Copyright and Open Licensing
Copyright is established in federal law and varies from country to country. In the U.S., copyright was written into the original constitution in 1787, wherein it was stated that copyright is established "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (Article 1.8.8). Thus, at its foundation, copyright in the U.S. exists "to promote the progress of science and useful arts," and authors are given control of their creative works for a specified period of time so that they can profit from them, thereby encouraging them to create more.
Types of Works
Copyright applies to any tangible or electronic creative work, such as a book, movie, video, song, lyrics, poem, picture, lesson plan, web page content, etc. Any creative work is copyrighted as soon as it is created. Intangibles, such as ideas, concepts, and mathematical equations and works that lack originality cannot be copyrighted.
Since copyright applies as soon as a work is created, authors do not need to go through any process to copyright their works. They are copyrighted automatically. However, proving that you hold the copyright on your creative work is another matter. For instance, say that you write a novel and lend the manuscript to your neighbor to proofread. What is to prevent your neighbor from claiming that the novel is her creative work and, therefore, claiming to hold its copyright? To help in preventing and addressing copyright problems, the U.S. government allows copyright holders to register copyright with the U.S. copyright office [http://www.copyright.gov/]. Thus, while an author does not need to do anything to copyright a work, they do need to go through a process if they would like to register the copyright of that work to safeguard against infringement.
The Copyright Symbol
The copyright symbol may be placed on a work to remind and inform users of its copyright status: ©. However, the copyright symbol is only a reminder. The absence of the symbol does not mean that the work is not copyrighted, and the presence of the symbol is not proof that the work is copyrighted (as will be discussed further in the case of public domain works).
By default, the author of a work holds the copyright on that work. The main exception to this rule would be if the author was being paid by someone else to create the work and the author had signed a contract stating that work created while on-the-job belongs to the employer commonly known as "work for hire". Contracts might also stipulate that this depends upon when and where the work was created (during standard work hours vs. after work hours or in the office vs. at home). Some educator contracts state that creative works by an educator are owned by the educator, while others state that they are owned by the school or district. So, if you would like to know who holds the copyright of works you create as part of your job, you should check your teaching contract or contact your employer.
Copyright generally means that others cannot use copyrighted material without the permission of the author and that permissions are restrictive. For instance, downloading a bootleg version of a movie is a violation of copyright, because you did not purchase the copy from the copyright holder. Further, even if you do purchase the movie from the copyright holder, you can only use the movie in the ways that the copyright holder allows (e.g., for private home use, not for public use). Thus, by purchasing a copy of a work, you do not "own" that work in the sense that you are not free to do whatever you like with it. You must still abide by any copyright restrictions placed on the work, which might determine how and where you use the work, your ability to make copies of the work, and your ability to modify the work.
You can generally provide a web link to copyrighted material from your own materials without permission from the copyright holder. This is different from copying/pasting the copyright material into your own work, because it allows the copyright holder to maintain control of their content and to generate revenue through web traffic. The primary exception to this rule would be if you provided a link to materials that should not be publicly accessible and, therefore, allowed your users to bypass restrictions placed on the content by the copyright holder.
Copyright comes with a time limit. The purpose of this is that the U.S. government recognizes that copyright can only benefit the copyright holder for so long and that at some point copyright should expire. Currently, the U.S. copyright law states that copyright ends 70 years after the death of the author. Upon expiration, copyrighted materials move into the public domain. Copyrighted materials may also lose their copyright status under other conditions. For instance, a copyright holder may relinquish the copyright status on their work, thereby allowing it to pass into the public domain.
Copyright and Technology
Advancing technologies, ranging from the player piano to the internet, have always had unintended consequences for copyright law, and copyright law has always been slow to keep up with advancing technologies. Copyright law has changed over time, but as new technologies empower us to share and use copyrighted materials in new ways and at greater scale, copyright law gradually changes in response.
- Can I legally show my students videos from my Netflix account or other subscription streaming services?
- No. Your license agreement does not allow you to do this.
- When is a work copyrighted?
- As soon as it is created or published.
- Does a work need to be published to be copyrighted?
- No, though it must be in some physical form (e.g., manuscript, recording).
- Does an author need to register their work in order for it to be copyrighted?
