5. Copyright Part II: Using Others’ Original Works Legally (Creative Commons, Fair Use, and Permission) | Presentation

If you own a bicycle, it’s pretty clear that you have rights to lend it out, sell it, keep it, paint it, take it on a world tour, and ride it wherever you are authorized to do so. And the same with materials in the Public Domain^[1] (works that were created by a U.S. Government employee, or published in the U.S. as of a 1920ish date). Note that works in the U.S. are continually entering the Public Domain—see Copyright Term and the Public Domain from Cornell University for authoritative information. But what about when someone else owns the bicycle [the middle bucket on the slide]? What rights do you have if you are not the owner? Is there any situation in which (perhaps in a true emergency) you might be justified in borrowing something you do not own for a use and duration that was warranted?

Well, this poses a problem, doesn’t it? Because we WANT to draw on a lot of sources when we create. Our work is often better when we draw on others’ expertise and what they have made. How do we answer the second dilemma of using others’ works? What exemptions exist for you to use others’ works, and what rights do others have to use your works?

Here is our proverbial bicycle again.

Copyright is a lot like this bicycle example. In the same way that someone owns an unlocked, unaccompanied bicycle, someone likewise owns the digital artifact you found freely on the web, the picture published in a book you own, the architectural model your classmate built and left in your classroom or studio overnight, or the cool diagram you saw on a conference poster.

In the same way as borrowing a bicycle, you must obtain some sort of permission to use in-copyright works when those rights don’t belong to you. This includes student academic work, because students own their own work! There is good news!

Principle 6: There ARE Legal and Ethical Ways to use Others’ In-Copyright Works.

There are three basic options. We’ll take these from the bottom, up (in the order we typically think of them) then we’ll talk about level of effort, which is why they are numbered in seemingly reverse order. You don’t need to memorize every detail about these, just reflect on the three kinds of exemptions that exist for using others’ works (or others using your work).

3. Obtaining permission to use in-copyright materials for specific purposes (similar to obtaining permission to borrow Hawa’s bicycle).

2. Options established through U.S. Copyright Law which allow use of works under the terms of “Fair Use” or the TEACH Act, on which some teachers will (rightly) rely on, or other exemption documented in statutory law. Because the TEACH Act exemptions require that twenty-two factors be met^[2] and one of those factors is “share only with my class,” the TEACH Act exemption is not useful for our “share for many uses and many classrooms” types of uses. We will not be discussing the TEACH Act further.

And 1. Using materials under the terms for which permission has already been granted. This permission is also known as a “license.” (Note that CC licenses always require attribution—see the Best Practices for Attribution – Creative Commons^[3] document at the bottom of the slide).

This [3,2,1] is the order in which we might commonly think of these options. However, if we think of them from “least effort” to “greatest effort” we will start at with number 1—where permission is already granted rather than seeking out new permission.

You don’t have to recall all of the details (yet) but it is important for you to remember these THREE options so that you can understand what practices are acceptable.

The three options are: (1) choosing to use works that already have a license allowing your specific, proposed use (and yes, we’ll talk more later about “specific, proposed uses”), (2) leveraging an exemption in U.S. copyright law such as Fair Use, or (3) obtaining permission for your specific, proposed use.

[Resource: A Framework for Analyzing any U.S. Copyright Problem^[4]]

Let’s talk quickly through these three relevant options in the Framework for any U.S. Copyright Question. We'll dive deeper into each one momentarily.

After confirming that material is indeed in-copyright, we ask:

1. Does the work already have a license permitting my proposed use?
   • Creative Commons licenses (which always require attribution) are one such license which is appended on an in-copyright work;
   • Another license might be covered in the “Terms of use” section described on a website.

(We’ll return to Creative Commons licenses and Terms of Use in a moment.)

By way of analogy, this would be a bit like Hawa placing a sign on her bicycle stating “Free to ride on Wednesday thru Friday from 4-6pm. Return in the condition borrowed or better.”

