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As discussed in Open Content: Licensing, Attribution, and Reuse, the licenses of our source material can affect the licenses we can use when we release our remixed work. At times, there will be potential conflicts that need to be addressed. Unlike traditional copyright, where our options are limited by the whims and decisions of the copyright holder, Creative Commons licensing provides authors with more flexibility and choice.
With some thought and planning, licensing issues can be relegated to just another step in the process of authoring open content.
If you come across a situation where you are looking at a licensing conflict that appears insurmountable, you have a few other options:
- Contact the license holder and ask permission; or
- Fair Use; or
- Curation; or
- Multiple licenses covering components within a resource; or
- Write your own.
Frequently, contacting the license holder and asking for permission will be all that's needed. In many cases, the original author wanted to have some degree of control over where there work will be reused, and are open to allowing it to be incorporated into a derivative work. When we have asked authors to use their work under a different license, we have written a brief email describing our project, how the piece will be used, and why the piece is important within the project. Additionally, we let the author know that we will attribute them, and ask if there is a specific way that want to be recognized as the original creator.
Fair Use is a second option; Fair Use is part of US Copyright Law; there are also some international parallels. The concept of fair use defines a set of conditions under which a portion of a work can be reused or remixed within a new derivative work. This video provides more information on Fair Use. The short version: using information within an educational setting is widely protected under Fair Use.
If Fair Use is not a fit for your specific situation, you can also incorporate work by curating external sources. In this context, "curation" includes a description of how the external resource fits into your work, along with a link to the resource (or, for information not on the web, instructions on how to access the resource).
Using multiple licenses is a third option; while this is the most complex of all options, it does allow for reuse of content under different licenses. When a work uses more than one license, individual components within the work retain their original license, while the bulk of the new work is licensed under a different license. As one example to illustrate when this is a viable approach, if an image under a No Derivatives license is reused in its original format, the rest of the work can be released under a different license while the image retains its original ND license.
The final option covered here is to create your own resource. If none of the options discussed so far work, creating your own new work and releasing it under a Creative Commons license is always a viable option.
Through the options described above, many external resources can be incorporated into open content without infringing upon the rights of the original authors. Attribution and transparency, discussed later in this post, provide additional ways that we can safely and ethically reuse existing content within open educational resources.
One of the fears we hear repeatedly about adopting open content is the fear that it can lead to legal action for infringing on the rights of copyright holders. As with every fear, it helps to temper the concern with some reality.
The reality is that large companies use the threat of a lawsuit as a means of chilling competition. However, the likelihood of that happening is incredibly small, and it becomes even smaller when we use the steps described in this post to make sure that we are respecting the licenses that creators put on their work.
By being completely transparent about the source material we use, by using proper attribution, and by making an intentional effort to use and support open content creation efforts, we minimize any risk even further. The companies and organizations looking to sue are concerned about the long term prospects of their business model, and they should be. The goal of open content, however, is not to ruin the textbook industry in its current form - while that might happen, that's a secondary effect. The goal of open content is to support teachers and learners working together to create the best learning process possible. Content plays a role in that, but, the process of creating and reusing open content becomes more valuable than the actual content.
When discussing open content, many people become focused on the "content" rather than the "open." By being transparent about our sources, our methods, and our goals, we can provide a clear roadmap of how we got to a specific piece of content. In most cases where the author of a piece of work has a question about how their work is being used, they will ask that the work be removed, or they will ask for more information. In these situations, being fully transparent about how we created the work will help demonstrate our intent. This is not a blanket protection against legal action, but given that (in the US, anyways) anyone can sue anyone for any reason, it's difficult to get that blanket protection whether we use open content or not.
Being fully transparent in how we source and create open content, however, helps illustrate the process by which more people can benefit from open content. It's also a stark contrast to traditional textbook companies, where various interest groups vet and make recommendations to textbooks prior to publication. Transparency offers demonstrable evidence of how our work came into existence.