- No. Authors may register their work with the US copyright office to protect against infringement, but even unregistered works are copyrighted.
- If something is labeled with a copyright symbol (i.e., ©), does that mean it is copyrighted?
- Maybe. The symbol serves as a reminder, but the copyright might have expired.
- If something is not labeled with a copyright symbol (i.e., ©), then is it copyrighted?
- Maybe. Maybe not. The label has nothing to do with whether or not a work is copyrighted. The copyright label only serves to remind and to inform. If you see no label, you should assume that the work is copyrighted and look into the matter further.
- Can I link to copyrighted materials?
- In most cases, yes. Just be sure that you are linking to the resource as it is provided by the publisher (not uploaded to someone's personal server, etc.) and that your link does not bypass a copyright holder's login system.
- Can I embed copyrighted materials into my presentation or website (e.g., YouTube videos)?
- That depends on the terms of the license that the copyright holder has released the content under. Generally, if a site like YouTube gives you an embed script, then you are able to use it (provided that you do not change the script, remove attribution, etc.).
Additional ResourcesSome additional resources that may be useful for exploring these issues include the following:
Fair Use is an exception or limitation to copyright law that allows you to use some copyrighted materials in particular circumstances without the copyright holder's permission. Specifically, if used for nonprofit educational purposes, some copyrighted materials may be used for teaching, but your use (a) should directly relate to your educational goals, (b) should only utilize a relatively small portion of the work, and (c) should not negatively impact the copyright holder's ability to profit from the work. Fair use means that copyright-restricted works can be used for educational purposes without permission under certain conditions. The four guiding principles that determine if use is fair are:
"Fair Use" Guiding Principles
- Nature of Use
- Type of Work
- Amount Used
- Commercial Impact
The first principle covers what you are doing with the content and whether your use aligns with the author's intended use. Fair use only applies to uses of works that are transformative in nature. This means that your intended use must be different from the author's intended use. Consider a novel. You can quote lines from a novel in a paper you write without permission from the novel's author, because you are writing the paper to analyze literary elements of the novel, not to tell a story. If, however, you took those same lines and placed them in your own novel, then that would not be an example of fair use, because your intended use would be the same as the original author's intended use. In education, this means that using someone else's educational content (e.g., an image from their textbook) would not generally be fair use, because your intent is the same as theirs (i.e., educational and, therefore, non-transformative).
The second principle gives greater flexibility in using informational or factual works than to artistic or creative works. Thus, copying a few pages from an encyclopedia is viewed as more conducive to fair use than doing the same with a detective novel, because the information's benefit to society is readily apparent.
The third principle ensures that you only use as much of the copyrighted material as is necessary to achieve your goal. Thus, quoting a line from a novel would be considered fair use, but copying multiple chapters of the novel for this purpose would not. This is both a quantitative and qualitative consideration, in that you should not use more than is needed but fair use also should avoid using the "heart" of a work.
And the fourth principle considers whether copyrighted material negatively impacts the author's ability to profit from it. If you copy an article to share with your class, this would prevent the copyright holder from selling access to the article, which would be a violation. However, if you were to copy only a paragraph of an article for this purpose, it is less feasible that the copyright holder would potentially lose money on this use. So, this use would be more defensible as fair use.
If it weren't for fair use, you wouldn't even be able to write a paper that quoted a famous author without permission, which would be a serious matter for scholarly progress. Consider this quote from The Fellowship of the Ring:
All that is gold does not glitter, not all those who wander are lost; the old that is strong does not wither, deep roots are not reached by the frost. - J. R. R. Tolkien
Without fair use, the inclusion of this quote in a paper on literary analysis or on this website would be a copyright violation, because I did not seek the author's prior consent to make a copy of this text from his book or to distribute it online. However, my use in this case is a transformative use and is only large enough to make the educational point, so it is allowable. Would being able to read this quote on this website prevent someone from reading his book (thereby depriving the copyright owner of profits)? Certainly not. On the contrary, however, if I were to provide several chapters of Tolkien's book online without prior permission from the copyright holder, then this would certainly be a copyright violation that could be acted upon.
Similarly, copying another teacher's lesson plan, changing a few words, and posting it online would be a blatant copyright violation. Fair use becomes problematic in education if you are trying to use educational works in your own creations (e.g., materials created specifically for education, such as lesson plans or textbook chapters) and/or you are using too much (such that it might prevent the owner of the copyright from profiting from the work).
