None of Us Are Lawyers! Ask about copyright anyway

Open PD Open Pedagogy Summer Adventure
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Are you trying to figure out a question of reuse, copyright, licenses? It’s more on the content side than open pedagogy, but to apply the latter you might find yourself tripped up in the former.

There are always questions, and we can try to answer, but nearly always with the IANAL disclaimer --unless we really have some lawyers in the mix, speak up! We do have well informed librarians here.

In the introductions @sfigueroa2 has several questions about reuse of Italian cultural resources, fair use, etc.

Let’s bring those questions and answers here!

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Well, not lawyers, but Suzanne is one of the facilitators of the Creative Commons Certificate courses, which means she has deep knowledge of copyright and open licensing issues in general, and certainly for OER. (I’ve been a CC Cert facilitator, too.)

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I have a question about the license status of this resource, and I hope someone can help me sort through it:

This document is marked with three different licenses – the traditional copyright, CC-BY-NC-SA 2.0 and CC BY-NC-SA 4.0. I am not sure which one I need to pay attention to. I am interested only in using the text of the article, not the associated activities. I would like to incorporate the article, or parts of it, into a course I am creating. Any help would be appreciated!

Thanks.

Judy

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Hi Judy,

It’s a great question. If it’s okay, I’ll give a bit of background that will help shake out the answer for how you can use it.

Why the author includes three bits of information?

  1. The author retains the copyright throughout this discussion. The author is the one to define how the work can be used, and communicates this in the form of a license.
  2. If you were re-using a part of this work back in December 2004, then the CC 2.0 license would have applied to how you could use it. And the elements of that license are irrovokable if you had used the work back in 2004. Since you’re considering re-using it today, then the CC 4.0 license applies. In this case both are requiring the re-use be NC (for non-commercial use) SA ( share alike with a same CC license) and BY (give attribution to the author). To view the details of what that means for a CC 4.0 licence there’s a good wiki page at: https://wiki.creativecommons.org/wiki/License_Versions. (If you’re curious… it also shows the differences between 2.0 and 4.0 for each of these elements BY-NC-SA.)

How can you use it? There are two parts.

Freedom to:

  • Share — copy and redistribute the material in any medium or format
  • Adapt — remix, transform, and build upon the material

Obligation to:

  • Attribution — You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.
  • NonCommercial — You may not use the material for commercial purposes.
  • ShareAlike — If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.
    (The summary above is from the Creatives Commons site. The full details and further links are found at: https://creativecommons.org/licenses/by-nc-sa/4.0/ )

I hope this helps.

Go well,

Peggy Lynn

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Thanks Peggy Lynn. that is a thorough answer. All Creative Commons licenses are a flavor of being copyrighted but reusable under the conditions specified. I am confused by the copyright assertion associated with CommonLit as the copyright/ownership belongs to the author.

And the versions too add a layer of extra consideration too, but Peggy Lynn has it covered.

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Not sure why you say the copyright/ownership belongs to the author, Alan… If CommonLit had a contract with the author, then they might own the copyright. Or, for that matter, it might just be that this was work done while the author was an employee of their and so they own the copyright by the works-made-for-hire doctrine (which is the default for employees’ copyrightable works created during the course of their employment).

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Hence the not being a lawyer claim! If that’s the case then shouldn’t the rights statement be more consistent? It says copyright CommanLit but the CC license is given to the author. Or is this how things go if the author did work for the journal?

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Hi,

Not all Creative Commons licenses are as you describe. CC-0 is use by the author willfully relinquish copyright and put the work into “Public Domain” for anyone to use as they wish, for any purpose, and without the need for attribution. There is an interest in CC-0 by researchers openly releasing their data for unlimited secondary use, through initiatives like DataVerse.https://dataverse.org/

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So Creative Commons does not call CC0 a license, but rather a tool. The six CC licenses are BY, BY-SA, BY-NC, BY-NC-SA, BY-ND, and BY-ND-NC, all of which have the attribution (BY) clause, while CC0 has a statement by the author dedicating their work to the public domain (which is not a license, since a license is an agreement between the rightsholder and a user of some copyrighted work – rather, it is a public declaration of their action of dedication of the work to the public domain) … which works in countries where that is permitted.

