Michael Brewer and the American Library Association Office for Information Technology Policy can help you decide. If you are considering using a work that is copyright-protected (not in the public domain, and not a government produced work), you basically have four legal options:

1. Link whenever possible.

• Placing a URL (web address) link on your page does not violate the copyright, and is often the simplest solution. This also includes embedding videos.
• Legal Sources of Online Content 

2. Use materials that comply with Fair Use (US Copyright Section 107).

• Fair use is not an automatic exception to copyright compliance; it is more of a legal defense since only a federal judge can determine if your use is fair use. If you use a copyright-protected work and the copyright holder claims copyright infringement, you could use “Fair Use” as a defense in court, but you would be obligated to prove it. Fair use lists four factors to be weighed when analyzing the proposed use in order to determine whether it is a fair one. You should consider all four factors, even though all factors do not have to be in favor of a use to make it a fair one.

• The purpose and character of the use, including whether it is for commercial use or for nonprofit educational purposes.
  This factor generally weighs in favor of fair use for nonprofit educational uses. However, educational use alone is not enough to constitute Fair Use. The other three factors must also be considered.
• The nature of the copyrighted work.
  This factor focuses on the work itself. This factor generally weighs in favor of fair use if the work to be used is factual in nature (academic, scientific/technical) rather than works involving artistic or creative expression such as fictional works, music, artwork, etc. However, some works, such as standardized tests and workbooks, will not qualify for fair use because by their nature they are meant to be commercially purchased.
• The amount and substance of the portion used in relation to the copyright-protected work as a whole.
  This factor considers how much of the copyrighted work was used in comparison to the original work as a whole. It also refers to the essence of the whole work. If a single paragraph summarizes an entire article, quoting that paragraph could violate copyright law. The copyright statute itself does not give numbers or percentages.
• The effect of the use on the potential market for or value of the copyright-protected work.
  Courts use this factor to determine whether the use of a work is likely to result in an economic loss for the copyright holder. If the proposed use became widespread and could negatively impact the market for or value of the copyrighted work, the fourth factor likely weighs against a finding of fair use. Note: Although effect on the market is often cited as the most important of the four, all factors must be evaluated together.

• Fair Use Resources

• Code of Best Practices in Fair Use for Open Educational Resources was released in February 2021 by American University (AU) Washington College of Law and AU’s Center for Media & Social Impact. This guide was created  to support people evaluating when and third party copyright materials can be incorporated into Open Educational Resources to meet their pedagogical goals. Accompanying videos of presentations on Fair Use are available.
• Fair Use Evaluator is a tool developed by Michael Brewer and the ALA Office for Information Technology Policy to help you understand how to determine the "fairness" of a use under the U.S. Copyright Code. 

3. Use materials that comply with the TEACH Act (US Copyright Law Section 110).

• Face to Face Classroom Teaching - Section 110 (1)
  This section allows educators and students to perform or display works in the course of face-to-face teaching activities (not just for entertainment) at a nonprofit educational institution, in a classroom or similar place devoted to instruction. There is no limitation on the types or amounts of a work that can be performed or displayed except that an audiovisual work that is not lawfully made cannot be shown. This section authorizes, for example, displaying a picture, drawing, or photograph; showing an entire movie; acting out or performing a play or opera; and performing musical compositions as well as sound recordings.
• Distance Education Teaching – Section 110 (2)
  This section was amended in 2002 to account for distance education. It applies to displaying images, playing motion pictures or sound recordings, or performing works in online classes. It would seem logical that you should be able to transmit the same performances and displays that you were lawfully able to use in your face to face classroom. However, some lawyers argue that digital sharing involves the act of retaining, distributing, and digital transmission. Because of this, the rules are more strict for distance education than for face to face classes. For example, you can't show an entire movie in online classes.
• The new exemptions under TEACH specifically do not extend to:

• Electronic reserves, coursepacks (electronic or paper) or interlibrary loan (ILL).
• Commercial document delivery.
• Textbooks or other digital content provided under license from the author, publisher, aggregator or other entity.
• Conversion of materials from analog to digital formats, except when the converted material is used solely for authorized transmissions and when a digital version of a work is unavailable or protected by technological measures.

