Copyright in a digital world is complex. There is an inherent risk in our OCL4Ed course that our study of copyright may confuse rather than clarify at the expense of helping educators understand the benefits of Creative Commons while navigating the complexities of licence compatibilities and remix. A mOOC on copyright is not likely to rank highly on the popularity charts and I would imagine that many educators would prefer to avoid having to remember the detail of how all this copyright stuff works. In the words of McCartney and Lennon:
Living is easy with eyes closed
Misunderstanding all you see
Lyrics from Strawberry Fields for Ever by John Lenon and Paul McCartney © Sony ATV Music Publishing.
In this blog post I reference selected questions from OCL4Ed participants and a few misconceptions noted in the aggregated course feed in an attempt to clarify and offer practical suggestions for navigating the complexities of copyright in education. Usual disclaimers apply – I’m not a legal professional, so if you’re in doubt it’s best to obtain legal counsel or err on the side of conservatism.
Creative Commons does not replace copyright – it refines it
Reading a number of microblog posts in the #OCL4Ed stream, it appears that there may be a few misconceptions of how Creative Commons fits within the realm of copyright.
For instance, @Ejade posted a WEnote pointing out that copyright is enforced through the courts and asked how are breaches associated with Creative Commons licenses can be enforced. Alastair commented that “many people are worried that CC is some kind of anarchic underground movement and therefore avoid the issue“. In my work in open education in the university sector, I have also encountered some academics who perceive the “free culture” as an activist group set on undermining the traditions of the academy.
It is important to stress that Creative Commons does not replace or substitute copyright. Creative Commons provides a set of free and legally robust tools for granting permissions under the provisions of standard Copyright. Under standard copyright it is possible to transfer rights through licensing. With Creative Commons, the copyright holder retains copyright including all the protections and rights associated with copyright. Creative Commons is a licence which provides permissions in advance for downstream users regarding optional rights (decided by the copyright holder) to reuse, revise, remix, or redistribute with or without commercial restrictions.
Creative Commons operates within standard copyright and consequently the licenses are enforced through the courts. You may be interested in visiting the case law database maintained by Creative Commons international. Copyright is prerequisite knowledge for understanding Creative Commons. This is the reason why we cover copyright in some detail in the in OCL4Ed course before introducing Creative Commons.
The threshold for originality
Copyright is not international in the sense that there is a universal set of requirements and interpretations which migrate seamlessly across national boundaries. The requirements and enforcement of copyright is determined by your national copyright act. So for example, exceptions or restrictions which apply in the United States may not be applicable in your country. The Berne Convention attempts to “standardise” minimum requirements of copyright on the international stage for its signatories, however there are many aspects which are not covered under the Convention or examples where the national copyright act places additional, more onerous or more conservative interpretations over and above the minimum requirements. One example is the threshold for originality to assert copyright.
In our OCL4Ed copyright case study we highlighted that the copyright of a photograph belongs to the photographer, and asserted that the photograph of a work in the public domain belongs to the photographer. Sandy Duncan cited the Bridgeman Art Library versus Corel Corporation case in the US. The details are interesting because Corel Corporation acquired images of paintings by European masters (in the public domain) from a company which went out of business and distributed a CD with these images outside the US asserting copyright. The Bridgeman Art Library claimed that the images were digitisations of copies owned by the Library. This is a complex case involving many facets including: multiple judgements, complexities of what is copyrightable in different national jurisdictions and the fact that this federal district court decision is not a binding precedent on other federal or state courts in the US. (Remember that US copyright rulings will not apply to other jurisdictions.)
One interesting facet of the Bridgeman Art Library case is that “slavish copies” of a work may not meet the requirements for the “threshold of originality” in the US. Remember that in some countries, there is a higher requirement for originality for something to be copyrightable. In other countries, originality does not mean that the “idea” must be original but the expression of the idea in another form could be copyrightable. This is complicated by the “sweat of the brow” doctrine where skill and work is required to make the “copy” would constitute a copyrightable work, for example the skill of the photographer in getting the lighting right and post-production work in “perfecting” the image.
Note that many museums do not allow public photographs of art works in the public domain and generate revenue from selling digital images and prints of these works under copyright. The practice of copyrighting works in the public domain for financial gain is not restricted to the art world. For instance, you can purchase a commercial print copy of Mark Twain’s Adventures of Tom Sawyer which is in the public domain.