Oddly, there are some countries (not many), where rightsholders are not permitted to put their works into the public domain, and in these jurisdictions there is a fallback license in CC0 which allows any potential user to do whatever they want to with the work, exactly as if it were in the public domain.

(Actually, there is then a third and final layer to CC0 where the rightsholder promises not to exercise any control over the work whatsoever (exactly as if the work were in the public domain), in jurisdictions where there is some technical reason for which the first two layers are not working.)

CC has another tool related to public domain: the public domain mark, which users can put on a work when they are showing the work, if they know the work to be in the global public domain. For example, museums use this when showing very old works.

As for the thing you noticed, Alan, about both names given… I’m not 100% what is intended by the way they have described rights. What I see on the page https://www.commonlit.org/en/texts/someone-might-be-watching-an-introduction-to-dystopian-fiction is

“Someone Might Be Watching — An Introduction to Dystopian Fiction” by Shelby Ostergaard. Copyright © 2017 by CommonLit, Inc. This text is licensed under CC BY-NC-SA 2.0.
Unless otherwise noted, this content is licensed under theCC BY-NC-SA 4.0 license

right under the text, and then

© 2014-2021 CommonLit. ™
at the bottom of the page.

The one at the bottom just seems to be about random things on the page, and the page itself. As for the work shown on that page, it seems that the author is this person Shelby Ostergaard but the rights are held by CommonLit. This is only really important in reusing this work, either by copying or adapting it, whereupon you have to give a careful attribution to the work. Now rightsholders can say if they want attributions to their works done in a certain way, so what I would probably do with this work is, when making a copy of this work, to give an attribution like

“Someone Might Be Watching — An Introduction to Dystopian Fiction” by Shelby Ostergaard is licensed under CC BY-NC-SA 2.0 by CommonLit.

where the part “Someone Might Be Watching — An Introduction to Dystopian Fiction” would be a link to the URL www.commonlit.org/en/texts/someone-might-be-watching-an-introduction-to-dystopian-fiction, the CC BY-NC-SA 2.0 would be a link to the URL CC BY-NC-SA 2.0 Deed | Attribution-NonCommercial-ShareAlike 2.0 Generic | Creative Commons and the CommonLit would be a link to the URL www.commonlit.org … because it would be my interpretation that that is what they want by giving that licensing/copyright statement. … But, of course, IAmNotALawyer!

One last point: I don’t know that I agree with a point made earlier in this thread that the 2.0 version of the license only applies to the work in the past, while the 4.0 version applies now. It is true that more recent versions of a license are considered compatible with older versions, so that, for example, if you adapted this work, you would have to put a CC BY-NC-SA license on your new adaptations (because of the SA), but you would be free to put any version of BY-NC-SA from 2.0 to 4.0 on it, since they’re all compatible with the old 2.0. CC strongly recommends that you always use the most recent version of the license suite whenever you newly license something, so that advice would imply you should license your new adaptation as BY-NC-SA 4.0.

However, that license on the new adaptation doesn’t change the license on the original work, which keeps its old license. This issue actually has some teeth! For example: one of the big issues with the 4.0 version of the license suite is that a user who is not correctly complying with all of the parts of the license has 30 days to fix those errors after being notified of them, and then will be considered in compliance. Earlier versions did not have this. So it turns out that there are some copyright trolls in Germany who are posting media on sharing sites with older versions of the licenses, and then if anyone uses one of those files with even the tiniest mistake in their attribution, the license is instantly and irrevocably violated, whereupon the troll can go after the user as having made a copyright violation with potentially a large penalty. Some users have been caught with this and have had to pay large sums to the trolls. All of which, of course, only applies because that old license version sticks to the work and the user today cannot say “I prefer to be subject to the terms of the 4.0 version of the license, not the 2.0 (or 3.0) version which the work says it is released under.” See what I mean?