• A few rules to keep in mind are:

• Don't use materials that are sold or licensed for online education (e.g. materials by Wiley or Cengage)
• Don't use materials that students can download and retain unless the copyright allows this
• Limit access to the works to students enrolled in the course (Louisiana State University)

• For more information about the TEACH Act, view the Brandeis University's Copyright in the Classroom website. 

4. Obtain permission from the copyright holder.

• Should you decide that you want to seek permission to use the material from the copyright holder, start early and obtain permission in writing.
  To learn more, read "Copyright Permissions Sample Letter" by Copyrightlaws.com. This article goes over how to contact a copyright owner to obtain permission to use their copyright-protected work. You can also use this sample letter template. We recommend you send the letter with a self-addressed stamped envelope, or email it with an Adobe form formatted to allow a digital signature from the copyright owner.

Common Scenarios

Scenario 1:  An instructor wants to scan and post on Laulima, a PDF of a copyrighted textbook that her students have complained is too expensive.

Fair Use? No. Scanning (digitizing) constitutes copying. Copying an entire book and distributing it to students (even electronically on a password-protected platform such as Laulima) would adversely affect the market for that work, thus weighing heavily against Fair Use.

Possible solution(s): The instructor should consider placing a copy on course reserve at the library or identify an open (or less-expensive) textbook.

Scenario 2: An instructor wants to scan an article from a the Honolulu Star-Advertiser (local newspaper) and post it on his course site in Laulima.

Fair Use? Yes. This would probably be considered “spontaneous copying” and is permissible as long as it is a one time use. A Fair Use analysis would need to be done if the instructor wanted to reuse the article in subsequent semesters.

Have more questions about Copyright Compliance?

If so, we don't blame you. Take a look at the University of Texas Libraries' Copyright Crash Course website, and/or  The Copyright for Libraries: General Information website from the Association of Research Libraries.

A good resource is also this “Using Copyrighted Works in Your Teaching—FAQ: Questions Faculty and Teaching Assistants Need to Ask Themselves Frequently,” by Peggy Hoon, downloadable as a PDF file.

If you'd like more information/help deciding whether you can use a particular copyrighted material, you can also check out Delaware Community College's Can I use it? Fair Use & TEACH Act webpage. Fordham University published Fair Use in the Real World.

Have more questions about Copyright Compliance? Library Copyright has a fun list of copyright checking tools.

Open Education

Open education is an idea, a set of content, practices, policy, and community which, properly leveraged, can help everyone in the world access free, effective, open learning materials for the marginal cost of zero. We live in an age of information abundance where everyone, for the first time in human history, can potentially attain all the education they desire. The key to this sea change in learning is Open Educational Resources (OER).  

–Excerpted from Cable Green’s blog post “Open Licensing” on the Year of Open, used under a CC BY 4.0 license.

Open Licensing

Open licenses work with copyright to promote shared use. 

Open licenses fall between the public domain and all rights reserved (copyright). An open license specifies the conditions for using a copyrighted work. It grants permissions and states restrictions. Broadly speaking, an open license is one that grants permission to access, re-use and redistribute a work with few or no restrictions (definition from Open Definition).

The diagram below explains how an author can exercise their rights over their work by choosing between public domain, open licensing, and an all rights reserved copyright statement.

Creative Commons

In the past, creators of copyrighted content would need to be found and contacted for permission to use their works. This was a difficult and often impossible task.  Illegal copying and modifications would take place, even in cases when the creators would not have objected to having their works used. The only other alternative was for creators to waive copyright upfront and release the work into the Public Domain, which meant waiving all their copyrights. Content creators wanted a better system where they could retain the copyright but also share their works with specified limits. This inspired lawyers to create a system of open licensing. One such system is managed by Creative Commons (CC).  Creators can use Creative Commons licenses to give others the right to share, use, and build upon a work that they have created. In the video below, some of the leading thinkers behind open licensing describe how the organization is helping save the world from failed sharing through free tools that enable creators to easily make their work available to the public for legal sharing and remix. (The Creative Commons video page has a transcript of this video.)

Creative Commons Terms

Creative Commons (CC) licenses are based on four terms (rules) represented by four icons: 

View Extended Text Description 

Creative Commons Licenses

The six Creative Commons (CC) licenses are formed by using one or more of the four rules. The following describes each of the six main licenses offered when you choose to publish your work with a CC license. They are listed starting with the most open license type you can choose and ending with the most restrictive license type you can choose. This license selection tool asks the author a few questions and generates the appropriate license that you can add to your work.