To determine if a desired use of copyright-restricted material would fall under fair use, ask yourself four questions:
- Use: Is the use transformative? (Yes = Fair Use)
- Type: Is the work informational/factual in nature? (Yes = Fair Use)
- Amount: Is the use minimal? (Yes = Fair Use)
- Impact: Does the use negatively impact the copyright holder's ability to profit from the work? (No = Fair Use)
Fair use is a judgement call, but the call is made based on the answers to these four questions. Thus, if your answer to all four questions aligns with fair use, then your use would likely be judged as fair. If the answer to one question does not align with fair use, then your use might still be fair, but it increases the potential for it to be judged otherwise. And so forth. In many court cases, uses that met three criteria have been deemed as fair, and in others, uses that only met one or two criteria have been deemed as fair, but there is never any guarantee. In short, only a judge can determine if use is fair, but a judge would use these four guidelines in making the determination.
To help safeguard their institutions and employees, many schools will adopt rules for interpreting fair use. For instance, some institutions will allow copyrighted materials to be used up to a certain percent of the work (e.g., a section of a book can be copied as long as it constitutes 10% or less of the entire book). These rules are not perfect reflections of the law but are rather interpretations intended to protect.
Here's a comparison. Let's pretend that 55 mph is the speed limit throughout the U.S. but that the government allows for people to exceed this speed limit "a reasonable amount" in particular cases of emergency. If such a law existed, it would be up to judges to determine if any case of traveling faster than 55 mph constituted a legitimate emergency case and if the actual speed was reasonable. Like copyright, this law sounds fairly fuzzy. Let's also say that you are a bus driver and your school has a rule that this law means that you should only exceed the speed limit if a child is hurt and in these cases you should never go faster than 65 mph. Though this is not actually what the law says, it is your school's interpretation of the law and is intended to keep you and the school safe.
Thus, when considering institutional rules, you should recognize that they are intended to prevent you from breaking a rather fuzzy law but that they also may not entirely reflect what the law actually states. In any case, you are safest abiding by your institutional rules for fair use, because this helps to ensure that your institution will be on your side if there is any question about your copyright-restricted material use.
Parody is one example of fair use in which copyrighted materials may be used to critique the author. Thus, using an image of someone to critique that person would probably be fair use (as in the case of Galvin v. Illinois Republican Party [https://edtechbooks.org/-PHQ]). However, using one person's copyrighted works to critique a different person or an unrelated social issue (as in the case of many memes) would likely not be parody, since the copyrighted work is being used to make fun of something other than the author or the work itself.
These are examples that would probably qualify as fair use (i.e. they probably do not violate copyright):
- Quoting a few sentences from a book in a paper on literary criticism;
- Adding text to a movie screenshot to critique/parody the movie;
- Including a paragraph of text from a book in a quiz as background for asking questions;
- Showing a short clip from a popular movie to analyze how it was made.
These are examples that would probably NOT qualify as fair use (i.e., they probably violate copyright):
- Copying pages from a workbook for students to complete;
- Copying or remixing a lesson plan;
- Creating a calendar of pictures that were photographed by someone else;
- Including a popular song as background music on a YouTube video your students create;
- Holding a public screening of a movie in the school auditorium that you have purchased for personal use.
Navigating Fuzziness and Risk
Fair use can be very fuzzy, and it may be that educators violate fair use regularly in their classrooms without worrying about legal repercussions. Even if copyright is violated, the risks associated with violation tend to vary by use. For instance, if you copy a lesson plan for use in your classroom without first gaining permission, the odds are that you will not run into any legal issues. However, if you try to sell this same lesson plan online or share it on your teacher blog, then the legal risk increases. This does not mean that you should violate copyright discretely, but merely that this decision would be based upon a moral imperative rather than legal risk.
The Bottom Line
Fair use is complicated, only provides educators with limited opportunities for use, and is typically more of a headache than it is often worth when talking about any substantive use of copyrighted materials.
The U.S. Government has recently started archiving court cases related to fair use, which may be instructive if you have specific questions about what courts are classifying as fair use and not.
