Understanding Copyright and Open Licenses

If you wanted to visit a national park like Joshua Tree National Park in the United States, you could. Americans and international visitors are welcomed to the protected areas because federal park policy designates the land and resources as cultural resources for the national and global public.^[1] In other words, unlike privately held lands, these natural wonderlands are designated to be accessible to the public for our common cultural good to marvel at the majestic rock formations and learn how Joshua Trees flourish in the barren desert.

Open education takes the national park model to the next level. OER is distinguishable from other educational materials because of the latitude of use granted through open licensing. Users are permitted to retain, revise, remix, reuse, and redistribute OER. The materials, as David Wiley defined the OER, are

“any copyrightable work (traditionally excluding software, which is described by other terms like ‘open source’) that is either (1) in the public domain or (2) licensed in a manner that provides everyone with free and perpetual permission to engage in the 5R activities.”^[2]

This is like allowing someone to not only access and enjoy a national park, but to claim and cultivate their own parcel or start their own park altogether. The comparison makes OER sound wild, doesn’t it? The truth is there are boundaries and rules rooted in U.S. copyright, fair use, and open licensing. In this chapter, we will give you a quick rundown of these complicated topics to give you a firm legal footing when creating your OER.

Definition and Terms of U.S. Copyright

United States copyright law is designed to protect creators’ intellectual (and financial) rights over their creative works and the rights of people to consume such creative works.^[3] From film to scholarly articles, creative works are protected under Section 102. of U.S. copyright law: once “original works of authorship [are] fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”^[4] In other words, a highly creative work that we can perceive using one or more of our senses is likely copyrightable.

Public Domain

The public domain can be likened to the concept of dedicating national parks to a common public good. The public domain is a term for creative works that cannot be copyrighted or are not copyrighted.^[7] Use of public domain works follow these general guidelines:^[8]

•  Because public domain works have no restrictive copyrights of use, you may
  • Freely copy and use it, and
  • Use it without the permission of the former copyright owner, whose copyright expired.
• Though you may use a work in the public domain, you cannot copyright the public domain work because “no one can own it.”
  • You can, however, copyright original elements as well as the arrangement and selection of public domain elements.
    • For example, if you select, arrange, and annotate an anthology of short stories in the public domain, then you may own the copyright to your original elements but not to the short stories.

Open Licenses

We think of open licenses as a way to create a type of third space along the spectrum of copyright and the public domain. As you know, to use someone’s copyrighted material, you must obtain permission, also known as a license for specific use.^[12] Open licenses are a way for you to help people immediately know how they can use your creative works. In other words, you can retain your copyrights and foster individual and collective creativity and intellectual growth. That’s what we call a win-win.

Creative Commons Licenses

Creative Commons (CC) licenses are the most commonly used open license in the open education movement because the CC organization is deeply committed to making education more affordable and accessible.^[13] Applying a CC license to your work allows you to communicate the retention of your copyrights across a spectrum, from copyright’s all rights reserved to placing your work in the public domain.

In addition to their CC branded icon, CC Licenses essentially offer four licensing terms or rights that can be combined into six types of licenses. Let’s take a closer look at the different components.

Creative Commons Rights and Icons^[14]

CC Icon	License Right	CC Icon	License Right
Attribution (BY)	By (BY) typically after CC, requires creator must be credited when the work is cited, remixed, or otherwise used.	Share alike (SA)	Share alike (SA), requires all derivatives or remixes of the work be licensed under the same terms. For example, remixes of a CC BY-SA work must also be CC BY-SA.
Noncommercial (NC)	Noncommercial (NC) restricts users from using the work for commercial purposes. Authors often use this to protect their right to financially profit from their publication.	No derivatives (ND)	No derivatives (ND) prevents users from modifying or remixing the work. This does not prevent you from properly citing or critically engaging with the creation, though.

Using Creative Commons (CC) as your base right, you can add and combine attribution (BY), share alike (SA), noncommercial (NC), and no derivatives (ND) to express permissions of use to consumers of your work. The one exception is that no derivatives is not compatible with share alike because no derivatives does not allow remixing. That is, there is no means to apply a share alike stipulation for remixed versions of a work if remixing is not permitted.

CC Badges

The four licensing terms are combined in a variety of ways to attribute an open license. Attributions are noted with a written notice and/or a CC badge. Look for CC licenses in the front matter of a Pressbook, in a website footer, or immediately next to an item, such as a photo caption. See our full discussion on attributions for more.