Open Educational Resources (OER)

Definitions

• What constitutes a “work”: things that can be covered by copyright, original creations that can be fixed in a tangible form as a means of expression. Size and format do not matter. The “work” is something that can be saved in a fixed format that can be accessed at a later date

• A “collective work”: a group of works pulled together, may be multi-authored or created by a group. For instance, faculty compiled OER resources housed in Canvas commons can be seen as a collective work

• A “derivative work”: starting with one type or work and then building on it or changing it into another; this can be translating it into a new language, taking a lecture and turning it into a tutorial or module; remixes and adaptations

• A ”Non-commercial” work: Non-commercial is about the intent of the use of the work, not the user. OER can be printed on demand or sold at the college bookstore but the cost of the printed item is purely to cover the cost of printing, binding and putting on the shelf; these items can basically cover overhead and not add additional charges to the student. 

The Difference between Free Resources and Open Resources

Free Resources masks transfer of costs: items purchased by the school or library, money comes from student tuition, taxes, etc. For instance, library e-books are free but only a limited number of users are allowed to access it at one time, and when downloaded will only be accessible for a few days.

"Open Resources" are unfettered, truly free items with no restrictions with the number or users or the time allowed to use resources.

"Fair Use" versus "Creative Commons": Fair Use applies to items that are under copyright and Creative Commons Licenses are nearly always open and do not replace the original copyright license. These things can overlap and seems to be a very complicated issue.

Fair use resources from Stanford: https://fairuse.stanford.edu/overview/fair-use/

+  4 factors of fair use: https://fairuse.stanford.edu/overview/fair-use/four-factors/

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:

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

2. there in person, engaged in face-to-face teaching activities, and

3. 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 (e.g., a class website, any activities that are not face-to-face and in-person)

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

https://www.oercommons.org/authoring/5800-permissions-guide-for-educators/view

Determining Permissions

Look carefully at the resource you want to use and any information surrounding the resource; also review the "about" and "terms of use" pages of the resource's website for permissions information.  

Can you find a copyright license or other form of permission that applies to the resource? 

Can you determine if the resource falls into one of the categories below?

Determine if the Resource is in the Public Domain

The mere fact that a resource is made available in a collection of public domain materials, or is on a list of public domain materials is insufficient; you should independently determine whether or not a resource is in the public domain by conducting an appropriate analysis of its copyright status. 

Examine the resource and determine whether it is in the public domain. It can often be difficult to determine with certainty whether a given work is in the public domain. Public domain status is likely (for copyrighted works other than sound recordings) for the following situations:

• The resource was published in the United States before 1923 

• The resource was published before 1964 and the copyright registration was not renewed

• The resource was published without a valid copyright notice prior to 1977

Determine if the Resource is a U.S. Government Work

Examine the resource to determine if it is a U.S. government work prepared by an officer or employee as part of that person's official duties. These works are free to use without restrictions. This does not apply to works created by U.S. state governments, or the governments of other jurisdictions – such works may be protected by copyright.

U.S. government records and works often contain or include within them copyrighted works, so examine the resource and read the terms of use carefully. For example:

•  A U.S. federal court opinion written by a U.S. federal judge may contain copyrighted materials, such as photographs. The fact that such a photograph appears in a judicial opinion does not make it a U.S. government work; it is still subject to copyright protection. 

• The Congressional Record is a U.S. government work, but it may contain documents and other materials that remain subject to copyright protection.

• A sound recording or photograph that appears in the collection of the Library of Congress or National Archives is not necessarily a U.S. government work. The photograph may not have been prepared by an officer or employee of the United States government as part of that person’s official duties. 

Determine if the Resource is Creative Commons Licensed

Resources that are Creative Commons (CC) licensed are free to use with certain restrictions depending on the specific license. 

Look for the following licensing terms:

• CC0 - In general, you may treat the resource as if it were in the public domain.                         

• CC BY - Attribution to the author/creator required.      

• CC BY-SA - Attribution required, and you agree to license new derivative versions of the resource that you create under CC BY-SA as well.

• CC BY-NC - Attribution required; non-commercial use only; commercial use requires a separate, negotiated license.

• CC BY-ND - Attribution required; no derivative works permitted; creation of derivative works requires a separate, negotiated license. 

Read the license carefully and follow its terms. Failure to abide by the restrictions in a Creative Commons or other license is copyright infringement. Outside of CC0, all CC licenses require attribution--meaning, if you use the resource as part of your teaching, you must give credit to the original author or creator. For guidance on how to attribute properly, see: http://wiki.creativecommons.org/Best_practices_for_attribution.