Copyright law varies from country to country, but in the US, Public Domain is a technical term referring to works that are not subject to copyright protection.
In general, there are three groups of works that are in the public domain:
- Old works for which the copyright has expired;
- Exempt works that may not be copyrighted or that were created under certain conditions;
- Any works that have been released to the public domain by their authors.
Under the current US copyright law, any copyrighted work will automatically pass into the public domain 70 years after the death of the author. In general terms, this means that virtually all classics or materials older than 120 years or so are in the public domain. To determine if a specific work is in the public domain, however, you should find out when the author died and add 70 years in order to determine the date at which copyright expires. This time frame has gradually been lengthened in US history, so some works may still be in the public domain that were created less than 70 years ago.
For instance, the John Wayne and Maureen O'Hara movie McLintock! passed into the public domain in 1994.
Copyright can only be applied to specific types of works (e.g., books, movies, images) and cannot be applied to general knowledge. For this reason, you do not need to cite anyone when you state a fact (e.g., "Jupiter is a planet"). Works may also be exempt from copyright if they are created under certain conditions of employment. The most common example of this is when US federal employees create works as part of their jobs (e.g., active duty service men and women in the armed forces). Works that these individuals create (e.g., photos taken) may be placed in the public domain by virtue of their employment.
Any author of a work may willingly choose to release that work into the public domain by simply labelling the work (e.g., "this work is in the public domain"). By doing so, the author gives anyone (e.g., individuals, corporations) the right to use their work for any purpose, without limitation or attribution.
Since they are not subject to copyright protection, public domain works may be used for anything and may even be included in derivative works and may be sold. There are no restrictions on how these works may be used, so citations are not generally needed. However, if you are using public domain content in your own work, it would be helpful for others to know what parts are public domain so that they know how they might also reuse and remix your content.
Public Domain Repositories
The terms "open" and "free" colloquially have many meanings. "Free" generally has two that may be best understood by referring to their latin equivalents: gratis and libre. In the context of openly licensed materials or Open Educational Resources (OER), gratis means that content and resources are provided at no cost. Libre means that you are free to do what you want with these resources.
As an example of this distinction, you may find a website with "free" videos or another teacher may give you a set of old textbooks for "free" (i.e. gratis), but you are not then able to do whatever you want with those videos and textbooks (i.e. not libre). Similarly, Facebook is a gratis service, because you do not pay a fee to use it, but it is not a libre service, because you have only limited access to download, delete, or control your data within Facebook. This is an important distinction, because many gratis resources are not libre, and when we talk about openness, we mean both gratis and libre.
That is, Gratis + Libre = Open.
The Five "R's" of Openness
Openness may mean different things to different people, but when we refer to openness in terms of open licensing, we mean openness that gives us freedom to do the five R's:
Hilton III, J., Wiley, D., Stein, J., & Johnson, A. (2010). The four Rs of openness and ALMS analysis: frameworks for open educational resources. Open Learning, 25(1), 37-44.
Sometimes authors of creative works who want to share them openly want to maintain some control over what others can do with their work. Open Licenses have arisen as a means for openly sharing content while at the same time preserving desired rights to the author.
Open licenses find a nice balance between the restrictions of copyright and the unfettered freedoms of public domain, making them a good option for anyone desiring to share their work with others. Authors of creative works have the right to release those works under any license they choose (except in cases where they have signed over that right to a publisher, employer, etc.). The table below provides three examples of common open licenses.
Common Open Licenses
|GNU General Public License (GNU-GPL)|
To help authors to release their works easily and in a manner that safeguards the rights that they care about, a number of template licenses have been created by Creative Commons. Many works found on the internet are licensed under one of these types of licenses, and in general, you do not need permission to use them in your work as long as you properly attribute (cite) them and abide by any additional requirements set forth in the license.
Creative Commons licenses come in a number of varieties. Two are merely restatements of Public Domain, while the rest provide the author of a work the ability to retain varying levels of control of how the work may be used. The most general Creative Commons license is the CC BY or Creative Commons Attribution license, which basically means that others are free to reuse, redistribute, revise, and remix the creation as long as they properly cite the author. More information about each license is provided in the following table.
