Appendix Five: Beyond Fair Use – More Good News About Copyright for OER

In the Code of Best Practices and in the previous appendices, we have addressed in some depth how to understand and apply fair use and how to understand the limitations and exceptions to copyright law, such as fair dealing, that apply in other jurisdictions. However, fair use is not the only aspect of U.S. copyright law, and of intellectual property more broadly, that can apply when creating open educational resources. Without attempting to be comprehensive, we offer below a range of information about low-risk practices to help lighten your burden of legal compliance. These items deal with copyright doctrines other than fair use that may apply to potential OER inserts, as well as to some other areas of IP law about which members of the OER community have expressed concern.

Our goal here is to prune away at various areas of potential concern, indicating situations in which your review might never even reach a weighing of fair use – starting with situations where there is less to copyright than meets the eye. These include situations in which copyright might seem to apply to a source work but actually doesn’t: where, that is, the work is in the public domain.

The Public Domain: Materials and Content not Protected by Copyright

In making a first pass through plans for an OER project, you may identify possibly copyrighted works (images, texts, compositions) that you might like to incorporate as inserts in whole or part. It turns out that some of these works are fair game because they don’t enjoy any copyright protection, for one or more reasons.

  • You can always use works that have been created on the job by U.S. government employees: NASA videos, White House webpages, Congressional Research Service reports, WPA photographs, opinions by federal judges, and many more are in the public domain. Practically, that means that neither the purpose for which you use such a work, nor the source from which you obtained it, is relevant. This rule (expressed in 17 USC Sec. 105) puts a world of useful information at the fingertips of teachers and learners. However, this rule has some limits, including:
    • Works commissioned by the U.S. government from third parties aren’t covered by Sec. 105, because they are created by private contractors rather than regular employees;
    • Some materials created by hybrid agencies, like the Smithsonian Institution, aren’t covered;
    • Likewise, state and local government materials, from the texts of regulations to photographs for tourism campaigns, don’t fall under the rule, and may be copyrighted, depending on the jurisdiction; and (of course)
    • The same is true of material sourced to foreign governments.
    • As a practical matter, it’s also not safe to assume that everything found in a federal repository (like private correspondence in the National Archives or a presidential library) or published in a federal periodical (like news stories that have been read into the Congressional Record) is free to use – though much of it is.

On the other hand, it’s important to remember that all kinds and categories of government-related but nevertheless copyrighted works are potentially subject to fair use!

  • More useful material than you might immediately think is available because it has aged (gracefully or not) into the U.S. public domain. And, thanks to the recent congressional decision not to extend copyright term yet again, there will be more such material coming every year. January 1, 2021 liberated both “The Great Gatsby” and, ironically, Irving Berlin’s “Always”). Here is some fairly conservative guidance about taking advantage of this situation:
    • Right now, If something was published (not just created) in the United States before 1926 (meaning that it was offered for sale or given away to consumers), it’s safe to conclude that it is in the public domain; and each year on January 1, another year’s worth of material is added;
    • By contrast, older works that weren’t published when they were created, and later were made available between 1978 and 2002, may be protected through 2047; although,
    • If we put the contents of the previous pesky category aside, it’s otherwise safe to assume that a work – domestic or foreign – is in the public domain if all the authors have been dead for at least 70 years; or
    • If it was created exclusively by one or more U.S. nationals, and
      • If it was published before March 1, 1989, and never been registered for with the Copyright Office; or
      • If it was published before 1963 and the copyright was not renewed (again, this applies only to work by U.S. nationals).

And if you have any doubts about whether a work has been registered or renewed, a reference librarian can show you how to find out online.

