Copyright and open licensing

Have you ever written something original of your own? Do you realise that you own the copyright to everything that you write? While the answer to both questions may be yes for many, there may be many unanswered questions related to copyright for you while writing educational materials. Knowledge of copyright is essential for everyone who develops learning materials or is in the profession of writing. Not knowing your rights or not knowing about copyright may result in copyright infringement by you due to lack of knowledge. Especially with the emergence of OER, understanding of copyright has become important, as you can use learning materials produced by others and made available under an open licence.

Copyright and open licensing

Copyright is a legal term describing the rights given to creators for their literary or artistic work. The kinds of work covered by copyright are very diverse. They include most of the content contained in teaching and learning material. The work means an explicit description or expression of an idea and not just ideas. The law only protects the specific and original expression of ideas.

Copyright is a form of intellectual property, applicable to any expressed representation of a creative work. The rights that copyright reserves include control over reproduction, derivative works, distribution, public performance, and "moral rights" such as attribution.

Copyright is automatic; as soon as there is a record in any form of the work created (e.g. written down or recorded), copyright comes into effect. The author or creator of the work is automatically the owner and has the exclusive right to reproduce, distribute, perform, display, license, and to prepare derivative works based on the copyrighted work. The line for anyone else to cross copyright exceptions and use somebody else's work (for quotes, for example) is, unfortunately, very blurred. In most cases, the only option is to contact the right owner and ask for permission.

Normally ownership of the intellectual property of an article or book resides with the author except for those circumstances where the author’s employer claims ownership under conditions of employment. This may be the case where teachers are employed by Universities to write learning content. However, largely works for hire are handled differently in different institutions.

The existing copyright licensing system is problematic for educators. It is very restrictive and legally limits what resources a teacher can use in the classroom and that a student can use to support learning and demonstrate competence. It was to meet this need that the concept of OER emerged, a concept made possible by the creation of alternative open licensing systems. In his book Free Culture: How big media uses technology and the law to lock down culture and control creativity, Lawrence Lessig argues that the default "© copyright all rights reserved" (applicable in most countries) contradicts the original purpose of copyright: to promote progress in science and the useful arts – a public good. The purpose is not to enrich publishers or authors, or to grant them undue influence on development and distribution of culture.

Copyright and fair dealing (fair use in the USA)

Copyright does not prohibit all copying or replication. In the United States, the fair use doctrine, codified by the Copyright Act of 1976 as 17 U.S.C. Section 107, permits some copying and distribution without permission of the copyright holder or payment to same. The statute does not clearly define fair use, but instead gives four non-exclusive factors to consider in a fair use analysis. Those factors are:

1. The purpose and character of one's use;
2. The nature of the copyrighted work;
3. What amount and proportion of the whole work was taken; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

In the United Kingdom and many other Commonwealth countries, a similar notion of fair dealing was established by the courts or through legislation.

Although copyright law varies by jurisdiction, there is generally a clause that makes special permission for 'fair use' or 'fair dealing' of a work. Normally, this allows a written work, for example, to be copied for the purpose of private study, research, book review, reporting, and so on. Fair use does not give permission to use copyrighted materials in full. Moreover, the extent of use is limited, and not clear, which can lead to litigation.

Resources

South Africa's Copyright Act

Full text of the Berne Convention

Signatories of the Berne Convention

UNESCO. 1981. The ABC of copyright. Paris: UNESCO.

World Intellectual Property Organization (WIPO)

Trade-related aspects of intellectual property rights (TRIPS)