Determine if the Resource Has Another License

Look carefully to identify terms of the license and comply with its restrictions.

If your intended use of the material is not permitted by the license, and does not fall within a copyright exception or limitation (such as fair use), contact the rights owner(s) for permission.

Attribution 

"Permissions Guide for Educators" by OER Commons is licensed under CC BY-NC-SA 4.0 / A derivative from the original work

1. Determine Whether You Need to Ask for Permission.

You do not need to ask permission if:

• The resource is in the public domain. See UC Berkeley's Public Domain Handbook to help determine if the work is in the public domain. 

• It is a U.S. government work that was prepared by an officer or employee as part of that person's official duties.

• Your intended use falls within a copyright exception or limitation (such as fair use).

• The way that you want to use the resource is in compliance with the terms a copyright license that applies to you (i.e., you already have permission in this case).

You do need to ask permission if:

• You wish to use a resource that is protected by copyright, and your intended use would be infringing copyright law if you were absent permission from the rights owner. 

• You wish to use a resource in a way that is beyond the scope of the permission granted to users in an applicable copyright license.

You should consider asking for permission if:

• You are uncertain about whether your intended use is permitted by an applicable copyright license.

• You are uncertain about whether a work is protected by copyright.

• You are uncertain about whether your intended use falls within a copyright exception or limitation (such as fair use).

2. Ask for Permission.

Work through the following steps when asking a rights owner for permission:

a. Identify the owner.

Sometimes identifying the owner is easy – if the work contains a copyright notice that identifies the owner, you can simply contact the owner and ask for permission. Sometimes, identifying the owner can be more challenging – for example, companies change ownership, owners are deceased, and the like. Sometimes a diligent search of the copyright records can reveal who owns rights in a work.

Many copyrighted works have more than one owner, each with separate rights in the works. You may or may not need permission from each owner, depending on which rights you need to license. For example, if you want to use recorded music, you will generally need to obtain permission from:

• The record company, which owns the sound recording copyright

• The music publisher, who owns a copyright in the musical composition

• The artists themselves (or their estates)

On the other hand, if you merely want to publicly perform the musical composition, you would not need permission for the sound recording. Each industry has its own customs and practices regarding copyright licensing and permissions; be sure to research carefully to determine that you have identified all owners of the rights you need, and that you have identified them correctly.

b. Identify the rights you need.

Be clear about the uses you intend to make, and negotiate with the rights owner(s) for those rights. 

• Do you need only the right to reproduce? 

• Do you want to modify the work? 

• Do you want to publicly perform or publicly display the work? 

• Do you need exclusive or nonexclusive rights? 

• Will you need the rights forever, or just for a limited term of years? 

• Will you need the right to post the work on the internet, adapt the work into a film? 

• Will you need worldwide rights, or just U.S. rights? 

c. Compile your message.

Craft a message to the owner of the resource, or to the person responsible for the permissions agreements related to the resource. Include any information about the rights you would like to secure, how you would like to use and share the resource, and what parties the agreement is between (e.g., between you and the publisher, the publisher and the public at large, etc.). A sample letter to rights holders is provided below.

Dear [insert name if you can get it],

I am writing on behalf of the Primary Source Project. We are an initiative comprised of teacher leaders to create K-12 lessons that embed informational texts, or “primary sources,” in alignment with new education standards known as the Common Core State Standards. 

The overarching aim of our project is to offer lessons and primary sources that support students in developing the skills called for in the Common Core State Standards, including close reading of primary source texts, critical thinking, and problem solving. The lessons developed as part of the project will be freely available for access online through a digital library.

In order for your work to be included in our online collection, we would like to ask you to license your work under a Creative Commons license. Such a license will make it possible for other teachers to make important uses of your work, and to further share those uses with others. Creative Commons offers six licensing options (https://creativecommons.org/licenses/), which allow licensors to choose (1) whether or not to allow derivative works; (2) whether or not to allow commercial uses; and (3) whether or not derivative works, if allowed, must be licensed pursuant to the same terms as the original work (“share-alike”). All Creative Commons licenses require attribution.

Our project encourages licensors to choose a Creative Commons Attribution (CC BY) license from among those options presented. It is our position that this option provides an educational user with the greatest degree of freedom while at the same time preserving and extending an author’s original authorship in derivative works. 

Thank you very much for your time and attention to this matter. We look forward to discussing with you how the Work can be included in our exciting new educational project.

