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School Librarians as OER Curators: A Framework to Guide Practice: About Licensing

Module 2

About Licensing

This module is intended to support curators and curriculum developers—including school librarians and classroom teachers—in determining the legal ways that they can use digital resources created by others in their work.

This module only concerns U.S. copyright law. Please note that the context of your particular use matters greatly, and the information included below does not identify all legal issues that may arise from your use of materials found online.

What Is Copyright?

Copyright is a form of legal protection that affords the copyright owner the exclusive rights to, among other things:

  1. Reproduce (copy)

  2. Distribute

  3. Publicly perform

  4. Publicly display

  5. Create “derivative works” (e.g., translations, revisions, other modifications)

Without permission from the copyright owner, or an applicable exception such as fair use under the Copyright Act, it is a violation of copyright law to exercise any of the copyright owner's exclusive rights.


What is Fair Use?

Fair use is a limitation on a copyright owner’s exclusive rights, set forth in the Copyright Act.  See 17 U.S.C. §107. If a use is a legitimate fair use, permission from the copyright owner is not needed.

It can be difficult to determine whether a given use is a fair use. Fair use evaluations depend greatly on the facts of your particular situation. Claiming fair use involves risks, and fair use law can be very complex. Exercising fair use is a right, not an obligation. In evaluating whether a given use is a fair use, the Copyright Act sets forth the following four factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  2. the nature of the copyrighted work;

  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

  4. the effect of the use upon the potential market for or value of the copyrighted work.


Transformative Use

Transformative use is an addition to fair use law. A  work may be transformative, and thus a fair use, even if all four of the factors above weigh against fair use. A work is transformative if it uses the original work in new or unexpected ways.


Create a Fair Use Evaluation

You can use the ALA Fair Use Evaluator Tool to create, collect, and archive the information you might need to support a fair use evaluation. The tool will walk you through a step by step form, and provide you with a time-stamped, PDF document for your records. You can see an example evaluation document here: http://librarycopyright.net/resources/fairuse/example.pdf


What is the “Classroom Use Exemption”?

The Classroom Use Exemption (17 U.S.C. §110(1)) applies in a narrow range of situations. To qualify for this exemption, you must be:

  • in a classroom ("or similar place devoted to instruction"),

  • there in person, engaged in face-to-face teaching activities, and

  • at a nonprofit educational institution.

If you qualify for the exemption, you may perform or display copyrighted works – but not exercise any other exclusive rights of the copyright owner (e.g., this exemption does not entitle you to copy, distribute or create derivative works). In the case of a motion picture or other audiovisual work, you may only perform or display lawfully-made copies.

By way of example, if you qualify for the classroom use exemption, you can, without seeking permission, without giving anyone payment, and without having to deal with the complications of fair use:

  • Play movies and music for your students, at any length (only from legitimate copies).

  • Show students images, or original artworks.

  • Lead students in performances of musical compositions, scenes from plays, and the like.

Even if you qualify for the classroom use exemption, it does not apply to:

  • Online activities of any kind

  • Making or distributing copies of any kind (e.g., handing out readings in class)


What is the TEACH Act?

The TEACH Act is codified at 17 U.S.C. 110(2). It provides that it is not copyright infringement for teachers and students at an accredited, nonprofit educational institution to transmit certain performances and displays of copyrighted works as part of a course if certain conditions are met.  If these conditions are not or cannot be met, use of the material will have to qualify as  fair use or permission from the copyright holder(s) must be obtained. The requirements of the TEACH Act are onerous, and require the cooperation of your educational institution, including the IT department. Implementing TEACH can be very difficult because of its complexity and the many detailed requirements for instructors, technologists, and institutions.

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“What is Copyright?” is a derivative of text in the Permissions Guide for Educators, by ISKME, licensed under CC BY 4.0.

What Is Open Licensing?

Open licenses support creators who want to share their works freely, and allow others more flexibility to reuse and share the creators’ works. OER are typically licensed under an open licensing system, with the most popular being the Creative Commons (CC) licensing system. Specific benefits include:

  1. Allowing others to distribute the work freely, which in turn promotes wider circulation than if an individual or group retained the exclusive right to distribute;

  2. Reducing or eliminating the need for others to ask for permission to use or share the work, which can be time consuming, especially if the work has many authors;

  3. Encouraging others to continuously improve and add value to the work; and

  4. Encouraging others to create new works based on the original work - e.g. translations, adaptations, or works with a different scope or focus.

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Text is a derivative of Guide to Open Licensing, by Open Knowledge International, licensed under CC BY 4.0

What Is the Public Domain?

Public domain works are not restricted by copyright, and do not require a license or fee to use. Public domain works may be used without any restrictions--they may be downloaded, shared, edited, remixed, repurposed, etc.