The average teacher does not have the legal expertise (nor should they) to exercise value judgements on the threshold of originality in their national jurisdictions. We believe its prudent to assume copyright of all rights reserved in these grey areas.
Assault on the public domain
Wikipedia, for example, takes a strong view that faithful reproductions of two-dimensional public domain works of art are public domain drawing on the decision of the Bridgeman Art Library case as they operate within the US. Some would argue that copyrighting exact replicas of works in the public domain is an assault on the public domain.
I’d like to share an interesting OERu experience relating to the public domain. In Session 3 of OCL4Ed we learned that the origins of copyright can be traced to the Statute of Anne enacted in 1710. In other words, there was no copyright before 1710.
When the University of Southern Queensland were developing OERu’s Introduction to Asia and the Pacific course we incorporated a stimulus activity referencing the pottery of the Lapita people which has been carbon dated to +1100 BC. The author wanted to use this image of Lapita pottery in the OERu e-learning activity which is licensed all rights reserved to a leading research university. Clearly the pottery artefact is in the public domain for two reasons: it pre-dated the existence of copyright and if it was copyrightable, the term would have expired given that the pottery is +3100 years old! The problem of course, is that the copyright of the photograph belongs to the university. I wrote to the copyright officer requesting a CC-BY or CC-BY-SA license for the image. In response I received an order form to purchase a single use license of the image. I wrote back requesting permission for a photographer from the free culture to photograph the artefact and release this under an open license. Needless to say, I did not get a response to my request.
The story has a happy ending. Through my research, I discovered that Professor Patrick Nunn, formerly from the University of the South Pacific and one of the OERu partner institutions directed the excavations at Burewa in Fiji — one of the most significant finds of Lapita Pottery. I wrote to Patrick requesting release of a few Lapita pottery photographs under open licenses. Patrick is an academic and was more than willing to share the gift of knowledge licensing a number of his photos under a CC-BY-SA license.
My question: What is the justification for publicly funded research universities to appropriate the public domain through all rights reserved copyright when they are tasked with sharing knowledge through research and teaching for the benefit of society?
The open licenses and the remix compatibility dance
John Edmonstone noted that it’s not easy to remember all the idiosyncrasies of remix compatibility among the open license alternatives particularly if you don’t work with remixing open content on a daily basis. The OCL4Ed materials are openly licensed and the OCL4Ed remix materials will remain openly accessible for referencing purposes in the future.
When working with educators who are new to open licensing, I usually recommend simplifying things by only sourcing CC-BY or CC-BY-SA resources for remixing and then applying the same license rule. Using this approach the rules are simple:
- If all the source materials are CC-BY you can re-license using the same license (or even CC-BY-SA or more restrictive license which could get more complicated.)
- If you include a CC-BY-SA resource in your mix – use the same license, that is CC-BY-SA.
Two bullets is easier to remember than all the remix compatibility options.
Alastair Creelman is an academic with extensive experience in using Creative Commons and his contributions during OCL4Ed have added considerable value in highlighting pragmatic issues educators face daily when testing the open education waters. Alastair – BIG thanks for sharing these experiences freely with the OCL4Ed 14.02 cohort. ). In something old, something new, something borrowed …, Alastair raises the practical question of whether it is permissible to reuse images with a more restrictive CC license than the license applied by the author of the text. For example, including a CC-BY-NC-SA photo in a blog post using a CC-BY license.
This question relates to what constitutes and adaptation or derivative work. The general consensus is that it is permissible to use an image with a more restrictive license than the work in which it is used with proper attribution and provided that the image can be identified as a discrete object using a different license by virtue of the attribution link and license reference.
However, my personal view is that in this scenario, images using the copyleft provision (ShareAlike) should not be altered in any way. While, for example, a CC-BY-SA image can legally be altered, the intent of the copyright holder for using the copyleft provision is not known and they may have strong views on the viral intent of the SA clause, namely that all works which use the image should also apply the SA clause. Out of respect for individuals which hold a strong view on “sharing alike”, I always presume that they would want all works which use SA images to be licensed in the same way.
Sandy Duncan remarks that “the share -alike component is reasonable but not practical where many online courses are locked behind password protected environments and therefore sharing is not possible.” Sandy correctly suggests that locking down SA materials behind a password restricts sharing. However, I must point out that there are no legal restrictions for locking SA materials behind a password and this sets the stage for a rich discussion during Session 5 which explores choosing the right license.