Creative Commons License Brief Explanation Table
In general, copyleft and creative commons licenses value open practices in that they seek to allow for works to be reused, redistributed, revised, and remixed, but licenses vary based upon what is required of the user to do so legally. For instance, the Creative Commons Attribution license (or CC-BY) requires the user of the work to give appropriate credit, to provide links to the license, and to not suggest that the original author endorses any new use of the resource.
More details on specific Creative Commons licenses are provided in the Attribution Quick Reference Guide. There are a number of libraries, search engines, and search engine settings that allow you to easily search for copyleft-licensed works. Some popular examples include:
- Wikimedia Commons [http://commons.wikimedia.org/]
- Creative Commons Search
- Flickr Creative Commons
- Vimeo Creative Commons
- Creative Commons Music
If a work (e.g., picture, song, video, lesson plan, rubric) does not have a statement of copyright status attached to it, you should generally assume that it is copyrighted and should seek permission before using it.
Open Content Providers
Open educational resources (OER) are made available from many different sources. This list, though not exhaustive, includes some of the more prominent providers. Explore these resources to find material that will be useful for you in your classroom, taking note of what licenses resources are released under. Watch this video to learn how to use a search engine to find openly licensed content.
Open Textbooks & Curricula
- Open Textbook Library
- CK-12 [http://www.ck12.org]
- Saylor [http://saylor.org]
- Boundless [http://boundless.com]
- Connexions / OpenStax Library [http://cnx.org]
- Textbook Equity [http://textbookequity.org/]
- BC Campus [http://open.bccampus.ca]
- Wiki Books [http://en.wikibooks.org]
- Odell Education [http://odelleducation.com/]
- Cool4Ed [http://www.cool4ed.org/]
- Merlot [https://edtechbooks.org/-GA]
- OER Commons [https://www.oercommons.org/]
- Creative Commons Search
- Google Advanced Search*
- Google Advanced Image Search*
- Yahoo Image Search**
* Be sure to set usage rights to "free to use share or modify". ** Be sure to click the arrow in the top left and select "Labeled for Reuse" in the bottom left.
Text Content Providers
- Wikipedia - open encyclopedia
- Simple English Wikipedia [http://simple.wikipedia.org] - simplified encyclopedia
- Project Gutenberg [http://www.gutenberg.org] - public domain texts
- Wiki Source [http://en.wikisource.org] - source materials
- Wiki Quote [http://en.wikiquote.org] - quotations
Media Content Providers
- Wikimedia Commons [http://commons.wikimedia.org] - open media
- Digital Public Library of America [http://dp.la/] - public domain works
- LibriVox [http://librivox.org] - public domain audio books
- Photo Pin [http://photopin.com] - open photos from Flickr
- Internet Archive [https://archive.org] - public domain works
- U.S. Army [http://www.army.mil/media/] - public domain images
- Flickr - creative commons images
- Vimeo - creative commons videos
- Creative Commons Music - various creative commons music sites
- Jamendo [http://jamendo.com] - creative commons music
- Animal Photos [http://animalphotos.info] - animal photos
- Library of Congress [http://www.loc.gov/] - public domain works
- Internet Archive [https://archive.org] - public domain works
- U.S. Fish and Wildlife Digital Library [http://digitalmedia.fws.gov/] - public domain works (mostly)
These tools are not technically open educational resources, but they can be used to aide you in creating, remixing, and sharing open educational resources.
- Google Drive [http://drive.google.com] - write and create collaboratively
- Rewordify [http://rewordify.com] - simplify difficult texts
- Text Compactor [http://textcompactor.com] - summarize texts
- Simplish [http://www.simplish.org] - simplify and summarize texts
- Open Text Summarizer - summarizes nonfiction texts
When utilizing someone else's work in your own, you should be sure to attribute the work. In education, we generally use formatting guidelines from the American Psychological Association (APA), and you should cite works according to these guidelines if required for a research paper or publication. However, in most situations, a simpler citation that includes the work's title, author, license, and url will be appropriate. All work licensed under an open license will generally require you to properly attribute (cite) the resource in order to use it in your own work. Failure to properly cite one of these works if it is used in your own work is a violation of copyright. At minimum, you should attribute such works with the following information:
- What is the title of the work (e.g., name of article, picture, or song)?
- Who created the work?
- Where did you find the work (e.g., url)?
