Open Educational Resources

Copyright law gives the creator of copyrighted works exclusive rights to

• reproduce the work in copies (e.g., as photocopies or online),
• distribute copies of the work;
• prepare translations and other derivative works,
• perform or display the work publicly;
• authorize others to exercise any of these rights.
• Scholarly journals typically ask authors to sign a publication agreement or a copyright transfer agreement. These documents transfer ownership of copyright to the publisher and determine the uses an author will be able to make of his/her work in the future.

Note: If an author transfers ownership of the copyright, he or she can still retain the right to do certain things such as include articles in course packs, or place articles on a personal web site.

• Most open access journals allow authors to retain copyright or provide some ability to share the content.  If the author retains ownership of the copyright, he or she can grant a non-exclusive license to the publisher, typically for the right of first formal publication.
• Science Commons has created a Scholars Addendum Engine that generates a PDF example of what an author can attach to a publication agreement.
• The SPARC Author's Addendum  is a legal instrument that modifies the publisher’s agreement and allows an author to keep key rights to articles.Source:  ACRL Scholarly Communications Toolkit 
• Using the Creative Commons Attribution 4.0 International Public License  artists and creators can proactively make their work available for public use, under specific conditions.   

To use copyrighted material without requesting permission from the copyright holder, you must engage in a four factor fair use analysis. Consider the following:

1) Purpose and character of the use

• Is your use a non-profit educational use?

Is it “transformative”?  Does your use add “new meaning, expression, or message” to the original copyrighted work  (Campbell v. Acuff Rose Music, 510 U.S. 569 (1994))?  Use of a portion of a copyrighted work for criticism or parody, or in a new context that otherwise adds value to the work, are factors that lean towards a finding of fair use.  If a specific article is being assigned for the purpose of analyzing or critiquing the author’s point of view, a finding of fair use is more likely.  If an article is primarily background reading, then using it without permission is less likely to be deemed fair use.

2) Nature of the copyrighted work

• Is the original creative or more factual in nature?  Use of creative works is less likely to be considered fair use than use of works which are primarily factual.
• Is the work unpublished or widely published?  Using unpublished works is less likely to be considered fair use than use of widely published works.

3) Amount

• Is the amount appropriate to the use?
• Are you avoiding using the “heart” of the work?
• Did you use just what was necessary to get your point across?

4) Market Impact

• Would the original copyright holder be negatively impacted by your use?
• Is there a market to license the use and are licenses readily available?

Individuals should determine whether using copyrighted materials without permission constitutes fair use, based on the analysis described above. 

American University's Washington College of Law has been a leader in presenting information of Fair Use of materials in higher education.  See this website for past and current webinars about Best Practices in Fair Use for Open Educational Resources. 

AU also collaborated in the publication of the Code of Best Practices in Fair Use for Academic and Research Libraries. 

Explanation of Creative Commons copyright license options:https://creativecommons.org/licenses/ by which authors grant copyright permissions to their creative work.

Most OER content is released under a public license, thus you do not have to seek additional permission from the rightsholder in order to do the things authorized by the license. However, you do still need to follow the license terms. For example, the license may require attribution to the original author or it may forbid commercial uses. Other public licenses include the licenses on the lists of free software licenses maintained by the Free Software Foundation and the licenses approved by the Open Source Initiative. 

The following descriptions of the Creative Commons licenses come from About the Licenses by Creative Commons and are licensed under a Creative Commons Attribution 4.0 International license.

Attribution: CC BY

• 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.
• CC BY License Deed
• CC BY Legal Code

Attribution-ShareAlike: CC BY-SA

• 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. This is the license used by Wikipedia, and is recommended for materials that would benefit from incorporating content from Wikipedia and similarly licensed projects.
• CC BY-SA License Deed
• CC BY-SA Legal Code

Attribution-NoDerivs: CC BY-ND

• This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.
• CC BY-ND License Deed
• CC BY-ND Legal Code

Attribution-NonCommercial: CC BY-NC

• 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.
• CC BY-NC License Deed
• CC BY-NC Legal Code

Attribution-NonCommercial-ShareAlike: 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-SA License Deed
• CC BY-NC-SA Legal Code

Attribution-NonCommercial-NoDerivs: CC BY-NC-ND

• 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.
• CC BY-NC-ND License Deed
• CC BY-NC-ND Legal Code