Copyright & Online Resources: It Doesn't Have To Be Complicated

This article is not an authoritative guide or legal assistance about copyright and the fair use of electronic information resources for online education, but rather provides background information and proposes a thought process for informed decisions with practical strategies and technology tools regarding them. Doing so helps promote the ethical use of resources in higher education, which can then serve as a model for students to follow both in class and later in their professional careers.

You likely have departments and professionals at your organization, such as the copyright office and resource librarians, who can assist with guidance regarding internal copyright policies and the specific details within licensing terms and agreements signed with the vendors providing your information resources. Questions or issues requiring legal advice and interpretation should always be handled by the appropriate lawyers for the subject matter.

In supporting the development of online education courses that use electronic health sciences library resources, I receive questions regarding fair use from students and faculty that are not explicitly addressed by current United States copyright law. Laws have not kept pace with rapid development in our online learning platforms where we can easily right-click a mouse and save digital images and text.

As a result, it can be challenging for educators to understand if the instructional content they are designing themselves, have acquired to modify from their colleagues, or are provided in pre-prepared courses to teach from are originals or copies. Historically, fair use was within the purview of academic faculty and educators to copy whatever they needed for their instruction until the 1976 revision of the Copyright Act, which now treats fair use as a defense strategy rather than an affirmative right. Therefore, an active case has to be made using established standards to determine and document the fair use of licensed educational resources.

Fair Use

The first question to ask is if you are actually making a copy of an online resource, or are you directing people to the original information via a hyperlink or using the sharing/embed code options provided by the content’s online location? If the latter, you are not making a copy of the original resource and there is no need to deploy a fair use defense strategy. Exercise caution as hyperlinks are subject to change and may not be considered a permanent or reliable resource, and copyrighted content could be contained within collections of online resources that are hosted by a third party without permission from the copyright holder. It is essential to use our professional expertise as educators to assess the material for indicators of this, such as copyright watermarks and source names that are not the same as where the content is located.

If a copy of licensed works is involved, rearranging the order of four factors for fair use as stated under Section 107 of the Copyright Act [1] to create the mnemonic PANE—purpose, amount, nature of the work, and economic impact [2]—and documenting your assessment meets the criteria of making a reasonable fair use defense effort.

The PANE mnemonic strategy is outlined below with some assessment dos and don’ts:

Open Educational Practices

Open educational practices (OEP) have a number of different definitions that range from a focus on the production of open educational resources (OER), which are instructional materials in the public domain or materials created and shared by authors with licenses permitting open use, to the promotion of use of OER in education; the latter is briefly discussed here.

Armellini and Nie proposed a framework for post-secondary education with four areas of open educational practice that extend well to online education [3]. Two are regarding curriculum design as the use of OER “as is” (without modification), such as articles serving as models for optimal writing, or repurposed as an enhancement, such as book chapters containing original content with revisions and content from other materials. The remaining two areas are regarding instruction, ‘as is’ for a just-in-time enhancement (such as supplemental online videos linked in online courses), or repurposed (such as open access workshop materials updated and revised to meet audience needs) in support of reflective enhancement.

There can be concerns regarding the quality of open educational resources, and it is preferable to seek repositories of them (ROERs). Several ROERs are included in this article’s recommended resources. In their literature review, Atenas and Havemann identified 10 quality indicators for ROERs that educators should watch for: featured resources, user evaluation tools, peer review, attributed authorships, resources keywords, the use of standardized metadata, multilingualism, the presence of social media tools to share content, specifications of Creative Commons licensed material (discussed in the following section on strategies), and the availability of original files and source codes [4].

Strategies for Use of Resources

Using open educational resources (OER) does not require assessment for fair use since these works are not covered by United States copyright law. Using Creative Commons resources, which are original works that have easily understood copyright licenses for reuse that are facilitated by a non-profit organization, can support open educational practices since Creative Commons works alongside copyright law [5]. It is important to remember Creative Commons works are not the same as OER, and clicking through to read the full details of Creative Commons licenses before incorporating them into online instruction is essential as some do not permit derivative works or for-profit/commercial use. Helpful resources for finding Creative Commons and OERs for online learning are included at the end of this article.

