Transitioning to OER: Step Two: Copyright Concerns

 Fair use is often claimed in education but less often understood. There are four factors to consider when determining if use of a work can be considered fair use under the law.

• A helpful tool for evaluating fair use in a specific situation based on the four factors is the Fair Use Evaluator.

 Materials are said to be in the public domain if they are not protected by copyright, trademark, or patent laws. You may use anything in the public domain without obtaining permission.

Materials fall into the public domain when:

Copyrightlaw.com states that materials may enter the public domain in the following ways:

• The duration of copyright in the work has expired — In the U.S., for example, the copyright in a book expires 70 years after the death of its author. The minimum duration of copyright protection as set out in the leading copyright treaty, the Berne Convention, is life-plus-fifty but many countries now have a life-plus-seventy duration as in the U.S. (See the section below on Public Domain in Other Countries.)
• The work was produced by the U.S. federal government — In the U.S., works produced by the federal government don't have copyright protection. However, a work produced by a consultant or freelancer to the government may have protection and the original copyright owner may transfer that copyright to the government. Note that in other countries, such as Canada, there is copyright protection in federal government works.
• The work isn't fixed in a tangible form — A work such as a speech, lecture or improvisational comedy routine that hasn't previously been written or recorded in any manner isn't protected by copyright and therefore is in the public domain.
• The work didn't include a proper copyright notice prior to 1 March 1989 — In the U.S., this doesn't apply to works created after 1 March 1989, when a copyright notice became no longer mandatory to protect a work. However, prior to that date, notice of copyright was necessary on all published works. Without this notice, the work went into the public domain. Most countries don't have a copyright notice requirement. Note that Berne member countries cannot have any requirements such as a copyright notice in order for authors to have copyright protection in their works — that's always automatic in Berne Convention countries.
• The work doesn't have sufficient originality — Examples of works that may not have sufficient originality to be eligible for protection by copyright include lists or tables with content from public documents or other common sources.

 Creative Commons is a global nonprofit organization that enables sharing and reuse of creativity and knowledge through the provision of free legal tools. Our legal tools help those who want to encourage reuse of their works by offering them for use under generous, standardized terms; those who want to make creative uses of works; and those who want to benefit from this symbiosis. Our vision is to help others realize the full potential of the internet. CC has affiliates all over the world who help ensure our licenses work internationally and who raise awareness of our work.

How do Copyright, OER, and Creative Commons work together?

Open educational resources, like all intellectual property, are subject to the laws of copyright. OER creators choose to share their work rather than reserve all of their rights for themselves, and Creative Commons has created tools that allow them to do this within the framework of current copyright laws. Creative Commons licenses are real, legal licenses that help creators retain copyright while allowing others to reuse, redistribute, revise, and remix their work.

• The creativecommons.org Licenses Page shows what the different license terms are in an easy-to read way.
• This page shows the best way to give attribution for a Creative Commons licensed work.
• The Choose a License Tool provides an easy way for creators to define the terms on which others may use their work.

Resources from the public domain (works for which copyright has expired), fair use (such as using small parts of works for educational purposes), or library resources (when you are able to direct your students to use a library resource instead of having them buy it) may also be used as an alternative to proprietary materials.

 Attribution

This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.

 Attribution Share-Alike

This license lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. This license is often compared to “copyleft” free and open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.

 Attribution Non-Commercial

This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

 Attribution No-Derivatives

This license lets others reuse the work for any purpose, including commercially; however, it cannot be shared with others in adapted form, and credit must be provided to you.

 Attribution Non-Commercial Share-Alike

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.

 Attribution Non-Commercial No-Derivatives

This license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially.

• Creative Commons Licenses Page

• Creative Commons Home Page