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Copyright and Licensing for Open Educational Resources

Erin Fields

Open Education and Scholarly Communications Librarian

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Learn copyright basics including how copyright is assigned to a work
Understand the rationale behind and purpose of open licenses
Identify the 6 Creative Commons licenses and know how to assign them to their OER
Use Creative Commons licenses and insure compatibility among the CC licensed works they incorporate into their OER
Attribute Creative Commons licenses in their OER projects

AGENDA

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This slide outlines the main objectives for today’s session.

I’ll start by introducing you to a few copyright basics that provide a foundational knowledge before moving on to open licensing, and discussing the rationale and legal framework behind open licenses. From there we will delve deeper into Creative Commons licenses, which are the most common form of open license used in OER projects. We will spend a significant amount of time talking about the types of Creative Commons licenses and how you can incorporate licensed material into your own projects. Then, we will conclude by talking a bit about attribution of Creative Commons licensed works and the basic workflow necessary for determining how you can determine if a work is available for reuse in an OER project.

Before we proceed, is there anything missing from this roadmap?

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COPYRIGHT BASICS

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What is protected?

To begin, many things are protected by copyright, likely many more than you would expect. While copyright law was originally developed to protect literary works, today it has expanded to encompass many sorts of works.

An important caveat to copyright protection for all types of works is that then need to be original which includes creativity and independent creation.

So, you cannot copyright your hand-typed version of Harry Potter - while you may have created a literary work, it would not be an original one and as such, would not attract copyright…..unless of course you could prove that you created it independently from the original, then you might have a case (and a very interesting story).

Simularily, works must exhibit some modicum of creativity to attract copyright. A famous example of this is the Feist Publications v. Rural Telephone Service Company case, which determined that while a lot of work went into creating a white pages in a phone book, there was no creativity in this work (it was purely factual) and as such, could not be protected by copyright.

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What isn’t protected?

While copyright protection has grown to include various sorts of works, there has always been a large class of works that are not protected by copyright.

Common among most jurisdictions is the need for the work to be fixed so, a poem in your head - even if fully formed - cannot be protected until it has been recorded or fixed in a tangible medium of expression.

Additionally, copyright does not subsist in titles, names phrases, slogans etc...these sorts of work are not substantial enough to attract copyright.

Copyright also does not subsist in factual information or any works consisting entirely of factual information - there is not sufficient originality or creativity in such works. This means that it is possible for works that take a lot if time and energy to produce.

Importantly, all works eventually enter into the public domain after their term of copyright has expired. These works no longer benefit from copyright protection.

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How long does copyright protection last?

Copyright is meant to be granted to creators for a limited time

In Canada the term of Copyright is the life of the author plus 50 years

Each country sets its own term

After the term has expired the work enters the Public Domain

Image Attributions:

“Time”, Pham Duy Phuong Hung (via Noun Project), CC-BY

Copyright protection is predicated on the assumption that at some time all works will pass into the public domain. This is essential to the proper functioning of copyright, as a robust public domain provides a pool of works for creators to pull from to create new works.

In Canada the general term of copyright is the life of the author plus an additional 50 years. It is worth noting that our term will soon be increasing to life of the author plus 70 years, as this is a requirement under the updated NAFTA agreement that Canada has recently signed onto with the US and Mexico. Sometime within the next two years our term will be increasing. It is still unknown how this will impact works that have passed into the public domain in the interim.

One final note on public domain is that is has a specific legal meaning in this context and does not refer to any and everything found “publicly available” on a website.

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Who owns copyright in the works of Shakespeare?

Image Attributions:

“Pride and Prejudice and Zombies Cover” Bridgeman Art Library International via Wikipedia, Image reproduced under fair dealing for an educational purpose.

“James Bond 007 omnibus raymond benson” Illustrated007, Image reproduced under fair dealing for an educational purpose

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Let’s pause here to ask a question - Who owns copyright in the works of Shakespeare?

As you may have gathered, the answer is nobody. Shakespeare’s plays have all passed into the public domain and are free of all copyright restrictions. Users are free to use, reuse, destroy even all of the author’s works. It is because of this that we have things like “Pride and Prejudice and Zombies”. Somebody was able to take Pride and Prejudice from the public domain and use it as the foundation for a new work. This is the value of the public domain.