Strategies to consider using for licensed resources that are not covered by Creative Commons or open licensing include the following:

• Knowing that permission and licenses supersede the more generic baselines of fair use and copyright law. If you ask for use permission from the copyright holder or check the terms and conditions of your existing licensing agreements with information resources vendors, you will likely find these are more permissive, especially for educational use, than the standard law.
  
  
• If you are purchasing new licensed online information resources, including pre-prepared courses and training programs, or updating an existing license with a vendor, be very clear and ask at the beginning of negotiations about the use of their resources for education. Explicitly ask about use for online learning and if online instructional content can be modified; carefully review the written terms and conditions of the license, and seek any clarifications needed before signing to avoid assumptions and misunderstandings regarding their educational use later on.
  
  
• When seeking permission from a copyright holder, clearly explain your purpose in doing so. Ask exactly what you are seeking permission for, such as downloading instructional videos from a specific eBook for hosting and viewing in an online class that only currently enrolled students can access. This may involve patience and perseverance in explaining your online learning management system and authentication processes to multiple people. Be sure to document the entire process of seeking and receiving permission, especially if use is more permissive than your existing licensing agreement with a vendor.

Tools

Having technology tools integrated into the online learning and research environments students and academic faculty or educators are in, along with orientation and training in their use, helps everyone to be compliant with the appropriate use of licensed resources. If educators haven't heard of or feel confident about using the tools, the likelihood is high their students are unlikely to use them either and will resort to using the top result of internet searches to locate the information they need regardless of their appropriate licenses or sources.

Two helpful free tools for locating properly licensed resources are:

• Web browser extensions, such as Unpaywall, can direct learners to authorized open-access editions of journal articles. Unpaywall does the work to locate these articles within institutional repositories instead of a third-party website's articles that may come from questionable origins.
• Automatically authenticated resource connections, such as library links in Google Scholar and permalinks from online library catalogs, provide easy access to copyrighted online resources. Explicitly teaching faculty and students how to set up and use the Google Scholar library links for both the academic and local public libraries they have access to is an essential part of orientation since it is a commonly used research starting point.

Conclusion and Resources

Questions about copyright are ultimately answered as “yes,” “no,” and “it depends.” [5] By using the PANE defense to determine if fair use can apply to copyrighted resources, an informed and documented rationale helps to answer these questions. Supporting open educational practices by using OER or Creative Commons instructional materials for online courses, along with deploying strategies for seeking copyright holder permission and checking details of licensed materials for online learning, means responsible educational use is supported. By using technology tools that integrate links to both licensed and OER in the online learning platforms students use, we model the ethical use of original sources and further support the adoption of open educational practices.    

Select resources in support of these areas include the following:

• Creative Commons resources search
• Setting up library links with Google Scholar
• Mason OER Metafinder (OER search engine)
• MERLOT open educational resources
• Openly Available Sources Integrated Search (OASIS)
• Open Education Resources (OER) Commons
• Open Course Library
• Teaching Commons
• Unglue.it
• Open-i (Open Access Biomedical Image Search Engine)
• Pexels free stock photos
• Pixabay free stock photos
• Unpaywall open access articles browser extension

References

[1] U. S. Copyright Office. More information on fair use.

[2] Window PANE gauge for a fair use analysis. CT Fair Use Handout. Northern Kentucky University.

[3] Armellini, A., and Nie, M. Open educational practices for curriculum enhancement, Open Learning: The Journal of Open, Distance and e-Learning 28, 1 (2013), 7-20.

[4] Atenas, J., and Havemann, L. Questions of quality in repositories of open educational resources: a literature review. Research in Learning Technology 22 (2014). http://dx.doi.org/10.3402/rlt.v22.20889

[5] Frederiksen, L. The Copyright Librarian: A practical handbook. Chandos Publishing, Waltham, MA, 2016.

About the Author

Nicole Dettmar, MSIS, M.S., is an associate librarian at the University of Washington (UW) Health Sciences Library (HSL). Dettmar has worked at HSL since 2008 with curriculum design and at UW since 1998, previously for UW Medicine. Her B.A. in social sciences and communication is also from UW and her graduate degrees are from the University of North Texas in information sciences and learning technologies. Her professional research interests include communities of practice, instructional design, active learning, and effective distance education.