3. Negotiate Terms and Payment if Needed.

Rights owners may respond to your request with their own licensing terms, either formally in the form of an agreement  that they've constructed, or informally in the form of an email text. They may, for example, indicate that you or your users are welcome to include the resource in your collection, but that no derivative works may be made. Many for-profit rights owners may be uncomfortable licensing the right to create derivative works of their material to the public. Thus, you may have better luck negotiating such rights for a specific project. Alternatively, if derivative work rights are important to you, it may be most efficient to start with nonprofit rights owners, particularly those in the education industry, as they are most likely to be familiar with, and supportive of, open access principles.

Rights owners may or may not require a fee for permission. Fees often vary based on the size of the audience your work will reach, whether the use is commercial or noncommercial, the number and kind of rights you wish to license, and the like. 

4. Get Your Permission Agreement in Writing.

Obtain a written copyright license that clearly describes the scope of permission.

Sometimes, in addition to getting permission for yourself, you may want to get permission for the public generally. Below is an example of a permissions agreement to rights owners asking them to grant a Creative Commons license to the public. 

Owner of the Work: 

Owner Address and Contact:

Title of the Work: 

Description of the Work:

Year of first publication of the Work: 

Creator(s) of the Work, and any others designated to receive attribution: 

URI or hyperlink to the Work: 

Preferred form of copyright notice/marking:

I, the rights owner for the Work(s) set forth above, hereby license the Work(s) pursuant to the following Creative Commons License (please initial only one option):

__ Creative Commons Attribution-ShareAlike (CC BY-SA), the full text of which is available online at https://creativecommons.org/licenses/by-sa/4.0/legalcode.

__Creative Commons Attribution-NonCommercial-ShareAlike (CC BY-NC-SA), the full text of which is available online at https://creativecommons.org/licenses/by-nc-sa/4.0/legalcode

__Other [fill in the blank]:

I further authorize the [your name or name of your institution] to create, publish and distribute marked copies of the Work(s) reflecting the CC license terms I have selected in accordance with Creative Commons marking guidelines (http://wiki.creativecommons.org/Marking_your_work_with_a_CC_license), or in any other reasonable manner.

I represent and warrant that I am the copyright owner of the Work(s), and/or that I am authorized to act on behalf of the copyright owner of the Work(s), and that the Work(s) are hereby licensed pursuant to the above-noted Creative Commons license.

Signature:        

Name:              

Date:               

Please complete, sign, and date this form and return original signed copy to:

Institution/Individual Name:

Address:

Phone/Fax: 

Email:     

Reference Materials

• Stanford University's introduction to getting permission.

Attribution "Permissions Guide for Educators" by OER Commons is licensed under CC BY-NC-SA 4.0 / A derivative from the original work

Fair Use versus Creative Commons

Fair Use applies to items that are under copyright and Creative Commons Licenses are nearly always open and do not replace the original copyright license. These things can overlap and seems to be a very complicated issue.

It can be difficult to determine whether a given use is a fair use. Fair use evaluations are highly fact-specific, and 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 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; and

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

Create a Fair Use Evaluation 

You can use the ALA Fair Use Evaluator Tool to create collect, organize & archive the information you might need to support a fair use evaluation. This wizard 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

Fair use resources from Stanford: https://fairuse.stanford.edu/overview/fair-use/

+  4 factors of fair use: https://fairuse.stanford.edu/overview/fair-use/four-factors/

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:

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

2. there in person, engaged in face-to-face teaching activities, and

3. 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 (e.g., a class website, any activities that are not face-to-face and in-person)

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

For more information see OER Commons Permissions Guide for Educators

Attribution "Permissions Guide for Educators" by OER Commons is licensed under CC BY-NC-SA 4.0​ / A derivative from the original work

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Open Licenses

Helpful License Resources

CC Licensing

Creative Commons Licenses

Choosing a CC License

Creative Commons FAQ

What is an adaptation

Creative Commons Certificate:

• https://certificates.creativecommons.org/

• https://certificates.creativecommons.org/about/certificate-resources-cc-by/

Open Licensing over Smoothies and TV Dinners

Wikipedia: Derivative work (adaptation)

Fair use resources from Stanford

+  4 factors of fair use

Center for Media and Social Impact (CMSI)

article from the Journal of Copyright in Education and Librarianship

Jennryn Wetzler wrote this article to help the State Dept. with “behavior change”

IP Rights Lawsuit Case

California Community Colleges require CC-BY attribution for Chancellor’s Office Grants & Contracts