      2. Is my proposed use more fair than infringing according to an informed Fair Use analysis? Because you’re not getting permission from the copyright owner or their authorized representative, fair use is all about CONTEXT. A Fair Use analysis is one you conduct yourself to determine if a use is more fair or more infringing. It’s based on totaling up results for four factors established by copyright law: (1) the type of use, (2) the character of work you’re using, (3) how much of the work you’re using, and (4) the degree of harm to the commercial market for your proposed use.

This would be like using Hawa’s bicycle without her permission but in a way that has minimal impact to her. You might use only part of the bicycle or use it in a novel way it was generally not planned to be used (for a very limited time and in a very limited context).

Two helpful tools include

• The “Fair Use Evaluator”^[5] which can help you to organize your fair use evaluation, and
• Best Practices in Fair Use for Open Educational Resources (Pages 11-14)^[6].

(We’ll return to Fair Use in a moment.)

If steps 1 & 2 are not fruitful, in other words, if there is no pre-existing license or if your Fair Use analysis shows that your proposed use is more infringing than fair, move to the next step: seek and obtain) permission.

      3. Have I obtained permission for my specific, proposed use? This is the copyright owner indicating that they grant you permission for your specific, particular use. This would be like you asking Hawa for permission to use the bicycle between 3-5pm on Tuesday, and Hawa saying “Yes, you may use my bicycle between 3 and 5pm on Tuesday, but please don’t ride it through the mud.” It usually involves a lot of context, e.g., where/to whom (how public or restricted the use or distribution is), what format, how long, etc. (For further information, see the U.S. Copyright Office's circular on obtaining permission.^[7].) We’ll talk further about a helpful way you can obtain permission, and establish helpful reuse rights as well.

In case you're looking for the overall framework, see the “Framework for Analyzing any U.S. Copyright Problem”^[8].

Let's Look a bit Deeper at the Three Options

1. Does the work already have a license permitting my proposed use?

As we mentioned earlier, a work might have a Creative Commons license or some other type of open license. Alternatively, your proposed use might already be covered in the "Terms/Conditions of Use" section described on a website.

Creative Commons Licenses

What are Creative Commons licenses? Creative Commons licenses are free license markers that a copyright owner or their authorized agent add to an original work. The licenses do not remove copyright but are a layer on top of copyright, and move the permission to use the work from "All Rights Reserved" to "Some Rights Reserved." They enable the creator of a work to indicate to others what uses are permitted.

There are six licenses (at the bottom) and two Public Domain markers (at the top). The licenses have up to four icons each as you can see on the right: BY attribution (the person, which reminds us that we are required to give attribution), NC or Non-Commercial (the crossed out currency system which indicates that primarily-commercial uses are prohibited), SA or ShareAlike (the leftward arrow which indicates that any adaptions must be licensed under the same terms as the original), and ND or No Derivatives (the equal sigh which tells us that we cannot make, build-on and redistribute a changed version). The two public domain markers (CC PD and CC0 indicate respectively, that a work has "no known copyright," or that it has to the degree possible been donated to the Public Domain by its creator and marked as such.

The public domain markers and licenses are displayed in order of freedom—the most freedom at the top to the least freedom at the bottom. They are named according to the sequence of their icons. For example, the fourth one in the list is referenced as: CC BY SA or Creative Commons Attribution ShareAlike.

The bottom two icons are ND or "no derivatives," and do not allow redistribution with changes. While they are still valuable, because they do not allow adaptation and sharing, they are not considered to be open licenses. Nor are works marked as ND or "no derivatives" considered to be open educational resources (OER).

Here is an introductory brochure on Creative Commons licenses.^[9]

What do the licenses allow, require or prohibit people from doing? Because we are specifically concerned about making our resources useful for others (including others making their own versions with changes), we've included in our discussion only those licenses which allow adaptation and redistribution in the chart below. In short, "ND" licenses are not included.