BTW, sorry I went on so long … but I’m kind of obsessed about all of this stuff. It’s fairly intricate, but if anyone is interested, I strongly recommend taking the Creative Commons Certificate course (see https://certificates.creativecomms.org) which leaves one a complete expert on all of it!

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Hi ,

Re: 2.0 or 4.0 there are significant differences in the language making some elements “explicit” that were merely implied in previous versions. Hence, the reason I shared the wiki from creative commons, so anyone on this list could dive into the delicious details.

Re: only six licenses. Creative Commons offers five ways to communicate user rights of works.
CC0- granted all rights which would stand alone without any of the other four (BY, SA, NC, ND)

The four limiting rights can be used in any combination (e.g. CC-ND-NC). After a few years, it became clear that not all users were able to discern for themselves how some of the combos had internal contradictions. Creative Commons focused on the most common six and developed rich support to aid in usability and legal challenges. The only reason BY is in these six licenses is because it proved over time to be the most commonly selected right by those using CC. But it is not a requirement.

Re: one course making on an expert in all of it. The nuance of understanding of any situation involved is more complex. One needs to understand one’s own jurisdiction both for the applicable laws of the land, as well as those of one’s students (if they are remote and in a different jurisdiction), and also the legal landscape of one’ s own institution or organization. One’s home institution’s Copyright Office is a great place to ground any pursuit of the intricate nuances of how to proceed.

Respectfully,

Peggy Lynn

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Great advice! Many days I wish the licenses were simpler. But here we are.

BY is written as a requirement though idealistically, I would prefer that people see attribution as an act of gratitude (see, idealistic!). I provide attribution even where licenses say I do not have to. Maybe I am weird.

Over the years I’ve run my experiment of sharing 60,000 + flickr photos under CC0. I get much more out of people contacting me to offer attribution, asking permission (although they do not have to), or just saying thank you, thank trying to make money from them. Heck, if someone can make money from my photos, good on them.

This does lead me to the flip side of licensing one’s own work.

Maybe it’s me, but I do come across mis-conceptions that a license can “protect” a work from uses the creator of it does not want to see. A license has no teeth or policing of its own, but it seems like it creates that impression.

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I’m helping a Marketing professor on a Pressbooks/H5P project, they want to use in an activity as an example the content on a company’s current rebate:

I wanted to use a current recall as an example for Public Relations. How can I 1) save a whole webpage and make it accessible in the textbook (without using the link as I think that will probably disappear in a while) and 2) what are the copyright issues …

My asterisked advice was that you cannot use an entire web page, as the first check, is that unless otherwise stated, it is copyrighted (plus it does state at the bottom “All Rights Reserved”. You cannot just make a copy.

I understand the concern that a link might not be durable. I did suggest using something like a citation reference of when that link was accessed and/or including as a back up, a link to the content in the Internet Archive (a copy was there).

And there always is the longshot odds of asking permission, which if granted, would be one could use a PDF version.

It circles back to the activity design. Does it require the learner to use the original web site, or can the information be summarized in the description of the activity?

Just curious how others deal with similar questions.

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So IAmNotALawyer, but I’m fairly sure that in situations like this the expert copyright lawyers who authored the " Best Practices in Fair Use for Open Educational Resources" (here: Best Practices in Fair Use for Open Educational Resources - American University Washington College of Law ) would say that you can copy out the entire web page and use it, without permission, because of fair use. They propose a two-step test for fair use (which is a little different from the four-step test a lot of us learned, but they argue that their two steps encompass much of important parts of the older four steps approach, and they also assert that caselaw supports this new test) that for a use to be a fair, it must

  1. be a transformative use of the material; and
  2. use an appropriate amount of the original material.

