OER Toolkit – Licensing
Open Educational Resources (OER) is based on a set of permissions that enable the use and modification of educational content. In this section, one will gain knowledge about the shift from traditional copyright to open licenses, and how to apply open licenses to works created, remixed, and shared. Local educational service units can also provide support on issues related to licensing and copyright.
What is copyright?
Copyright is a form of legal protection that affords the copyright owner the exclusive rights to, among other things:
- Reproduce (copy)
- Publicly perform
- Publicly display
- 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 a copyright license?
A copyright license is a grant of permission to use certain copyright rights. Copyright licenses often have specific limitations that are outlined. For example, they may:
- Be limited in time
- Contain geographical restrictions
- Only allow for educational uses
- Only grant permission to use some of the copyright rights (for example, a license may grant permission to download and distribute a work, but not the right to create derivative works)
Creative Commons licenses are copyright licenses. Many works in the Nebraska OER hub are Creative Commons licensed. There are six main Creative Commons licenses. All require that any uses include attribution to the original author; some permit only noncommercial uses; some do not allow the creation of derivative works. When evaluating the permitted scope of uses, read all copyright licenses closely. Using a work in a manner that exceeds the scope of permissions granted in a license is copyright infringement. When licensing new work or remixed work that is shared on the Nebraska’s OER Commons hub, it is recommended to license the work as either “Attribution-Noncommercial-Share Alike,” which is universally noted as “CC BY-NC-SA” or “Attribution-Noncommercial-No Derivatives,” which is universally noted as “CC BY-NC-ND.”
National and Local Copyright Policy
Under the Copyright Act of The United States, the author of the work is generally the owner of the copyright. However, if a work is created within the scope of the author’s employment, the employer holds the copyright unless there is an agreement to the contrary.
Check your school district’s copyright policies and intellectual property policies. Collective agreements or employment contracts can also affect copyright ownership. Contact your administration if you need more information, since they may be able to direct you to relevant policies and contacts. See the sample OER Policy in the next section drafted by KSB School Law.
Works in the Public Domain are released from copyright protection, due to expiration of their copyright or by designation by the copyright holder. Also, some works 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. Public Domain content may be used in any way by anyone.
Linking to Copyrighted Materials
It is not a violation of copyright to link to copyrighted material, nor is it necessary to obtain permission from the copyright holder to, for example, link to a YouTube video in a presentation.
The Fair Use Doctrine
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 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:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Follow this simplified list 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.
If you cannot find a symbol or statement of the license or the permissions for use, the copyright owner is probably retaining all of their exclusive rights.
Use the guidelines below to identify whether you need to seek permission from the copyright holder when repurposing existing materials as OER. You may also contact your educational service unit for help on determining whether your intended use falls within a copyright exception or license, or whether permission is required.
- You DO NOT need to ask permission if:
- 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 of 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.
- 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).
Attribution: Text is a derivative of Permissions Guide for Educators, by ISKME licensed under CC BY, 4.0.
These are the four Creative Commons licensing elements for consideration that are combined into six possible licenses.
Attribution (BY) As a creator of OER, you can choose the conditions of reuse and modification by selecting one or more of the restrictions listed below: You let others copy, distribute, display, and perform your copyrighted work — and derivative works based upon it — but only if they give credit the way you request.
Non-commercial (NC) You let others copy, distribute, display, and perform your work — and derivative works based upon it — but for non-commercial purposes only.
Share Alike (SA) You allow others to distribute derivative works only under a license identical to the license that governs your work.
No Derivative Works (ND) You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.
Attribution: Text a derivative of definitions provided in A Basic Guide to Open Educational Resources, by Commonwealth of Learning, licensed under CC BY-SA 4.0
Creative Commons Licensing Considerations
- Remember the license may not be revoked. Once you apply a CC license to your material, anyone who receives it may rely on that license for as long as the material is protected by copyright and similar rights, even if you later stop distributing it.
Type of material:
- Make sure the material is appropriate for CC licensing. CC licenses are appropriate for all types of content you want to share publicly, except software and hardware.
- Specify precisely what it is you are licensing. Any given work has multiple elements; e.g., text, images, music. Make sure to clearly mark or indicate in a notice which of those are covered by the license.
Nature and adequacy of rights:
- Make sure the material is subject to copyright or similar rights. CC licenses are operative only where copyright, sui generis database rights, or other rights closely related to copyright come into play. They should not be applied to material in the public domain.
- Seek permission. If the material includes rights held by others, make sure to get permission to sub-license those rights under the CC license. If you created the material in the scope of your employment or as a work-for-hire, you may not be the holder of the rights and may need to get permission before applying a CC license.
- Indicate rights not covered by the license. Prominently mark or indicate in a notice any rights held by third parties, such as publicity or trademark rights. This includes any content you used under exceptions or limitations to copyright, and any third party content used under another license (even if it is the same CC license as you applied).
Type of license:
- Think about how you want the material to be used. Consider what you hope to achieve by sharing your work when determining which of the six CC licenses to apply.
- Consider any obligations that may affect what type of license you apply. Think about any obligations you have, such as licensing requirements from a funding source, employment agreement, or limitations on your ability to use a CC license.
- Review the sample OER Policy for recommended licensing for resources added to the Nebraska OER hub.
- You can use the Creative Commons online tool which will help guide you through choosing a license by answering simple questions related to the resource you would like to license.
Nebraska Sample Policy drafted by KSB School Law
For School Districts (Public or Private)
Participation in OER. Collaboration through Open Educational Resources (OER) is beneficial in many ways for the district and for the education community in Nebraska. The Educational Service Unit Coordinating Council (ESUCC) and the Nebraska Department of Education (NDE) have provided a platform to share educational materials with OER designation which can be reviewed and aligned to Nebraska’s state standards. The board authorizes the superintendent to allow staff members to participate in OER, at the superintendent’s discretion, both by incorporating OER materials into the curriculum adopted by the board and by sharing materials and resources owned by the district. Those materials and resources include works made for hire by district employees. Unless the superintendent or superintendent’s designee(s) determines otherwise, materials owned by the district may be shared to the ESUCC-NDE OER Collection(s) with the Creative Commons Attribution License designation of either (1) “Attribution-Noncommercial-Share Alike,” which is universally noted as “CC BY-NC-SA”; or (2) “Attribution-Noncommercial-No Derivatives,” which is universally noted as “CC BY-NC-ND.”
Participation in OER. Collaboration through Open Educational Resources (OER) is beneficial in many ways for the ESU’s member districts and for the education community in Nebraska. The Educational Service Unit Coordinating Council (ESUCC) and the Nebraska Department of Education (NDE) have provided a platform to share educational materials with OER designation which can be reviewed and aligned to Nebraska’s state standards. The board authorizes the administrator to allow staff members to participate in OER, at the administrator’s discretion, both by incorporating OER materials into the services provided by the ESU to member districts and by sharing materials and resources owned by the ESU. Those materials and resources include works made for hire by ESU employees. Unless the administrator or administrator’s designee(s) determines otherwise, materials owned by the ESU may be shared to the ESUCC-NDE OER Collection(s) with the Creative Commons Attribution License designation of either (1) “Attribution-Noncommercial-Share Alike,” which is universally noted as “CC BY-NC-SA”; or (2) “Attribution-Noncommercial-No Derivatives,” which is universally noted as “CC BY-NC-ND.”