Open Access and Scholarly Publishing @ UNO

To understand Creative Commons and the licenses you need to have a basic understanding of copyright.   

Copyright is a set of exclusive rights granted to a creator preventing others from copying, distributing, publicly performing, adapting, or doing almost anything else except read/view/listen to a work without the copyright holder's expressed permission. Its purpose is to protect the creator’s rights for a certain period and is granted in our constitution. Copyright, in the United States, is automatic from the moment something original is set in a tangible form that can be perceived by other humans or machines, meaning the moment is written down, recorded, performed for others, etc.  Copyright lasts a long time and is balanced between a holder's intellectual property rights and public interests. These public interest exceptions are for parody, criticism, and for a disability as well as anything that falls under Fair Use or the TEACH Act.  Copyright is also limited since you cannot copyright facts, figures, or ideas - just the expressions of those things.  It also doesn't cover intellectual property that is better protected by patent or trademark law (think inventions or branding).  

In the United States we operate under the Copyright Extension Act of 1998.  This is sometimes called the Mickey Mouse Protection Act since it was enacted right before Disney's Steamboat Willie character entered the public domain.   Basically, the new law extended copyright from the life of the creator plus 50 years to the life of the creator plus 70 years. Most copyright holders are individuals - such as a painter or writer - but corporations and anonymous works also receive copyright protection.  For corporations and anonymous or pseudonymous work the copyright term is from 95 years after first publication (made available to the public) or 120 years after it was created.  Once the copyright term ends, work enters the public domain. 

A few terms to clarify: 

Public Domain - is anything that is not covered by copyright.  Some works, such as government documents, automatically enter the public domain once they are created since they are ineligible for copyright protection.  But for most works, it only enters the public domain when its copyright ends - that life of creator plus 70 years term.  So as of January 1, 2022, any work from 1926 or sound recording from 1923 or before entered the public domain - this included the first Winnie-the-Pooh book by A. A. Milne.  

Fair Use - is an exception to copyright that allows others to use copyrighted work without having to seek permission. There are four factors that need to be considered when determining if something falls under fair use.  First, the purpose and character of the use needs to be considered.  Next, is the nature of the copyrighted work.  The amount of the copyrighted work is being used also must be considered.  And finally, the effect the reuse has on the potential market of the copyrighted work. As you can tell, fair use is vague.  To complicate things further, every application of fair use is individually assessed, and the factors may not be equally weighted or follow a previous example of fair use. When reusing copyrighted work under fair use it is the best practice to use the smallest amount needed to complete your needs.  

TEACH Act – the Technology, Education, and Copyright Harmonization Act of 2002 was a revision to the Copyright Extension Act that enables educators to use copyrighted material for distance education with certain restrictions.  Essentially the TEACH Act allows non-profit institutions’ educators and students in an online platform to display, perform, or copy copyrighted material to better mimic the experiences of the in-person classroom in the online classroom as long as the materials are restricted to those online students without having to seek permission or pay a licensing fee or royalties.  The TEACH Act is very limited in its exceptions to copyright and has many restrictions and guidelines that must be met. If all restrictions and guidelines cannot be met fair use may still allow use in a distance learning setting.  

"Copyright and Fair Use" by Purdue Libraries is licensed under CC BY 4.0

Sources:

Butler, R. P. (2014). Copyright for Academic Librarians and Professionals. ALA Editions: Chicago.  

"Copyright Basics" by Creative Commons is licensed under CC BY 4.0 

"The Story of Creative Commons" by Creative Commons is licensed under CC BY 4.0 

Creative Commons was born from the tension between an outdated copyright legal system and the internet.   

The Copyright Extension Act that extended copyright from the life of the creator plus 50 years to the life of the creator plus 70 years seemed like a very long time for copyright. A Standford law professor, Lawrence Lessig, thought the new copyright law was unconstitutional.  He represented the lead petitioner in the lawsuit Eldred verse Ashcroft. Eric Eldred, a web publisher who made a career of using the internet to make public domain works available to the world.  Defending the law was John Ashcroft, the US Attorney General at that time. This lawsuit challenged that the new law exceeded Congress’s authority granted in the constitution to establish copyright and violated the First Amendment. The lawsuit made it to the Supreme Court that rejected Eldred’s challenge claim in a 7-2 decision. 

This led to the creation of Creative Commons to help resolve that tension between the internet, which makes global sharing, access, and collaboration possible, and copyright, which restricts sharing. Lessig and a few other interested parties form Creative Commons the organization, licenses, and movement in hopes to create a way for those creators that want to freely share and make their work accessible without copyright getting in the way.  

In 2002 the Creative Commons Licenses were published as a set of legal tools that allow creators choices on how to share their work, retain rights, and work within copyright. Creative Commons (CC) licenses that are stewarded by the CC Organization are public licenses that are free for creators to use, and they directly tell users how they are allowed to use a copyrighted work without seeking the creator’s permission. Today there are around 2 billion works utilizing CC licenses across 9 million websites and are recognized and adopted by multiple governments, institutions, and individuals.  

The goal of Creative Commons is to advance policies mandating Open Access for all publicly funded educational resources, research and data. The licenses assist in accomplishing these goals but working within copyright to make materials more accessible and allowing users to know how they can use the materials. The organization focuses on advocacy, innovation, and capacity building to help make work open and accessible.