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How do I know if my work is copyrighted?

Congratulations! You are the proud owner of many many many copyrighted works!

Image Attributions:

“Winner”, parkjisun (via Noun Project), CC-BY

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Now let’s talk briefly about the creation of copyright protected works.

Under most contemporary copyright regimes, creators have to do almost nothing to attract copyright in their original works. Once the work is fixed, it automatically attracts copyright. This means that potentially, everything from your class notes to your grade school diary are protected by copyright.

Despite fixation being the only requirement, many copyright holders choose to use a copyright notice (c in the circle) to reinforce their copyright status to users.

Additionally, copyright holders may choose to register their copyright with a governmental body (usually called the copyright office). This may prove useful in the event that a copyright holder needs to defend their work against infringement. In the United States for example, no copyright lawsuit can go forward unless the plaintiff has registered a copyright in the work.

It may also be worth noting, that while fixed works are typically protected by copyright, the owner of the copyright is not always the original creator. For example, employers typically own the copyright in the work their employees produce. At UBC faculty retain copyright in their teaching and research materials, but most staff members do not own their copyright.

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Copyright, not just for creators

Copyright law seeks to strike a balance between creator and user rights

Image Attributions:

“Scale”, Arosh Khan (via Noun Project), CC-BY

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Well much of this presentation has outlined the exclusive rights of copyright creators, it is important to also mention the rights of copyright users. Signatories to international treaties all have some version of a general exception to copyright that is meant to give users the ability to use a copyright-protected work without asking for permission under certain circumstances.

To return to the initial purpose of copyright, these exceptions to copyright are meant to insure its proper functioning, which is to advance knowledge. If all copyrighted works were inaccessible to users, this would have a very negative impact on the ability of people to build and expand upon current knowledge.

Although we won’t spend time talking about exceptions to copyright in this presentation, it is important to know that exceptions such as fair dealing in Canada are an integral piece of the copyright landscape.

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Using copyright-protected works in your OER project

While it is possible to use copyrighted works in your teaching and research, it is not recommended to use them in your OER project unless they have been made available under an open license

Instructors and researchers rely on user rights and permission requests to reuse content in their teaching all the time. There are even special exceptions to copyright specifically for educational use. The problem with trying to rely on these exceptions in an open resource is that your use of the works does not automatically extend to reuse by others. Each user and each use case needs to conduct an independent analysis in order to determine whether or not a use is permissible. Even when creating an OER, you cannot insure that all potential users will also be making a permissible use. For example, educational exceptions are only available to government sanctioned institutions like universities and/or colleges, so your educational use of a CPR video may not extend to reuse by a lifeguard training institute that is offered by a for-profit institution. As we will discuss in more detail later on, true OER is not only freely available, it is freely reusable by others. Because of this it is recommended that you only include the work of others if it has been made available for downstream reuse as indicated by an open license like Creative Commons.

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OPEN LICENSES

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Image Attributions:

“The Growing Commons”, Creative Commons, CC-BY (Adaptation - this image has been cropped and overlaid with text)

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Open Licensing schemas are legal tools that provide a framework for sharing copyright protected works. They are inspired by people’s willingness to share their creativity and knowledge, and enabled by a set of open copyright licenses. There are several different open licenses including GNU, the open software licenses and Creative Commons. Each license has its specific audience and ideal use case. As Creative Commons is the most flexible and widely used, we will focus on it.

Creative Commons, like other open licensing schemas, was developed in response to the realities of current copyright law, which presupposes an “all rights reserved” approach to intellectual property. CC licenses are built on the assumption that not all creators want to restrict access to their work, and that many even want to encourage use and reuse of their works. Open licenses provide a mechanism for creators to offer advanced permission for certain types of reuse. This prevents users from having to ask for permission and encourages the reuse of content.

Creative Commons has been a pioneer in this field and today is the most commonly used form of open license, with over 1.6 billion CC licensed works in existence.