View Extended Text Description 
Click on the image above to enlarge

Example

These simple codes tell the user, up-front, what permissions the copyright owner has given for their work. For example, Kawika is looking for an image of a dog for his biology class. He finds an image of a dog on Flickr with the Creative Commons license CC BY-ND. By understanding that code, he knows immediately that the copyright owner has given everyone permission to use that image but people may not alter the image. Kawika is also required to attribute the image to the creator. If the image had a CC BY code, he would know that he could alter the image, for example by editing the image and adding another dog to the image.

Giving Credit - Attribution

CC licenses require us to use the work according to the copyright owner's license conditions. The first and primary condition of all CC licenses is attribution to the creator.

Citations and Attributions: Is there a Difference?

"Citation" and "Attribution" are often used as synonyms, but they mean two different things. Both citations and attributions give credit to the original creators and/or copyright holders. Citation is a scholarly practice for tracking the sources of information and concepts of a work, referencing sources such as published books, articles, and government documents. Attribution is a legal practice that states the legal permissions given by the copyright holder regarding the use of the work.

Click on the image below to open  below to open the slide presentation and learn more about the differences between citations and attributions.

Best practices for attribution

A good rule of thumb is to use the acronym TASL, which stands for Title, Author, Source, License.

Title - What is the name of the material? If a title was provided for the material, include it. Sometimes a title is not provided; in that case, you can use a phrase similar to "Image by..." or don't worry about it.

Author - Who owns the material? Name the author or authors of the material in question. Sometimes, the licensor may want you to give credit to some other entity, like a company or pseudonym. In rare cases, the licensor may not want to be attributed at all. In all of these cases, just do what they request.

Source - Where can I find it? Since you somehow accessed the material, you know where to find it. Provide the source of the material so others can, too. Since we live in the age of the Internet, this is usually NOT a separate piece of the attribution.  Instead, it is common to hyperlink the title of the material to where the material resides.

License - How can I use it? You are obviously using the material for free thanks to the CC license, so make note of it. Don't just say the material is Creative Commons, because that says nothing about how the material can actually be used. Remember that there are six different CC licenses.  Name and provide a link to it.  For example, stating CC BY and linking it to http://creativecommons.org/licenses/by/4.0/.  And, if the licensor included a license notice with more information, include that as well.

Example

For the slide presentation above, the attribution is:

"Citations vs. Attributions" by Amy Hofer for Open Oregon Educational Resources is licensed under CC BY 4.0.

Examples of attribution

(Source: "Best practices for Attribution" by Creative Commons is licensed under CC BY 4.0)

Here is a photo. Following it are some examples of how people might attribute it.

This is an ideal attribution

"Creative Commons 10th Birthday Celebration San Francisco" by tvol is licensed under CC BY 2.0

Because:

Title = "Creative Commons 10th Birthday Celebration San Francisco"

Author = "tvol" - linked to his profile page

Source = "Creative Commons 10th Birthday Celebration San Francisco" - linked to original Flickr page

License = "CC BY 2.0" - linked to license deed

This is a pretty good attribution

Photo by tvol / CC BY

Because:

Title = Title is not noted (it should be) but at least the source is linked.

Author = "tvol"

Source = "Photo" - linked to original Flickr page

License = "CC BY" - linked to license deed

This is an incorrect attribution

Photo: Creative Commons

Because:

Title = Title is not noted.

Author = Creative Commons is not the author of this photo.

Source = No link to original photo.

License = There is no mention of the license, much less a link to the license. "Creative Commons" is an organization.

Don't make it too complicated

The license tells you to be reasonable:

You may satisfy the conditions in (1) and (2) above in any reasonable manner based on the medium, means and context in which the Licensed Material is used. For example, it may be reasonable to satisfy some or all of the conditions by retaining a copyright notice, or by providing a URL or hyperlink associated with the Licensed Material, if the copyright notice or webpage includes some or all of the required information.

There is no one right way; just make sure your attribution is reasonable and suited to the medium you're working with. That being said, you still have to include attribution requirements somehow, even if it's just a link to an About page that has that info.