Figure 5.1: Unpacking Creative Commons licenses

There are a lot of things you are permitted to do with Creative Commons licensed works (those that allow derivatives, anyway). These are often called the 5R permissions (retain, reuse, revise, remix, and redistribute).^[10] As mentioned before, there are some restrictions. There are CC-licensed works that prohibit primarily commercial uses (NC or "NonCommercial"). And, there are others which require any versions or derivatives to have the same license (SA or "ShareAlike").

One VERY IMPORTANT thing to know is that all CC licenses always require attribution (BY or "Attribution"). You can read about the licenses (and read the individual licenses) here.^[11] If you're displaying or reproducing something with a Creative Commons license that allows derivatives, you must list the title, author, source (URL), and CC-license under which it was used. Further information regarding how to do this is available in Creative Commons' wiki site, Best Practices for Attribution.^[12]

If a picture, photo, textbook, etc. has a Creative Commons license on it which allows derivatives, you may incorporate it into your own work, or build on it with attribution. You'll also want to make certain that the licensed works within your overall work are compatible with the overall Creative Commons license you put on your work.

For example, if your overall license allows commercial use (CC BY, CC BY SA), best practice is not to include items that cannot be used commercially (CC BY NC, CC BY NC SA) within. For further information, see the Creative Commons FAWs and compatibility chart at Wiki/cc license compatibility.^[13]

If you're interested, this six minute introductory video provides more background on the origins of Creative Commons licenses and why someone might want to use them. See this video at: https://youtu.be/BlhJUJ9DC4A.^[14]

Terms of Use as a Second Alternative

If a resource does not have a Creative Commons license, sometimes the "Terms of Use" on a parent website or in the front matter of the resource indicates what rights you might have. Here are two examples: U.S. Geological Service^[15] and TeacherTube^[16]. Can you come up with a third example? Possibly one which is more permissive?

Let's talk about specific, proposed uses. Here are several examples of specific, proposed uses:

• Display a high-resolution image of an original that is in-copyright in a class lecture once per semester every semester.
• Insert an excerpt of a published paragraph or image and cite it. Distribute the overall work under a specific Creative Commons license.
• Reproduce a thumbnail image on the internet in a non-commercial setting to a global audience.
• Reproduce a high-resolution image in a commercial printed and (in perpetuity) digital publication with an anticipated print distribution of 1,000 and a digital subscriber audience of 15,000.

For which of these would you conduct a fair use analysis? For which would you already know that you should obtain permission? Do all of the examples have enough context (when, where, who, how much, public versus restricted, whether is is an economic impact) for you to even do a fair use analysis? What other information would you need?

You might ask, "What does my specific use mean, and why does this matter?" In the same way as lending a bicycle, owners of things may wish to enforce limits on how long you do something with their work, where it is shared, and how it might be changed (in the same way that Hawa might say “No, I don’t permit you to use my bicycle in a race through the mud," or "No, you may not borrow it for a week.")

How about this example? Thinking about your specific use, especially how broad it is, can help you know how much effort your project might be. Take a moment to read through the example "allowable uses." Which seem most permissive? Which are more restrictive but still useful? If someone wanted to use your work, would they be able to do what they wanted to do?

Take a moment to compare proposed uses with allowable uses. Then we'll give you a chance to document your specific use and if we want to later, we'll return to this and to examine the possibilities for whether or not you can use something in the way you've proposed, and how.

Now, it's your turn. What is a specific use you might have? What might you want to use? How? How much? Answer each of the questions on the "Your Turn" slide. [Sharing (optional) or return to this as an exercise/follow up exercise.]

Let's Talk About Fair Use. Is my Proposed Use More Fair Than Infringing According to an Informed Fair Use Analysis?

