This week's video is going to address how copyright law affects
the creation and use of Open Educational Resources.
We'll do that by sharing five useful tips for navigating fair use, Creative Commons
licenses, and even what constitutes openness.
Tip number one: not all Creative Commons licenses are fully "open."
Creative Commons licenses are legally binding, customizable copyright licenses that you can
attach to a work to indicate what permissions users are allowed
to have when using your creation.
These licenses come in six types, with four distinct, interchangeable pieces.
These pieces denote the conditions under which an item can be used.
However, some of these Creative Commons licenses are more open than others, and allow users
to have more control over how they can use the items.
It's important when you're creating or using an Open Educational Resource that you
understand what these licenses mean, so you can avoid infringing on another owner's copyright,
and so you can decide which license you want to assign to your own resources as well.
Tip number two: Combining Creative Commons licenses isn't always easy.
When you're making a new resource out of a combination of old ones
(something that's actually pretty common with OER),
you need to take into account the individual licenses for each of the items you're using.
These three conditions, the ShareAlike, No Derivatives, and Non-Commercial conditions,
don't really mix well with resources licensed differently.
In fact, if you want to use an item licensed with a No Derivatives CC license
in a combination work, you just can't.
The only way you can include an item with a No Derivatives license is by linking out
to where it was originally shared.
As you can see on this graph, there are a lot of Creative Commons licenses that work
well with others, but the ShareClike, Non-Commercial, and No Derivatives licenses can be rough to
navigate around when licensing new materials that incorporate a combination of old ones.
When creating new OER or adapting existing materials, understanding how these licenses
work together can also be really useful.
Tip number three: Fair use is not a right.
It's a legally defensible position.
Now, this point has been argued a lot on the Internet, and as educators, I'm sure you're used to using
the "fair use" defense when deciding how to share copyrighted materials with your class.
But when you're creating a new Open Educational Resource and you want to include copyrighted
material… well, there are some things you need to remember.
According to the US Copyright Office, "Fair use is a legal doctrine that promotes freedom
of expression by permitting the unlicensed use of copyright-protected works
in certain circumstances."
That's fairly vague language, and it's vague for a reason.
Fair use is a defense that you have to build.
If you infringe on a company or individual's copyright, they can take you to court for
that, and although you can fight back and say "fair use!" you also have to prove
that your use was fair.
But how do you do that?
There are four things taken into account.
The first is purpose.
This is probably the topic you have the most familiarity with.
It relates to the purpose of the use of the original work.
Are you using the work to teach, inform, parody, or critique?
This can make your case easier, but it isn't enough to prove fair use.
The second point you need to consider is the nature of the original work.
If you're sharing work from an encyclopedia or other factual creation, you are probably
going to have a better case than if you're borrowing material from a novel, movie, or song:
creative works that need more protection under copyright law.
Third, you need to consider the amount of the copyrighted work that you're using.
Is the clip or quote integral to the original work, or are you taking something insubstantial?
Finally, fair use considers the effect that your use of the copyrighted work has on the original.
Are you sharing copies of a newly published work, and diminishing potential sales?
Most uses of copyrighted works for educational purposes don't have a large effect on the
original, but this is still something to consider when you're thinking of using a "fair use" defense.
So, remember: although fair use is a good defense, it's not a guarantee of safety
if you choose to use copyrighted materials.
Even if you think that the way you're using those materials is consistent with the four
points I've just covered, the owner of those works can still fight to take down your creation,
and for a single image or sound bite, is it really worth the risk?
Tip number four: You might not own the copyright to "your" creations.
Let's say you're writing an open textbook, and you want to include a chapter you used
in your first scholarly monograph, because it covers the same material.
You'll edit the information of course, and update it, but it's still recognizable as the same chapter.
Is that illegal?
Well, if you signed a generic contract with your publisher when your book came out,
it might be.
Although you do own the copyright over things you've created, you might not own the copyright
for creations like research publications that you've signed a contract for and work completed
on company time for an employer.
Furthermore, you can't defend your copyright over works you don't have control over,
ideas you haven't expressed in some way, or works you've forfeited your rights over,
like for Creative Commons-licensed works.
Before releasing an open educational resource, consider what rights you would like to retain
and what rights you would like to allow others to exercise over your works.
Tip number five: CC BY alone doesn't make it "open."
Open Educational Resources are unique.
Unlike open access research articles, a lot of an OER's value
comes from its ability to be edited by users.
In fact, to be usable in different classrooms, OER need to be
both accessible and adaptable.
Because of this, open licensing is only the first step to making an educational resource "open."
Sharing the resources in proprietary formats, like pdf, limits users' abilities to edit your resource,
and makes your CC-BY license pretty useless.
One thing you can do to make your resources more adaptable is to share them in multiple formats.
Feel free to share your work in your preferred file formats, but make sure that at least
one of your shared formats is something users can get into without needing to pay money
for different software.
Understanding copyright is important when creating and sharing OER, but
saying someone can edit your work and making it possible for them to edit it are two very different things.
Take both into account when you're creating or adapting a new Open Educational Resource.
And remember: although it can be confusing and difficult to navigate,
copyright law is there to protect your rights.
When sharing resources openly, you still have control over
how many and which of those rights you want to keep.
And as always, if you have any questions about any of the topics this video covered today,
feel free to contact your librarian, or check out our library guides on OER and copyright in the description.
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