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.
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.
Recognizing the differences between how copyrighted material and openly licensed or public domain material can be reused and shared legally, allows for a comprehensive understanding of the Fair Use principle.
Additional information on Fair Use can be found at the GSC Copyright Center website.
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. Especially when resources under consideration have a variety of copyright or open license permissions - 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. In Module 7 you will dive deeper into the various creative commons open licenses and how they apply to OER. In Module 8 you will learn how to apply the permissions and principles of copyright, fair use, and open licensing into the process of adapting or creating your own OER, this Code will be revisited in more detail.
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.
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.
"Difference between open license, public domain and all rights reserved copyright" by Boyoung Chae is licensed under CC BY 4.0
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.
GSC Open Ed Guide is largely derived from Texas Learn OER by Carrie Gits for DigiTex is licensed under a Creative Commons Attribution 4.0 International License. 2020