Works in the public domain are those whose copyright rights have expired, have been forfeited, or are inapplicable. There are three main categories of public domain works:

  1. Works that automatically enter the public domain upon creation, because they are not copyrightable. For example, book titles, short phrases and slogans, ideas and facts, processes and systems, and certain government documents;

  2. Works that have been assigned to the public domain by their creators; and

  3. Works that have entered the public domain because the copyright on them has expired in the U.S.

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"What is the Public Domain" is a derivative of text in the
Permissions Guide for Educators, by ISKME, licensed under CC BY 4.0.

What Are Creative Commons Licenses?

Creative Commons licenses allow creators to retain certain rights while waiving some rights. All Creative Commons Licenses require attribution to the original creator(s). The creator can add on other restrictions such as non-commercial uses only and no derivative works. The licenses include:

CC BY Icon

CC BY - Attribution to the author/creator required.

CC By SA icon

CC BY-SA - Attribution required, and you agree “share alike”— which means that you must license new derivative versions of the resource that you create under CC BY-SA as well.

CC BY NC Icon

CC BY-NC - Attribution required; non-commercial use only. Derivatives of the original permitted.

CC BY ND Icon

CC BY-ND - Attribution required; no derivative works permitted.

CC By NC SA Icon

CC BY-NC-SA - This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms.

CC BY NC ND Icon

CC BY-NC-ND - This license is the most restrictive of the six main licenses. It allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.

Public Domain Icon

CC0 - (Creative Commons 0) In contrast to the above six CC licenses that allow creators to choose from a range of permissions while retaining their copyright, CC0 empowers another choice altogether. CCO, also known as the “no rights reserved” alternative to Creative Commons licenses, is simply a way to indicate that your resource is in the public domain. In short, CC0 allows creators to opt out of copyright and database protection.

Test Your Knowledge: License Matching Activity 

Use this interactive license matching game to test your knowledge of Creative Commons licenses.

The Six Creative Commons Licenses 

Watch this video from Creative Commons for a brief overview of its licenses and what they mean.

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“What Are Creative Commons Licenses?” is a derivative of text within the Permissions Guide for Educators, by ISKME, licensed under CC BY 4.0.  “CCO (Creative Commons 0)” is a derivative of information from the Creative Commons website, used under CC BY 4.0 International License. Creative Commons Icons are from the Creative Commons website

Identifying Use Permissions


Follow this simplified checklist to determine the use permissions of the resources that you find online:

❏  Look carefully at the resource you want to use and any information surrounding the resource to identify licensing information.

❏  Also review the “About” and “terms of use” pages of the resource’s website for permissions and licensing information.

❏  If you cannot find a symbol or statement of the license or the permissions for use, the copyright owner is probably retaining all of the exclusive rights.

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The checklist above is a derivative of text within the Permissions Guide for Educators, by ISKME, licensed under CC BY 4.0.

Giving Attribution

How do you know which license to choose when you're ready to re-share your work? The resources below will help you select the right open license for your work, whether it's an original creation authored solely by you, or a remix of other authors' works.

Which License Do I Choose? 

Creative Commons License Chooser (Tool)

This interactive tool from Creative Commons will help you select the right Creative license for your work, based on your answers to questions about how you want your work to be shared and used.


Wanna Work Together? 
(Short Video)

When you create something, you automatically own the copyright to that creative work. But sometimes full copyright is too restrictive. What if you want your work to be freely shared, and built upon by the world? This video explains how to choose the right Creative Commons license for your work.

 

Turning a Resource into OER (Short Video)

Sometimes, creators want to start with resources that already exist, and remix them into new OER. This video walks through ten steps you’ll need to turn resources into OER—from finding out who originally created the resource, to selecting a Creative Commons license that tells the public how you want your new resource to be used.

 

Creating OER and Combining Licenses (Short Video)

When you curate course materials or collections that include OER, you'll need to consider how those resources may be used by others based on the copyright permissions that are allowed. If you are curating a resource or collection with content from various sources, you'll also need to consider how the different licenses for each piece of content should be integrated into your final resource or collection. Watch this video to help guide you through these considerations.

Scenario

OER Attribution Example

How Do I Give Attribution? - Example Scenarios

You would like to share an open resource that has been authored by someone else, and you want to share it  “as is” - without making changes to it. Spokane Washington - Spokane Lower Falls photo by Bill Badzo, is licensed under CC BY-NC-SA .
You would like to share a resource that you edited (i.e., you’ve made a derivative of the original open resource). A Historical Exploration of the Spokane Indians, by [your name], is licensed CC BY 4.0,  and is a derivative of Exploring the Pacific Northwest Prior to Statehood, by Leslie Heffernan and Morgen Larsen, licensed under CC BY 4.0.

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Video descriptions under 'Which License Do I Choose?” are from
Ontario Colleges OER Toolkit, by Ontario Colleges Library Service and ISKME,  originally licensed under CC BY-NC 4.0, and used under CC BY 4.0  for this document, with permission from Ontario Colleges Library Service

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