- What license is the work shared under (e.g., CC BY)?
As possible, you should also cite these works in such a way that it is clear to which portions of content the attribution refers and so that the attribution is prominent. For instance, if you include a Creative Commons image in a book you are writing, the attribution should be included as a caption under the image. When such attribution is not possible, including attributions in a works cited page is acceptable if it is clear to which content each reference belongs (e.g., providing page numbers).
- If there is no author mentioned, how do I cite the resource?
- Use the author of the website. If the website does not have a mentioned author, use the name of the website (e.g., "CK-12").
- What if there is no copyleft license or notice of public domain mentioned?
- Remember, just because no copyright symbol is present does not mean that the work is open (e.g., not every page of a Harry Potter book has a copyright symbol on it, but it is still copyrighted). Since everything is automatically copyrighted, you should generally assume that all work is copyrighted and should not treat it as an open resource without further investigation.
- May I use a copyrighted work if I properly cite the author?
- This depends on what you are using it for (see the discussion of fair use), but generally, you must have written permission to use it in any significant way.
- If something is marked as released under Creative Commons, but there is no specific license identified, which should I use?
- You should probably either use the most restrictive license (CC BY-NC-ND) or the most common license (CC BY). Use your best judgment.
- Can I modify or revise an openly licensed work?
- This depends on the license. In most cases, yes, but you may need to release your new work under the same license. The primary times when you cannot do this would be when the license prohibits derivative works (e.g., any CC BY-ND and CC BY-NC-ND).
- Can I use Royalty Free work?
- This is tricky. Royalty Free does not generally mean free as in libre (i.e. free to use for whatever). Rather, it typically means that you can use a work in a very specific way (e.g., print an image up to ten times) that will vary based upon the provider. So, royalty free is essentially just another way of saying copyrighted, but the material might be able to be used in some very limited manner without paying a fee.
- If something is copyrighted, does that mean I cannot ever use it?
- You can use it if you have the copyright holder's permission. You can always contact the owner and ask her/him if you can use it. Open resources are handy, simply because they make it easier for you to use materials without asking permission every time you want to use something.
Sharing Your Work
As the author of a creative work, you can release your it under an open license or into the public domain. All you need to do is place the Creative Commons license on your work or state that the work is in the public domain, and this allows others to know how they can use it. For example, by simply placing "CC BY 3.0" below a picture, you give anyone the right to use it for any purpose as long as they attribute you as the author.
Public Domain or an Open License?
As the author of a creative work, you should consider the benefits of different ways of sharing your content. In short, if you don't care how it's used but just want others to be free to use it, release it into the public domain. If you want to receive credit (be cited) when others use it, use CC BY 3.0. For a more detailed walkthrough of how you should release your content, follow the steps provided in the table below.
Workflow for Choosing a License
|1||Do you want to allow anyone anywhere to use the work however they want without giving you credit?||Public Domain||Go to Step 2|
|2||Do you want to make sure that anyone who uses your work also shares their work in the same way?||Go to Step 3||Go to Step 4|
|3||Do you want to prevent others from profiting from your work?||CC BY-NC-SA||CC BY-SA|
|4||Do you want to prevent people from changing your work?||Go to Step 5||CC BY|
|5||Do you want to prevent others from profiting from your work?||CC BY-NC-ND||CC BY-ND|
More details about the Creative Commons licenses may be found on the Creative Commons website.
Releasing your work under an open license is easy. Just place a statement somewhere on your work that states what license you are releasing it under. The Creative Commons site provides a wizard to create a statement and image for you, or here are a few more examples:
- This work is released under a CC BY 3.0 open license by [Your Name Here].
- This work is released into the public domain.
This chapter has provided an overview of copyright, public domain, fair use, and open licenses. With this knowledge, teachers should feel sufficiently knowledgeable to use copyright-restricted resources in a legal manner. They should also be able to find and use public domain and openly licensed resources, to properly cite them, and to release their own creations openly.
Suggested Citation(2021). Copyright and Open Licensing. In , , , , , , , & (Eds.), An Introduction to Open Education. EdTech Books. https://pm4id.org/open_education/copyright
CC BY: This work is released under a CC BY license, which means that you are free to do with it as you please as long as you properly attribute it.
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