Open Educational Resources (OER)

Faculty guide on Open Educational Resources

Creative Commons

Creative Commons licensing supports the body of work that is available to the public for free or the purpose of use, adapting, changing, and re-mixing. Creative Commons is the nonprofit organization that works to create the legal tools and standardized policies to support creative and freely available publications.

Copyright and OER for users

Introduction to OER, Copyright, and Open Access Publishing

U.S. Copyright law exists to protect the rights of content creators so that they have control over the reproduction and distribution of their works.  It is assumed that because these protections allow artists and authors to assess fees for their works the protections in turn encourage content creators to do just that: create content. 

Because of their open and free nature, OER may have some specialized use licensing that differs slightly from traditional copyright agreements. 

When using OER, it is important to carefully read and take note of any licensing agreements which apply to the resource.  Depending on the where you find the resource the specific licensing agreement may be found somewhere on the work, in the metadata associated with the work, or in a Terms of Service type of agreement on the webpage that hosts the item.  

If you cannot find a specific copyright statement on a work, you must assume that it is fully protected by copyright.  If a work is protected by copyright, you may still be able to argue that your use of the work is "Fair Use" (see below). 


Types of Open Licensing

Open Access Publishing

Many Open Educational Resources are made available thanks to Open Access Publishing.  The concept of Open Access publishing was developed in Budapest and Berlin in the early 2000s.  Its goal is to offer unrestricted online access to scholarly research, primarily intended for display scholarly journal articles.  Additionally, the level of access should be such that users are able to "copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship." (read the full Budapest Open Access Initiative here). 

Open Access licensing can be separated into the two categories described below: 

  • Gratis:  represented by the green open access symbol (Free to read). Works that are open access gratis licensed are free to access. The authors or creators maintain all the other rights for redistribution, derivative works, public display, etc. but allow access to anyone for free. 
  • Libre: represented by the orange open access symbol (open access publication – free to read).  Works that are open access libre licensed are free to access online and additionally have some reuse rights.  It is important to read the license agreement on individual resources to be sure of what reuse rights are granted and which ones are withheld. 
    • Many libre licensed resources rely on Creative Commons licensing. A full description of Creative Commons licenses available can be found here

Other Open or Copyright Free Resources

Certain resources are not protected by copyright at all and are freely available and editable as such.  These include:

  • formerly copyrighted works whose copyright protection has lapsed or expired (ex. public domain works)
  • works created by the United States government (ex. federal judicial decisions, statutes, speeches by employees in the course of their employment, census reports, etc.)
  • works not deemed "creative" enough to be copyright protected (ex. most data sets-however it is worth noting that analysis of these datasets can be copyright protected including charts and graphs).

Take Aways

With the wealth of free resources available to educators, it is well worth taking the time to find good quality free resources that fulfill the needs of you and your students. It is important to note however that with the proliferation of the internet a number of pirated resources are widely available for free.  These are not the same as Open Access, Public Domain, or copyright free works.  It is therefore necessary to do your due diligence to determine the copyright status of any resource that you intend to distribute, edit, reproduce, or otherwise use.  The best policy is to assume that a resource is fully copyright protected unless you have a concrete statement from the rightsholder which tells you otherwise.

U.S. Copyright law includes provisions for "Fair Use" which allows certain rights for reuse at no cost for copyrighted materials as long as the material and use meet certain conditions.  Fair Use when reasonably applied can be a powerful tool for educators.   For more on Fair Use see here.

Copyright and OER for Creators

Introduction to Copyright and OER

U.S. Copyright law exists to protect the rights of content creators so that they have control over the reproduction and distribution of their works.  It is assumed that because these protections allow artists and authors to assess fees for their works the protections in turn encourage content creators to do just that: create content. 

Because of their open and free nature, OER may have some specialized use licensing that differs slightly from traditional copyright agreements. 

If you cannot find a specific copyright statement on a work, you must assume that it is fully protected by copyright.  If a work is protected by copyright, you may still be able to argue that your use of the work is "Fair Use" (see below). 

Some key concepts to keep in mind when creating OER are: 

  • Any work that is created and fixed in a tangible form that is perceptible is automatically protected by copyright.  
    • Copyright protections exist for works from the moment they are created, but registration with the copyright office is necessary in order to bring an infringement lawsuit for a U.S. work. 
    • Copyright protections apply for both published and unpublished works. 
    • Some works are not copyrightable, for instance, data sets are not copyrightable however analysis of such data sets (like charts or graphs) are. 
    • Copyright protections expire. As a general rule of thumb, works in the United States pass into the public domain and are no longer protected by copyright laws 70 years after the death of author. If you think a work may be public domain, it is important to do your due diligence to discover if the copyrights have been renewed. 
  • Authors and artists can waive their copy rights to allow others to access, distribute, edit, enhance, etc., their creations for free.  
    • If these rights are not explicitly listed, they have not been waived. Creators can choose to waive any or all of their copy rights.  
  • Some special licensing agreements exist which allow creators to waive some or all of their rights without having to have extensive knowledge of copyright law.  
    • The most widely spread licensing agreements of this type are Creative Commons licensing. 
    • Creative Commons licensing allows creators to have some control over their work while still sharing their work with a wider range of permissions.  
      • Works licensed under Creative Commons may be distributable, editable, accessible, etc. for free. There are differently levels of Creative Commons licensing and the level that is chosen is decided by the creator.  For example, a creator may allow you to use his/her work for free, but only with proper attribution.  Creators may also limit whether you can use their works for commercial gain and whether you can edit the original.
  • Copyrighted works can still be used without permissions if the use is found to be "Fair Use".  
    • It may not be necessary to purchase permissions for copyrighted works depending the four factors of Fair Use:
      • the Purpose of how you are using the work: courts are more likely to grant Fair Use designation to educational and non-commercial uses.
      • the Nature of the work itself: uses works deemed to be creative or artistic are less likely to be found to be Fair Use. Works of fiction are more difficult to argue Fair Use for than works of non-fiction.
      •  the Quantity of the work you are using: courts are more likely to deem Fair Use those uses which limit the amount of the copyrighted work that is used to the absolute minimum that is necessary.
      • and the Effect that your use will have on the market value of the original work: it is unlikely that you will be granted Fair Use designation if your use decreases the marketable value of the original work, for instance if it would be a substitute for the whole work. 
  • Fair Use is a powerful tool for educators, but must be accompanied by thoughtful analysis of the above four factors. For more on Fair Use, see the infographic below.

Fair Use: A Simple Guide

Disclaimer: 

The information provided here is not legal advice and is not to be acted on as such, it may not be current and is subject to change without notice. 

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