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License Elements

Attribution ShareAlike NonCommercial NoDerivatives

� BY SA NC ND

License Elements by Creative Commons, CC-BY

Image Attributions:

“License Elements”, Creative Commons, CC-BY

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Creative Commons licenses are all comprised of four elements that can be put together in various arrangements in order to suit the creators needs and comfort in sharing their work. The elements provide various levels of “control” to the creator, while still making the work available for some reuse.

These different license elements are symbolized by visual icons.

Attribution or “BY.” All of the licenses include this condition and it is a requirement to acknowledge the original creator.

ShareAlike or “SA,” which means that adaptations based on this work must be licensed under the same license. Two of the CC licenses include this condition.

NonCommercial or “NC,” means the work is only available to be used for noncommercial purposes. Three of the CC licenses include this restriction.

NoDerivatives or “ND,” which means reusers cannot share adaptations of the work. Two of the CC licenses include this restriction.

When combined, these icons represent the six CC license options. The icons are also embedded in the “license buttons,” which each represent a particular CC license type

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The Six Creative Commons Licenses

	Derivatives �Can Be Shared	Derivatives Can Be Shared ONLY IF �You Share Alike	Derivatives �CANNOT Be Shared
Commercial Use Allowed
Commercial Use �NOT Allowed

All Licenses Require Attribution

CC Licenses by Lumen Learning, CC-BY

Image Attributions:

“Creative Commons Rubric for OER”, Creative Commons, CC-BY

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When combined, the four license elements represent the six CC license options. The icons are embedded in the “license buttons,” which each represent a particular CC license type

The Attribution license or “CC BY” allows people to use the work for any purpose (even commercially and even in modified form) as long as they give attribution to the creator.

The Attribution-ShareAlike license or “BY-SA” allows people to use the work for any purpose (even commercially and even in modified form), as long as they give attribution to the creator and make any adaptations they share with others available under the same or a compatible license. This is the license required for content uploaded to Wikipedia, for example.

The Attribution-NonCommercial license or “BY-NC” allows people to use the work for noncommercial purposes only, and only as long as they give attribution to the creator.��The Attribution-NonCommercial-ShareAlike license or “BY-NC-SA” allows people to use the work for noncommercial purposes only, and only as long as they give attribution to the creator and make any adaptations they share with others available under the same or a compatible license.

The Attribution-NoDerivatives license or “BY-ND” allows people to use the unadapted work for any purpose (even commercially), as long as they give attribution to the creator.

The Attribution-NonCommercial-NoDerivatives license or “BY-NC-ND” is the most restrictive license offered by CC. It allows people to use the unadapted work for noncommercial purposes only, and only as long as they give attribution to the licensor.

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Commercial vs. non-commercial use?

Image Attributions:

“Vintage”, Rose Mcavoy (via Pixabay), Pixabay License

“Non Commercial”, Creative Commons, CC-BY

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Three of the licenses limit reuse of the work to noncommercial purposes only. In the legal code, a noncommercial purpose is defined as one that is “not primarily intended for or directed towards commercial advantage or monetary compensation.” This is intended to provide flexibility depending on the facts surrounding the reuse, without over specifying exact situations that could exclude some prohibited and some permitted reuses. Clear-cut rules exist even though there may be gray areas, and debates have ensued over its interpretation. In practice, the number of actual conflicts between licensors and licensees over its meaning appear to be few. The inclusion of “primarily” in the definition recognizes that no activity is completely disconnected from commercial activity; it is only the primary purpose of the reuse that needs to be considered.

It’s important to note that CC’s definition of NC depends on the use, not the user. If you are a nonprofit or charitable organization, your use of an NC-licensed work could still run afoul of the NC restriction, and if you are a for-profit entity, your use of an NC-licensed work does not necessarily mean you have violated the term. For example, a nonprofit entity cannot sell another’s NC licensed work for a profit, and a for-profit may use an NC licensed work for non commercial purposes.

The NonCommercial limitation applies to licensed uses only and does not restrict use by the licensor.

As with all CC licenses, the NC licenses only restrict what a reuser may do under the license and not what the licensor (rights holder) can do. Licensors that make their works available under an NC license are always free to monetize their works.