I think that a pedagogical use of an entire page is very likely to meet this test. The “Best Practices…” folks give as a clear example of a case for fair use one where a prof might quote an entire poem – modern, clearly under copyright – in order to do a structural analysis of the poem in a literature class; that seems not all that dissimilar to using an entire web page for a Public Relations analysis.

So, if I were you, I’d feel completely comfortable using a copy of that whole web page under the fair use doctrine! …But IAmNotALawyer, I repeat.

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YouSoundLikeALawyer :wink: just kidding.

My hunch is for my own teaching I could make this choice like you suggest.

In this case we are not talking about a classroom use, but within an open textbook where my colleague is creating some practice activities, e.g. maybe some multiple choice, word matching, fill in the blank type questions referring to the web page content. Transformative feels subjective here.

And is the amount of original material- is the “original” the one web page? Or is it the amount the one web page represents from the entire web site?

The murky part is that fair use are not rules. These are all guidelines you can use to argue a case before a judge.

If up to me, I would recast my activity so not to rely on a copy of other content. And it always seems a bit out of synch that quoting from a published text or a poem is kosher with a citation, but not with any other media.

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Totally with you, Alan, that it’s up to folks’ individual comfort levels. But the “Best Practices…” document I cited before seems really clear and for OER use, not just classroom use!

That document is really worth a good examination. And the wonderful folks who wrote it have given lots of presentations, some of which must have been recorded (although I don’t have the links at my fingertips…).

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It’s useful to understand the US Copyright Act section that deals with Fair Use. (The Canadian one, under which I work, is slightly different.)

Source: Chapter 1 - Circular 92 | U.S. Copyright Office

107. Limitations on exclusive rights: Fair use41

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

It’s best to understand’s one’s own institution’s position on Fair Use, when navigating how one determines appropriateness in answering the four factors.

Peggy Lynn

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Indeed these are clear, but in my very humble opinion again they seem to be read as rules like terms of a license. To a person creating a work, they might feel confident they are within these limits.

But these are just the guidelines a court will use in rendering a decision should your fair use be questioned.

My opinion does not matter, it is up to a judge.

So yes, it is absolutely critical to get your organization’s/institution’s perspective rather than making your own judgement call.

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More flavors of licenses I came across today. Has anyone dealt with these ones?

I was exploring a link to the Diamondback Photos collection within the University of Maryland Library (over 16,000 historical photos)

They are using for licenses ones from Rights Statements which have ones that are similar but different from Creative Commons ones. There are twelve statements total, and in a way, the organization is clear between content that is In Copyright, Not in Copyright, and Other (aka unclear). The statements are all clearly written and have use cases that are more specific.

It is also helpful that these are licenses cultural institutions would apply, for someone reusing the content, it just makes it clear how the works can be used.

For example this digitized photo of Fatima Jackson is shared under a In Copyright Non Commercial Use Permitted
statement.

It can help to know there’s always more to licenses than the ones we hear about most often.

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Hello,
I am currently working on, and supporting some funded open textbook adaptations at our institution. We are going through the copyright review process, and I have a question that I hope I can get some clarification on. Many of the OER resources we are adapting reference copyrighted material. Is it safe to assume that the creator of the OER was granted permission to use that material before releasing under an open license? Do your institutions have a process of requesting permission for previously referenced material in adapting OER? I appreciate any insight you may have on this process. Thanks!

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Hi and welcome to OEG Connect.

When you say “reference copyrighted materials” are you saying as in a citation/bibliography style? Or do these OERs contain media or content from copyrighted sources?

If it’s the latter it’s never safe to assume if attribution is not explicit. If an OER includes copyrighted content it would have to say used by permission. And if that’s the case it’s not much of an OER, you can’t openly license a work that included copyrighted content.

It would help if you could share a link or source for this OER and an example of copyrighted references within.