An open license is a vital component of an open educational resource. Because of this, it is important that you understand how open licenses work within copyright law. This chapter will provide an overview of U.S. copyright law, fair use, and licensing to help you navigate this topic.

Attribution: “What is an open license and how does it work?” by The Council of Chief State School Officers is licensed CC BY 4.0.

Copyright Law

U.S. copyright law protects an author’s rights over their original creative works (e.g., research articles, books and manuscripts, artwork, video and audio recordings, musical compositions, architectural designs, video games, and unpublished creative works).^[1] As soon as something is “fixed in a tangible medium of expression,” it is automatically protected by copyright. According to Wex Legal Dictionary, a resource is fixed when:

“its embodiment …by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”^[2]

In other words, an idea for a book you want to write is not protected by copyright, but the first draft of your manuscript is. Copyright protection ensures that the creator of a work has complete control over how their work is reproduced, distributed, performed, displayed, and adapted.^[3] You do not need to register your resource with the U.S. Copyright Office for this to come into effect; it is automatic.

Public Domain

Works that are no longer protected by copyright are considered part of the public domain. Items in the public domain can be reused freely for any purpose by anyone, without giving attribution to the author or creator.^[4]

Public domain works in the U.S. include works whose creator died 70 years prior, works published before 1924, or works dedicated to the public domain by their rightsholder. The Creative Commons organization created a legal tool called CC 0 to help creators dedicate their work to the public domain by releasing all rights to it.^[5]

Licensing

The copyright status of a work determines what you can and cannot do with it.^[6] As you begin to explore OER for use in your classroom, it is important that you understand your rights over the works you create and what it means to give those rights away.

Most copyrighted works are under full, “all rights reserved” copyright. This means that they cannot be reused in any way without permission from the work’s rightsholder (usually the creator). One way you can get permission to use someone else’s work is through a license, a statement or contract that allows you to perform, display, reproduce, or adapt a copyrighted work in the circumstances specified within the license. For example, the copyright holder for a popular book might sign a license to provide a movie studio with one-time rights to use their characters in a film.

Open Licenses

All OER are made available under some type of open license, a set of authorized permissions from the rightsholder of a work for any and all users. The most popular of these licenses are Creative Commons (CC) licenses, customizable copyright licenses that allow others to reuse, adapt, and re-publish content with few or no restrictions. CC licenses allow creators to explain in plain language how their works can be used by others.^[7]

Creative Commons licenses will be explored in more detail in the next chapter. However, there are other open licenses that can be applied to educational materials. A few of these licenses are described below:

• GNU Free Documentation License: a copyleft license that grants the right to copy, redistribute, and modify a resource. It requires all copies and derivatives to be available under the same license. Copies may be sold commercially, but the original document or source code must be made available to the user as well.^[8]
• Free Art License: The FAL “grants the right to freely copy, distribute, and transform creative works without infringing the author’s rights.” It is meant to be applied to artistic works, not documents.^[9]

If you’re interested in learning more about open licenses, feel free to explore the Free Software Foundation’s information on copyleft licenses, some of the first licenses used for open content.^[10]

Why Open Licenses?

Open licenses are an integral part of what makes an educational resource an OER. The adaptability and reusability of OER make it so that they are not just free to access, but also free for instructors who want to alter the materials for use in their course. For example, in the figure below an openly licensed image has been traced to make it more readable for users.

One of the tenets of OER laid out early on in the open education movement was the idea of the 5 Rs (originally the 4 Rs) introduced by David Wiley (2014)^[11]. These five attributes lay out what it means for something to be truly “open,” as the term is used in open education. The 5 Rs include:

• Retain = the right to make, own, and control copies of the content.
• Reuse = the right to use the content in a wide range of ways
• Revise = the right to adapt, adjust, modify, or alter the content itself
• Remix = the right to combine the original or revised content with other open content to create something new
• Redistribute = the right to share copies of the original content, your revisions, or your remixes with others

While the “redistribute” and “revise” rights are the most commonly exercised rights in open education, each of the five plays an important role in the utility of an open educational resource. For example, without the right to “remix” materials, an instructor who teaches an interdisciplinary course would not be able to combine two disparate OER into a new resource that more closely fits their needs.

In the next chapter, we’ll look at Creative Commons licenses and how they facilitate the expression of the 5 Rs in unique ways.