Copyright law gives the creator of copyrighted works exclusive rights to
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 or in the Digital Commons.
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 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
4) Market Impact
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.
While Creative Commons licenses do not require you to ask for permission, sometimes it is still a good idea to ask for permission. In particular, works with a No Derivatives license may require advance permission before it can be redistributed. Most open licenses give you advance permission to do the 5 R’s with the work: Retain, Reuse, Revise, Remix, and Redistribute. However, there are still some situations in which you will need to seek additional permissions from the author/creator.
If you find content online that is free, and does not have an open license, you can link out to it, but will need permission to do the 5 R’s with it, including downloading and redistributing copies to your students. You can ask the author for permission for your own use, or better yet, request that they put an open license on their page so that others can make the same use without seeking permission in the future.
If you find content with a No Derivatives license, you still have a fair use justification to make changes in your own course. If you want to share your work more widely with an open license, and it incorporates the No Derivatives content, then you will need to seek permission from the author to use their work in this way.
Keep in mind that authors who share out educational material are already interested in sharing. They are likely to be open to your request!
No matter what materials you use, or how you are presenting them, it is important to always include an attribution. Linking to the original source and creator is not only proper etiquette, but enables you to find the content again if needed. Most Creative Commons licensed materials require others to at least give the author credit.
For more information about attribution review the following resources:
Use one of the following spreadsheets to keep track of your attributions:
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.