This is not a trick question. Not all educational use is fair use. And your proposed use in class—especially if you are planning to share in a context broader than your classroom—is broader than prior situations you may have considered. A proposed, specific use should include aspects of:

• How do you hope to use the copyrighted work?
• How creative (vs. factual) is the work? Has the work already been published?
• How much or how substantive is the part of the work you are using?
• Does my proposed use harm the original copyright holder's market for their work?

There are a few things to know about fair use:

• Section 107 of the Copyright Act^[17] provides the framework for Fair Use. It describes the four factors.
• Not all educational use is fair use.
• Outreach and sharing beyond your classroom changes the “purpose and character of the use.”

Uses are on a continuum. Some may be more fair. Some may be more infringing. If your proposed use is not as "fair" as needed, a key question to ask is “how can I make my use MORE fair.” In detail, here are the four factors from the U.S. Copyright Office:

Resources

The following resources may be helpful to you:

The Fair Use Evaluator: https://librarycopyright.net/resources/fairuse/index.php 

Code of Best Practices in Fair Use for Open Educational Resources (see pages 11-14): https://www.wcl.american.edu/impact/initiatives-programs/pijip/impact/best-practices-in-fair-use/best-practices-in-fair-use-for-open-educational-resources

As a last resort: Have I obtained permission for my specific, proposed use?

And, finally, as a last resort: obtain permission. Again, obtaining permission goes beyond just asking for permission. Just as you need a "yes" from Hawa to use her bicycle, you must get a "yes" to be able to copy and redistribute the work. Further information for requesting permission is available in the U.S. Copyright Office circular #10.^[20] You'll need to identify and contact the owner of the work, describe what you want to use, and when and how you want to use it. You might also ask for the in-copyright work to be released under the same Creative Commons license as your overall work. And, get it all in writing.

Several resources may be helpful to you:

• Example: Release form for Media, Illustrations, and Figures: http://hdl.handle.net/10919/105384
• U.S. Copyright Office on How to Obtain Permission (Circular #10): https://www.copyright.gov/circs/m10.pdf

In Summary

There are some things you can do when you don’t have enough rights , are not sure that you have enough rights, or when your Fair Use analysis is more infringing than fair:

• Look for alternatives: Find openly-licensed or Public Domain equivalent material that meets the same need.
• Look for ways to make your use more fair. Use less, smaller, lower resolution. . . only as much as is necessary.
• Use a work in a different or transformative* way than it was intended. Add value to the work.
• Obtain permission. When, where, how much + may I release this under the same open license as my work?
• Create your own original work. Take your own picture. Make your own drawing. Put the idea in your own words (and cite it!).

Finally, if you use content that is not your own, regardless of weather it is CC licensed, public domain, permission-granted or used under fair use, do other users a favor and indicate the status of that material. Here are some examples:

Creative Commons license

• Best Practices for Attribution of CC-license content^[21]
• Example (web environment): © David Lenker Strawberry CC BY 2.0
• Example (print environment): © David Lenker. Strawberry https://flic.kr/p/8JCr55 . CC BY 2.0 https://creativecommons.org/licenses/by/2.0

Public domain (not in copyright)

• Example (web environment): USGS Website. Public Domain
• Example (print environment): USGS Website. https://usgs.gov. Public Domain.

Permission

• (c) Author. Name of the work. Reproduced with permission. OR
• (c) Author. Name of the work. Reproduced with permission under CC BY 4.0. OR
• (c) Author. Citation in a format of your choosing. Reproduced with permission. OR
• (c) Author. Citation in a format of your choosing. Reproduced with permission under CC BY 4.0.

Fair Use

• (c) Author. Name of the work. Used under fair use. OR
• (c) Author. Name of the work. Adapted under fair use.

Review / Discussion questions

• List the three options for you to use another’s work, or for others to use your work.
• If you want to incorporate part of someone else’s work into yours, describe the steps you would take to determine if that is ok.
• Which of the three options seem easiest for incorporating others’ work in your own?
• Which of the three options require that you think most carefully about your “proposed use?” Why is that important?
• Does any of this change your thinking about how you might share?