Also, licensees are always free to contact licensors to ask permission to use the work for commercial purposes.

NC licenses do not qualify as “open licenses” under the Open Definition, and works licensed under an NC license are not considered Free Cultural Works. This may be important if you want others to further distribute your work on Wikipedia, Wikimedia Commons, or other platforms requiring a license that meets the Open Definition or the Definition of Free Cultural Works.

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Derivatives/Adaptations

A derivative work is a new work based on an existing, copyrighted work that is sufficiently creative to deserve its own copyright

Smoothies Juice Fruit by Silviarita, Pixabay License

Image Attributions:

“Smoothies Juice Fruit”, Silviarita, Pixabay License

“License Elements”, Creative Commons, CC-BY

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Two of the licenses (BY-ND and BY-NC-ND) prohibit users from sharing (i.e. distributing or making available) adaptations of the licensed work. To be clear, this means anyone may create adaptations of works under an ND license so long as they do not share the work with others in adapted form.

Two of the licenses (BY-SA and BY-NC-SA) require that if adaptations of the licensed work are shared, they must be made available under the same or a compatible license.

An “adaptation” (or a “derivative work,” as it is called in some parts of the world) is a special term in copyright law. It means a “modified” or “transformed” work that has been created from a copyrighted work and that is sufficiently original to itself to be protected by copyright. (It can thus be regarded as a “new” work.)

Whether a transformed work differs sufficiently from the original work to be called an “adaptation” is not always easy to determine. Some examples of adaptations include a film based on a novel and a translation of a book from one language into another.

Keep in mind that not all changes to a work result in the creation of an adaptation:

Technical format-shifting (for example, converting a licensed work from a digital format to a physical copy) is not an adaptation regardless of what applicable copyright law may otherwise provide.
Fixing minor problems with spelling or punctuation is not an adaptation.
Syncing a musical work with a moving image is an adaptation regardless of what applicable copyright law may otherwise provide.
Reproducing and putting works together into a collection is not an adaptation of the individual works. For example, combining stand-alone essays by several authors into an essay collection for use as an open textbook is a collection and not an adaptation. Most opencourseware is a collection of others’ open educational resources (OER).
Including an image in connection with text, as in a blog post, a powerpoint, or an article, does not create an adaptation unless the photo itself is adapted

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MIXING AND COMPATIBILITY

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Adaptations/Remixes vs. Collections

Smoothie TV Dinner

Image Attributions:

“CC Smoothie”, Nate Angell, CC BY. Derivative of “Strawberry Smoothie On Glass Jar”, Element5 (via Pexels), public domain, and various “Creative Commons license icons”, Creative Commons, CC BY.

“CC TV Dinner”, Nate Angell, CC BY. Derivative of “tv dinner 1″, adrigu (via Flickr), CC BY, and various “Creative Commons license icons”, Creative Commons, CC BY.

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If your reuse of a CC-licensed work creates an adaptation, then there are limits on whether and how you may share the adapted work. We will look at those next. But first, a note about collections of materials.

In contrast to an adaptation or remix, a collection involves the assembly of separate and independent creative works into a collective whole. A collection is not an adaptation. You can think of the difference between adaptations and collections to smoothies and TV dinners, respectively:

1. Like a smoothie an adaptation or remix mixes material from different sources to create a wholly new work. In an adaptation or remix (and a smoothie), you often cannot tell where one constituent work ends and another one begins. While this flexibility is useful for the new creator, it is still important to provide attribution to the individual parts that went into making the adaptation.

An example of an educational adaptation would be an open textbook chapter that weaves together multiple OER in such a way that the reader can’t tell which resource was used on which page. That said, the endnotes of the book chapter should still provide attribution to all of the sources that were remixed in the chapter.

2. Like a TV dinner a collection groups different works together; however, a collection keeps them organized as distinct and separate objects. An example of a collection would be a book that consists of a group of essays from different sources, or by different authors. When you create a collection, you must provide attribution and licensing information about each of the individual works in that collection. This gives the public the information they need to understand who created what and which license terms apply to specific content.

