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Open Educational Resources (OER)

Common Misconceptions about Copyright & Intellectual Property

Common Misconceptions About Copyright & Intellectual Property

  • Fair Use:
    • Fair use is a defense one would assert if one were being sued for copyright infringement, NOT a term that can be used to justify copyright infringement. If you plan to incorporate any portion of a copyrighted work into your own, and you have not received permission to do so from the copyright holder, you are placing yourself at risk of violating copyright.
    • A Fair Use assessment consists of four factors:
      1. Purpose and Character of the Use: Educational Use falls under this factor, but you still need to satisfy the other three factors.
      2. Nature of the Copyrighted Work: This factor relates to the amount of creative labor that went into the production of the work in question.
      3. Amount and Substantiality of Work: See below, Ten Percent Rule/ One Chapter Rule
      4. Effect on the Market or Value: If what you are providing serves as a substitute for purchase, rather than an enticement to purchase, you are affecting the market. In the academic context this includes posting any portion of a copyrighted textbook online. Since your students are the sole market, this action is undoubtedly affecting the market.
    • Fair use does not apply to the creation of OERs. Materials must either be open sourced or you must receive permission from the creator.
    • For more information on Fair Use visit the United States Copyright Office: https://www.copyright.gov/fair-use/more-info.html
  • Ten Percent Rule/ One Chapter Rule: There is no percentage of a copyrighted work that may be used without permission. Using any portion of a copyrighted work without the consent of the copyright owner can constitute infringement.
    See, e.g., 471 U.S. 539 (1985) HARPER & ROW, PUBLISHERS, INC., ET AL. v. NATION ENTERPRISES ET AL.
  • The Mickey Mouse Rule: There is no truth to the common belief that copyright terms are continually extended to prevent certain properties from falling into the public domain. This erroneous notion is often applied to the mascot of the Walt Disney Company, Mickey Mouse—hence the term "Mickey Mouse Rule." The "Rule," however, only makes sense if one is unaware of the many legal tools used to protect intellectual property in the United States: patent, right of publicity, trade secret, and trademark, among others. Mickey Mouse is the subject of close to fifty trademarks covering a wide variety of goods and services. Unlike copyright, which has term limits, trademarks can exist in perpetuity so long as they are being used in commerce.
    See, e.g., Mickey Mouse Logo Trademark no. 77623965
  • Online Equals Free: Just because a resource appears on the Internet does not automatically place it in the public domain. Do not assume you may use an online resource unless it was posted by the copyright holder (author, publisher), and has no other warnings prohibiting use. Additionally, do not be fooled by a .edu web address. Just because a resource appears on an academic website does not mean that the copyright holder has granted permission.
  • You can find an "OER Version" of a Copyrighted Work: If a work is copyrighted, then by definition no version of that work exists outside of copyright. You may be able to find a work that covers similar topics or subject matter, but you will not be able to find an "OER Version" of the same text.

Copyright & Intellectual Property Resources

  • U.S. Copyright Office

    The US Copyright Office provides circulars and factsheets with similar information on copyright, as well as the opportunity to search registered copyrights.
  • U.S. Patent and Trademark Office

    The US Patent and Trademark Office is a good first stop for information on trademarks and patents, from the most basic information (what is a patent or trademark?) to the more advanced (how can I file for a patent or trademark?). Users can search existing patents and trademarks, and learn more about which protection is applicable to a given situation.
  • World Intellectual Property Organization (WIPO)

    The World Intellectual Property Organization (WIPO) provides information about intellectual property generally, and intellectual property outside of the United States.
  • Copyright Clearance Center

    The Copyright Clearance Center provides a “Campus Guide to Copyright Compliance,” with information and links.
  • Public Domain Calculator

    Peter Hirtle, Intellectual Property Officer for the Cornell University Libraries, created a chart explaining copyright terms and when items fall into the public domain. This can be used to determine whether copyright permissions (or fair use calculations) will be needed for a given item.
  • Copyright Request Letter Samples

    Several universities provide sample letters for users seeking copyright permissions from rights holders.
  • Association of Research Libraries (ARL)

    The Association of Research Libraries (ARL) has its own code of best practices for copyright and fair use.
  • SUNY Sullivan (Sullivan County Community College) “Fair Use Checklist”

  • SUNY Sullivan (Sullivan County Community College) “TEACH Act Checklist”

  • Brigham Young University “Copyright 101”

    Brigham Young University created a “Copyright 101” tutorial for students, faculty, and anyone else looking to learn more about copyright law. The course features information on the purpose and history of copyright law, duration of copyright law, permissions, and fair use and other exemptions; and provides case studies for users to test their knowledge in simulated real-world situations.
  • Harvard University's Berkman Center for Internet and Society

    Harvard University's Berkman Center for Internet and Society working with Electronic Information for Libraries (EIFL) developed an online course entitled, “Copyright for Librarians.” The course can be taken at five different levels, based on prior user knowledge, and features modules on copyright issues pertaining to libraries, copyright law generally, enforcement mechanisms, public domain, rights management, and more.

OER-QMS, Creative Commons, and other Open Licensing

OER-QMS License

Created by Professor Adam J. McKee, the OER-QMS License "is inspired by the GNU licenses used by software developers and the Creative Commons licenses. These licenses, however, result in many iterations of content that are not updated and corrected as time passes. The purpose of this license is to offer content creators the right to maintain a single, high-quality source that they control and maintain such that quality can be preserved over time."

Creative Commons

Creative Commons is a non profit organization which specializes in licenses and other technical tools which allow an author/creator to give permission for their work to be:

  • Used freely with attribution (BY)
  • Used freely for non-commercial purposes (NC)
  • Used freely, but prohibit the creation of derivatives (ND)
  • Shared Alike, with any derivatives sharing the license given to the original work (SA)

Creative Commons asserts that it is NOT anti-copyright and states:

"CC licenses are copyright licenses, and depend on the existence of copyright to work. CC licenses are legal tools that creators and other rights holders can use to offer certain usage rights to the public, while reserving other rights. Those who want to make their work available to the public for limited kinds of uses while preserving their copyright may want to consider using CC licenses. Others who want to reserve all of their rights under copyright law should not use CC licenses."

Check out the University of Pittsburgh Library System's Copyright and Intellectual Property Rights Toolkit for a more detailed look at copyright, creative commons, intellectual property rights, and what users and creators need to know.

Anatomy of a CC License | by Brooklyn College Librarian Sheena Philogene

Brooklyn College Librarian Sheena Philogenehas created an openly licensed tutorial covering all the basics of Creative Commons Licensing.