Derivative Works

If you change the original work in any way (e.g., cropping an image, changing the colors, replacing words, etc.), you are creating a derivative work of the original.  You should always attribute the original work in any derivative work.  Although there are different ways you could attribute the work, an easy way to do this is to start the attribution with "This work is a derivative of..." then add the attribution as you normally would. You may also include the changes you made.

This is a good attribution for material you modified slightly

"Creative Commons 10th Birthday Celebration San Francisco" by tvol, used under CC BY / Desaturated from original

Because:

Title, Author, Source, and License are all noted

Modification = "Desaturated from original"

This is a good attribution for material from which you created a derivative work

This work, "90fied", is a derivative of "Creative Commons 10th Birthday Celebration San Francisco" by tvol, used under CC BY. "90fied" is licensed under CC BY by [Your name here].

Because:

Original Title, Author, Source, and License are all noted

Derivative = "This work, "90fied", is a derivative of..."

New author of the derivative work is also noted

Note: If you're at a point where you are licensing derivative works, go to Marking your work with a CC license.

Other guides and resources related to attribution

• How To Attribute CC Photos poster by foter

Attribution Tools

Now that you have an idea of the information you need to create a good attribution, we'd like to share two tools to help you with attributions.

1. Source Tracker - Clicking on this link will make a copy of this file in your Google Drive to help you keep track of materials you might use as you explore resources.
2. Open Attribution Builder from Open Washington - This is a great online tool that will help you build your attributions once you have all of the information.

Considerations for Images, Sound, and Videos

Inevitably you will want to use images and videos in your teaching materials.  Images and videos can be in the public domain, carry open licenses such as CC, or be copyright protected, and it is important to be sure the status of an image or video before using it.

Below are some tips to help you identify and use images, sound, and videos correctly.

Images

• Assume all images on the internet are copyright protected unless you can find out otherwise (usage terms, licensing info, etc.)
• You can conduct an advanced image search in Google to filter results by usage rights
• You can use the Openverse (formerly Creative Commons Search) to search other sites, such as Google Images or Fotopedia, using a Creative Commons filter.

Sound

• Assume all sound files on the internet are copyright protected unless you can find out otherwise (usage terms, licensing info, etc.)
• Refer to Creative Commons Legal Music for Videos for places to look for openly licensed sound files

Videos

• Assume all videos on the internet are copyright protected unless you can find out otherwise (usage terms, licensing info, etc.)
• For YouTube videos, expand the description under the video and look for the license info. A standard YouTube license allows you to link (and embed if code is provided), but the video is copyright protected. If it has a Creative Commons license, it is licensed under a Creative Commons CC BY license.  You can also filter your searches for videos with Creative Commons licenses.
• You can also filter your searched videos on Vimeo by CC license.

Attributions: 

• Video: "Copyright Tidbits: What is Copyright?" by USF Library Instructional Video - Tampa Campus is licensed under a Standard YouTube License. 
• Video: "Copyright Basics for Teaching" by  CRC Library is licensed under a Standard YouTube License. 
• Video: "Copyright on Campus" by Copyright Clearance Center is licensed under a Standard YouTube License. 
• Original Content from "Welcome to the Public Domain" by Stanford University Libraries is licensed under CC BY NC 3.0.
• Video: " Why Open Education Matters" by David Blake is licensed under CC BY 3.0. 
• Image: "Difference between open license, public domain and all rights reserved copyright" by Boyoung Chae via Wikimedia Commons is licensed under CC BY 4.0.
• Video: "A Shared Culture" by Creative Commons is licensed under a Standard YouTube License. 
• Video: "What are Creative Commons Licenses?" by U of G Library is licensed under CC BY NC SA 4.0.
• Image" Key License Terms" is modified (cropped) from "Creative Commons Licenses" by BockoPix that is licensed under CC0 1.0
• "The Licenses," by Julie Kent for Thompson Rivers University Williams Lake Faculty is licensed under CC BY NC 4.0.
• Google Slides Presentation: "Citations vs. Attributions" by Amy Hofer for Open Oregon Educational Resources is licensed under CC BY 4.0.
• Original Content from "Attribute Open Content" by Open Michigan is licensed under CC BY 4.0.
• Original Content: "Best practices for Attribution" by Creative Commons is licensed under CC BY 4.0.
• Video: "Copyright on the Internet" by U.S. Copyright Office is licensed under a Standard YouTube License.