When you combine material into a collection, you may have a separate copyright of your own that you may license. However, your copyright only extends to the new contributions that you made to the work.

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Check compatibility

Image Attributions:

“CC License Compatibility Chart”, Creative Commons, CC BY 4.0

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You need to consider license compatibility. License compatibility is the term used to address the issue of which types of licensed works can be adapted into a new work.This chart is a good reference to remind you which CC licenses are compatible with one another.

Remember this compatibility issue only comes into play if you want to take two or more CC licensed works and adapt them. It is not an issue if you are merely collecting them together.

For an example of derivative works, refer to the previous slide which displays two images with cc license buttons overlaid. In the slide notes you can also see examples of how these adapted images have been attributed to indicate that they are adaptations.

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ASSIGNING LICENSES

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Remember to share only what you have permission to

Putting a Creative Commons license on your work is great if you want others to use your work, but it is important to remember that you can only share

Works that you are the copyright holder of
Works that have been made available for reuse already

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Learn more about the CC License elements at https://creativecommons.org/licenses/

Get started at: https://creativecommons.org/choose/

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Creative

Commons

Licenses

& OER

Creative Commons rubric for OER by Creative Commons, CC-BY

Image Attributions:

“Creative Commons Rubric for OER”, Creative Commons, CC-BY

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Because you are all creating OER, it is worth mentioning that not all of the CC licenses are considered OER compliant and not all licenses meet the requirements for UBC’s OER Fund funded projects.

The easiest way to confirm that an education resource is an *open* education resource that provides you with the 5R permissions is to determine that the resource is either in the public domain or has been licensed under a Creative Commons license that permits the creation of derivative works.

The two CC NoDerivatives (ND) licenses are not OER-compatible licenses because they do not allow the public to revise or remix the education resource. Because the ND licenses do not meet the 5Rs or any of the major OER definitions, the open education movement does not consider ND-licensed education resources “OER.”

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ATTRIBUTION

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Best Practice for Attribution

T = Title

A = Author

S = Source

L = License

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TASL in action

Creative Commons 10th Birthday Celebration San Francisco by tvol. CC BY 2.0

Title - Creative Commons 10th Birthday Celebration San Francisco

Author - tvol

Source - title of the image is hyperlinked with source location

License - CC BY 2.0 *which is linked to a description of the terms of this license on the Creative Commons site

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Attribute this image

https://en.wikipedia.org/wiki/Horse#/media/File:Points_of_a_horse.jpg

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WORKFLOW

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Confirm that the work you want to use is covered by a CC license and is available for reuse

Remember that different licenses can apply to different parts of works - if you are borrowing one figure from a published paper, check if the figure was created by the authors or is actually borrowed from somewhere else. Only the original creator can assign a license

Record the information you need for an attribution statement

Don’t forget that attributions are an important requirement for CC Licensed works. It will be much easier for you to comply if you have kept track of the information you need in order to create an attribution statement

If you are remixing or adapting works, make sure your CC licenses are compatible

Refer back to slide 19 for compatibility chart

Include a CC License on your finished work - remember that only some of the standard licenses are truly OER compliant: https://creativecommons.org/choose/

Confirm that the work you want to use is covered by a CC license and is available for reuse

CC licenses should be easy to spot - they aren’t much help otherwise. Look for the CC buttons and or statements. Websites might have this information on a “terms of service” or similar page.
Remember that different licensed can apply to different parts of works - if you are borrowing one figure from a published paper, check if the figure was created by the authors or is actually borrowed from somewhere else. Only the original creator can assign a license

Record the information you need for an attribution statement

Don’t forget that attributions are an important requirement for CC Licensed works. It will be much easier for you to comply if you have kept track of the information you need in order to create an attribution statement

If you are remixing or adapting works, make sure your CC licenses are compatible
Include a CC License on your finished work - remember that only some of the standard licenses are truly OER compliant

[For images, we have created a Photo Metadata Tracking Template [Excel] which you can use to keep track of the various licenses on third party materials.]

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Questions?

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Resources

Supports & Services

UBC Library Open Education

Guides

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Stephanie Savage

stephanie.savage@ubc.ca