Frequently Asked Questions

Copyright & Open Licensing FAQs

 

Questions covered:


 

Q: I’ve often heard that copyright law has many exceptions when the work is being used “for educational purposes” and have always wondered what that meant.

A: What you’ve described is called the Fair Use doctrine. It’s a principle that permits limited use of copyrighted material without acquiring permission from the rights holders. The nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market are the factors of analysis outlined in copyright law. For example, if you used a small portion of a copyrighted work for nonprofit educational purposes without any harmful intention your case may qualify as fair use.

However, weighing the fair use factors is often quite subjective . If the copyright owner disagrees with your fair use interpretation the dispute may have to be resolved by a lawsuit or the college may need to remove the offending material. The State will indemnify and defend you if you exercised good judgment and acted within the scope of your employment.

The difficulty in claiming fair use is that there is no way to guarantee that your use will qualify as fair. We recommend that faculty:

  • Do not rely heavily on fair use doctrine when adding copyrighted work (with all rights reserved) to your materials.
  • Look for openly licensed versions or public domain works instead.
  • When in doubt, seek written permission. As a general rule, it is wise to operate under the assumption that all works are protected by either copyright or trademark law unless conclusive information indicates otherwise.
  • Use common sense to determine whether your use will have an impact on the owner’s potential market, which is the most important factor in a fair use analysis.
  • Check with the copyright administrator at your institution when you have copyright questions.

The above content is excerpted from the pages of “What is Fair Use?” by Rich Stim, Attorney at Law, Stanford University Libraries. CC BY NC .

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Q: Can I add a hyperlink to a copyrighted resource with all rights reserved?

A: You do not need permission to link to another website’s home page. Courts generally agree that linking to another website does not infringe the copyrights of that site, nor does it give rise to a likelihood of confusion necessary for a federal trademark infringement claim. However, there are a couple of things that we need to be careful of regarding external links:

  • Linking to infringing works: Avoid a situation where you knowingly link to works that clearly infringe upon someone’s copyright, like pirated music files or video clips of commercially distributed movies and music videos. In this situation, you might be liable for what is known as “contributory copyright infringement”. “Contributory copyright infringement occurs by ‘intentionally inducing or encouraging direct infringement’ of a copyrighted work.” (See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd, 545 U.S. 913, (2005)). As long as you do not know that a work infringes someone’s copyright, then you cannot be held liable for contributory infringement for directing users to that work. On the other hand, it is not necessarily safe to simply claim that you “didn’t know” when the circumstances make it clear the material you link to is infringing. Use your common sense. Fred von Lohmann gives the following rules of thumb to help avoid contributory copyright infringement (specifically with reference to embedding videos):
    1. don’t embed videos that are obviously infringing, and
    2. consider removing embedded videos once you’ve been notified by a copyright owner that they are infringing.
      Relatedly, you may be able to protect yourself against claims of contributory copyright infringement by complying with the notice-and-takedown procedures of the the Digital Millennium Copyright Act (DMCA). For details, see Notice-and-Takedown.
  • Linking to sites with a No Deep Linking policy: Many copyright experts believe that deep linking (links that bypass a website’s home page) is not copyright infringement — after all, the author of a novel can’t prevent readers from reading the end first if they so desire, so why should a website owner have the right to determine in what order a user can access a website? Some well-known websites such as Amazon.com welcome deep links. However, if a commercial website has no linking policy or says that deep links are not allowed, it’s wise to ask for permission before deep linking.

The above content is directly excerpted from these pages:

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Q: Can I add or embed videos from video sharing websites like YouTube in my course shell?

A: This practice is called “inline linking” which involves placing a line of HTML on your site that displays content directly from another site. We now commonly refer to this practice as embedding. Inline linking a YouTube video is generally acceptable regardless of its license condition (Standard YouTube license or Creative Commons license)

A recent case from the Ninth Circuit Court of Appeals concluded that inline linking does not directly infringe copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material. See Perfect 10, Inc. v. Google, Inc., 508 F.3d 1146 (2007). Other courts may or may not follow this reasoning. However, the Ninth Circuit’s decision is consistent with the majority of copyright linking cases which have found that linking, whether simple, deep, or inline, does not give rise to liability for copyright infringement.

In addition, merely using an inline link should not create trademark liability, unless you do something affirmative to create the impression that you are somehow affiliated with or endorsed by the site to which you are linking. Thus, embedding media in your online work should not expose you to legal liability.

The above content is directly excerpted from these pages:
Linking to Copyrighted Materials, Digital Media Law project, CC BY NC SA

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Q: I want to add a resource that is offered under a different CC license than the default CC license I’ve chosen for my content. For example: My content is mostly CC-BY but I have incorporated CC-BY-SA materials into my work. Should I mark my work with CC-BY-SA?

A: Generally, it is okay to collect works under CC licenses, as long as the attributions are clear, and there is a note in the material that mentions that some material might have more restrictive licenses. You could simply add “Except otherwise noted” in the main CC license notice, which indicates that the materials might contain some resources governed by different terms and should therefore be treated as specified by the original author. Or you could add a more specific note: “Original material in this course is licensed with a Creative Commons Attribution 4.0 license; however, please respect more restrictive licenses of adopted content where attributed.”

Therefore, regarding the case you mentioned, you can still release your work under a CC BY license with the added phrase “Unless otherwise noted” in the licensing notice. This means the content is CC BY licensed but it contains some resources that are marked with different licenses, such as CC BY-SA, and those resources should be treated as specified by the original author intended.

The exception would be in the case of adapting the BY-SA materials. Any adaptations would have to be shared alike under the same license (BY-SA) per the ShareAlike condition. But if the BY-SA materials are included verbatim, faculty need only make note of those materials and the separate licenses governing those materials.