  • Public domain works are always free to use as regards copyright law. But sometimes (especially where unpublished works are concerned) it may be hard to get your hands on a source copy. Of course, if you need the cooperation of a library, museum, or other institution where the original resides, that institution can dictate terms of use and restrict what you would otherwise be able to do as a condition of access. But if you have access to a transcription or reproduction from a different source, you don’t need to negotiate with the holder. In addition, many memory institutions assert copyright in their own photographs or digital records of old objects in their collections, even those that circulate widely. But at least where essentially verbatim reproductions of flat objects (images or texts on paper, photographs, paintings, etc.) are concerned, those claims have little merit. Photos of three- dimensional objects (like sculptures) are more likely to enjoy some level of copyright protection. Again, however, such rights are always subject to fair use.
  • Another category of public domain works that you can use freely and in their entirety, without needing to make any more detailed inquiry: works that consist entirely of data or other factual information arranged in common or well-established ways – a chronological list of reigning monarchs, a table of rainfall statistics with the date of the observations along one axis and locations on the other, and so forth, or a pie chart of government expenditures. This is because there is a rule denying copyright protection to data, including data gathering and analysis, and to simple, unoriginal methods of presentation and organization. (Indeed, the law bars copyright in facts of all kinds – even if they have been discovered through the exercise of skill and effort – about which more to follow.) To reiterate – the fact that a simple data set (or representation of data) is in the public domain applies with full force to newly created content as well as historical data.

Built-in Constraints on the Scope of Copyright

Copyright doctrine also makes it clear that even where a work enjoys copyright protection, not everything found in it can be protected – in other words, the very rules that extend protection are themselves subject to certain intentional constraints on the scope of copyright. In fact, copyrighted sources include more available material than might first be imagined, and a good place to start in assessing the availability of particular content from copyrighted sources is by asking whether the elements you might like to use are actually subject to protection.

Section 102(b) of the Copyright Act puts it thus: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” In effect, that provision encapsulates the so-called “idea-expression” distinction – the proposition that underlying discoveries and insights are just too fundamentally important to be walled off, even though the specific choices about how to present those “ideas” using words, sounds, or visual elements may qualify for protection.

Some applications of this principle are straightforward. Thus, it’s fine if a would-be OER maker is inspired by a commercial textbook author’s college-level survey of American History from a feminist perspective to prepare a set of open materials along similar lines. Oftentimes, though, the application is a bit more complicated. Suppose, for example, that the author of an OER intended to familiarize nursing students with new medical technology wanted to quote at some length from the manufacturer’s operating instructions of a particular imaging device – a work that is obviously rich in unprotected factual elements, but which also may contain some arguably copyrightable choices about how to convey a particular bit of practical information. This is where the so-called “merger” doctrine might come into play. It states that in situations where there are only a limited number of useful ways in which it is reasonable to express a given idea, none of them should be able to enjoy protection! Obviously, this ancillary doctrine makes the idea/expression distinction easier to work with in practical terms.

Likewise, if an OER maker wanted to copy a simple diagram about cell differentiation, borrowing the standard if somewhat arbitrary convention of representing liver cells as purple trapezoids, blood cells as red circles, and so forth, the “scènes à faire” doctrine would assure that these simple design choices are free to imitate, copyright notwithstanding. This doctrine also applies where, even if one identifiable person is the first author to come up with an idea, that creative choice can become so intertwined with the kind of story being told that it is unprotectable. So the first science fiction author who imagined and described the first contact, “take me to your leader” trope in science fiction, cannot exclude others from using that plot line in subsequent works.

And perhaps the most important implication of the idea/expression distinction for OER makers can be stated as follows: When drawing on source material that enjoys only “thin” copyright because it contains high proportions of unprotected content (whether a scientific diagram or the factual narrative of a famous battle), it is generally easy to work around the protected elements by simply modifying the minor creative elements.

Another, rather different, example of a built-in limit on copyright scope is found in Section 120(d), which provides that buildings that can be seen from public areas can be filmed and reproduced for any purpose. Although there has been copyright in architectural works in the United States since 1990, the Copyright Act includes a special exemption for this kind of depiction. That doesn’t mean, of course, that you’re necessarily free to use someone else’s photograph of a particular building – or to depict a public art piece that stands in front of it. Nevertheless (and once again), fair use may apply in such instances.

Of course, this discussion isn’t exhaustive – there are others that apply to areas of practice adjacent to OER making and distribution, such as classroom teaching (for which exceptions are provided in Section 110 of the Copyright Act) and making materials available to the visually impaired (Section 121). These don’t provide a basis for incorporating unlicensed copyrighted inserts into OER in their own right, but they may enable or enrich teaching practice in specific situations.

And before we leave copyright, one more topic may be in order: Why OER makers can (and sometimes do) get carried away in imagining potential exposure to liability when they copy inserts from protected source materials – even when they are convinced that fair use applies. Sometimes conscientious educators worry that even though their own use of copyrighted material may be justified, they could be held responsible for someone else’s less scrupulous activities: If a digital image of an artwork is incorporated in an OER, a bad actor might take and end up using it to make a tasteless novelty shower curtain! Happily, though, as the Supreme Court pointed out in footnote 12 of MGM Studios vs. Grokser, in 2005 – absent some very special circumstances – this “misuse” is the sole responsibility of the downstream infringer.

And what if it turns out that the OER maker was wrong about the fair use justification for a particular insert – acting in good faith, but mistaken nonetheless? Happily, at least for OER makers who work at libraries, archives and nonprofit educational institutions, Section 504(c) of the Copyright Act provides a significant buffer against potential liability in such situations – not a free pass or “excuse,” but a broad enough carveout to make a lawsuit look pretty unattractive to most copyright owners.

What About Other Areas of Intellectual Property? Trademark Law Considered

In interviews and workshops, members of the OER communities frequently expressed concern about violating trademark law, and occasionally raised questions about patent law. In both cases, there is almost no overlap between the commercial activities that these bodies of law regulate and the educational domain of OER.

Trademark protects brand owners against a certain range of commercial misrepresentations. For example, it limits coffee companies other than Starbucks from using round, green, mermaid logos as their own and it can lead to litigation battles over “swoosh”-like markings on sneakers other than Nike. So it might be a mistake to use a variant on the name of a commercial textbook publisher to label an OER, even if it is done tongue-in-cheek. On the other hand, most conceivable uses of trademarks in OER cannot trigger concerns of that kind because they aren’t “uses in commerce” – designed to sell or promote or engage customers.

While Hollywood movies and reality TV may choose to avoid using unauthorized trademarks on screen, out of deference to the lively commerce in “product and brand placement,” depicting trademarked names and logos for illustration, critique, or description in learning materials are not the types of uses to which trademark applies.

Thus, OER makers should feel confident when:

  • Describing places, objects, and experiences in the real world, or in an imagined one;
  • Encouraging students to do the same, and publicly sharing or displaying that work;
  • Discussing or evaluating history or current events;
  • Including pictures that include trademarked names and logos, if otherwise permitted by copyright law;
  • Using trademarks in the context of providing realistic examples or question prompts; or
  • Directly examining marketing or branding

OER makers should avoid, when possible:

  • Using trademarks in a way that might suggest sponsorship or branding on a cover of a resource, or in its naming or marketing;
  • Choosing trademarks related to only a single brand, when creating new examples and hypotheticals; and
  • Using visual marks for strictly decorative purposes unrelated to the pedagogical purposes of the OER.

What About Patent Law?

Just as trademark law operates only in a narrow range of commercial practices, the same is true of patent law – if you aren’t “practicing” a patented invention or directly encouraging others to do so, you are not operating within the area that patent law controls. Patent law controls the right to make, sell, or use an invention, not to depict, describe, or teach about it. The only theoretical risk would be liability if you were encouraging others to infringe a patent you know exists – a highly unlikely case in teaching materials. Furthermore, remedies would be available only if a patent owner suffered meaningful financial harm as a result, making it even harder to imagine how teaching materials could give rise to a patent suit.

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Code of Best Practices in Fair Use for Open Educational Resources by Meredith Jacob, Peter Jaszi, Prudence S. Adler, and William Cross is licensed under a Creative Commons Attribution 4.0 International License, except where otherwise noted.

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