Keep in mind that you can only ever CC license rights to work that you own. In general, please make it a practice to clear all copyright issues before releasing your work with a CC license. In order to avoid distributing copyrighted work, faculty should make a practice of stripping their courses of copyrighted material before sharing to the Commons.

For more information about combining works under different CC licenses, see the CC FAQ.

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Q: What is the difference between open licenses (such as Creative Commons licenses), public domain and all rights reserved copyright?

A: All rights reserved copyright means that the copyright holder reserves for their own use, all the rights provided by copyright law. Typically, if the materials are copyrighted with all rights reserved, the users are not allowed to republish them without copyright holder’s explicit permission.

It is important to understand the difference between public domain and open licenses (such as Creative Commons licenses). They both grant free access to the materials, but the scope and nature are completely different.

Open licensing does recognize clear and specific ownership of intellectual property, whereas the intent of public domain is for the copyright holder to waive copyright ownership in the work. Therefore, users are required to attribute the work to the original authors when using openly licensed materials.

In a way, public domain is the purest form of open/free since no one owns or controls the material in any way (this sentence is from Public Domain, CC-BY). Please see the table below to see the difference between these terms.

Public Domain Open License All Rights Reserved Copyright
Copyright ownership waived. Copyright ownership retained. Copyright ownership retained.
Author gives away rights to the public. Author grants rights in advance. Author does NOT grant rights to the public.
It is not mine. I give up my right as an author. You don’t even have to cite me although I would appreciate it. It is mine but I do allow you to take my material. No need to ask for my permission to use it because it is already granted -just be sure to make proper attribution to me. It is mine. I do NOT allow you to take this material and repurpose it. You definitely need to ask for my permission to use it.
Most open. Most closed.

 

Difference between open license, public domain and all rights reserved copyright by Boyoung Chae, CC BY

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Q: I have created content using my own and college resources during my off-time. I would like to openly license my work, however, I am not sure if I am the copyright holder of the material I created.

A: Each college has a different policy regarding faculty created work using college resources. Please see the “Faculty Collective Bargaining Agreement” of your college to see the terms and conditions regarding intellectual property. These provisions are meant to address the work-for-hire doctrine in the Copyright Act, which vests ownership in the employer for works created within the scope of an employee’s duties. In general, the collective bargaining agreements provide greater ownership rights to the faculty.

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Q: Can I download a video from YouTube that is not openly licensed, add captions to it, and redistribute it on YouTube? The only aim was to make the video more accessible to my students.

A: There are two critical aspects to consider in discussing this matter: copyright law and accessibility law.

First from the copyright point of view, downloading a video from YouTube without the prior written consent of YouTube or the respective licensors of the content is simply not allowed. YouTube makes it clear on their Terms of Service page that content should be provided as is. They state that “You shall not download any Content unless you see a “download” or similar link displayed by YouTube on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content (See #5. Your Use of Content). Both Google (who owns YouTube) and the developer make profit from the adverts displayed on their clips, and they wouldn’t want any attempt to steer their potential viewers away.

From the accessibility perspective however, while there is some conflict between copyright law and accessibility law for online video, the general consensus is that accessibility trumps copyright infringement. That is because the temporary use of a video file for the purposes of transcription and captioning for students is generally considered fair use in copyright law. Please see this webinar exploring copyright and fair use of captioning third-party educational video. The event featured legal expert Blake Reid, Assistant Clinical Professor in Technology Policy and Telecom Law at Colorado Law:

 

If the situation is viewed from a risk management standpoint, there is a much greater risk of a lawsuit from a deaf student who is denied access to course content than there is to a lawsuit from the video’s original copyright holder over their video being captioned without permission (many accessibility experts suggested that the latter has never happened).

 

Considering these aspects, we recommend:

  1. Avoid copying the original video and redistributing it on YouTube. Keep the video private and just sharing the URL with your class. Otherwise it could be perceived as theft, and if challenged you would at least have some explaining to do.
  2. In any case, reach out to the original copyright holder. Send them the caption file along with an explanation of why they captioned the video, plus specific steps to help the person upload the caption file. Ultimately this is the best option as it results in captions on the original video, which benefits everyone who views the video, not just the faculty member’s students.
  3. If reaching out to the original copyright holder fails, then our fallback recommendation is to make the original YouTube video available in an alternative player. YouTube allows this, and encourages it via their API.  With an alternative player like the one at http://amara.org, you can add captions to the video then distribute the video to the class using the Amara URL (or embedded Amara player) rather than the YouTube URL or player. Interactive Transcripts applications, such as SpeakerText and 3PlayMedia fall into this same category – they’re supplementing the YouTube video with complementary functionality, but ultimately they’re still playing the original video on YouTube.

The fact that #3 is playing the original video on YouTube is fundamentally different than downloading and redistributing the video in a separate account on YouTube. In the second scenario, the original owner is no longer the owner. Even if they’re acknowledged as the original source, they don’t get the benefit of being credited with the extra traffic, which is important for social credibility and SEO.

The above content is generously provided by:

 

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Acknowledgement

SBCTC wishes to acknowledge those who have expertly reviewed this document:

  • Derek Edwards, Senior Counsel, Assistant Attorney General, Washington.
  • Jane Park, Project Manager, Creative Commons
  • Emma Clausen, Reference & Instruction Librarian, Pierce Community College
  • Andrea Gillaspy, Reference & Instruction Librarian, Lower Columbia College
  • Leah Hannaford, Open Education Librarian, Centralia College
  • Elena Bianco, Technical Services Librarian, Skagit Valley College
  • MaryAnn Goodwin, Dean of eLearning, Community Colleges of Spokane

Disclaimer

The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. The opinions expressed at or through this site may not reflect the opinions of the Washington State Board for Community and Technical Colleges.

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Last updated: 02 25 2016