"Creative Commons Background" by Jennie Tobler-Gaston for The University of Nebraska at Omaha is licensed under CC BY-NC 4.0

Sources:  

"The Story of Creative Commons”  by Creative Commons. CC BY 4.0.  

“Creative Commons Today “ by Creative Commons. CC BY 4.0.  

Hull, G. P. (2009). Eldred V. Ashcroft. The First Amendment Encyclopedia.  https://www.mtsu.edu/first-amendment/article/252/eldred-v-ashcroft  

Justia.(n.d.). Eldred v. Ashcroft, 537 U.S. 186 (2003). Justia: U.S. Supreme Court. https://supreme.justia.com/cases/federal/us/537/186/  

U.S. Const. art. I, § 8. 

It is important to note for the licenses that include the NC element that this applies to the use and not the user.  So, a for-profit company can use the work if they are not profiting from that use.  Likewise, a non-profit company cannot take a work with this element in its license and use it in a way that creates profit.  An example of the above infographic is licensed under the Creative Commons Attribution Non-Commercial license.  A non-profit college cannot take this infographic, print it out, and sell it as that violates the license.  On the other hand, Taylor and Francis, a for profit company, can take the infographic and post it on their website as information to help authors understand the licenses they can apply to their work when they publish open access.   

Source: 

"Anatomy of a CC License” by Creative Commons. CC BY 4.0. 

Collections and remixes can seem complicated under Creative Commons.  

Collections are defined as a compilation of different works combined and arranged together while keeping them organized as distinct and separate objects. A good example of a collection would be a collection of poetry or a collection of essays by different authors. When you create a collection, you must provide attribution and license information for each separate work so that others using your collection know how they are able to use the work. In a collection the copyright you own is to the selection of work and the arrangement and you can issue a Creative Commons license to this. You do not own the copyright to each individual work, hence why it needs the attribution and licensing information to accompany it. 

One of the best ways to provide attribution and licensing information is to use the TALS (Title, Author, License, Source) format. This format meets the appropriate attribution requirements as part of the terms of the Creative Commons license.  

When you create a collection, you can use any work that is in the public domain or any of the six Creative Commons licenses if you provide appropriate citation and do not make changes. Under these conditions you can place any of the Creative Commons licenses to your work since you are not making changes and already providing the appropriate citations for the individual work.  

Remixes are what Creative Commons calls adaptations or derivatives. This is work based on one or more pre-existing works that brings new and original expression making a whole new work. In a remix you cannot necessarily tell where one work ends, and another begins. Collections are not remixes since you can identify each individual work. Remixes are not making corrections to things like grammar or spelling, they are not changing the format like taking a Word Document and converting it into a PDF. Something that would be considered a remix is a translation. Another example of a remix is a new song that samples other songs within it – like Taylor Swift’s song “Look What You Made Me Do” that uses the melody from Right Said Fred’s song “I’m Too Sexy” or Eminem’s song “Sing for the Moment” that samples “Dream On” by Aerosmith.  

Licensing a remix is simple when you work with only one work since you only must consider the terms of the license of that work. When you start to remix more than one it gets more complicated. First, you need to know what you can remix together. Any license that contains the ND (No Derivatives) element cannot be publicly remixed at all – you can remix for your own person use but can never share that work with someone else making it public – you also cannot Creative Commons license this work since your remix is not for public use. You also must consider which Creative Commons licenses are compatible with other licenses. The chart below was created by Creative Commons and is a great illustration of which licenses are compatible with each other. To use the chart, you find one work on the left of the chart and the second along the top – if there intersect with a checkmark then the two works can be remixed together. It can be a bit confusing with the Share-Alike licenses, just remember that a CC BY SA must be shared under CC BY SA and CC BY NC SA must be shared under CC BY NC SA. Unlike a collection, when you license your remix it’s best practice to incorporate the elements of the licenses of the work you used to prevent others that use your work from inadvertently violating the original works license. You also must indicate in your license that your work is a remix, and it is best practice to link back to the original work. 

CC License Compatibility Chart / CC BY 4.0

Sources:

"Choosing and Applying a CC License" by Creative Commons is licensed under CC BY 4.0 

"Finding and Reusing CC-Licensed Work" by Creative Commons is licensed under CC BY 4.0 

"Remixing CC-Licensed Work" by Creative Commons is licensed under CC BY 4.0 

"Things to Consider after CC Licensing" by Creative Commons is licensed under CC BY 4.0 

To cite someone’s Creative Commons licensed work it is best to use the Title, Author, Source and License (TASL). Using this format ensures that you meet the terms of the licenses in terms of attribution. For example, this guide should be cited as Open Access and Scholarly Publishing @ UNO: Creative Commons by Jennie Tobler-Gaston for the University of Nebraska at Omaha available at https://libguides.unomaha.edu/openaccess/creativecommons licensed under CC BY-NC 4.0 https://creativecommons.org/licenses/by-nc/4.0/ You can also hyperlink the title with the https link as well as the license to its deed.  That would look like this: "Open Access and Scholarly Publishing @ UNO: Creative Commons" by Jennie Tobler-Gaston for the, University of Nebraska at Omaha is licensed under CC BY-NC 4.0 

There are a couple of ways you can apply a Creative Commons License to your work.  

First, you can simply indicate on your work which Creative Commons license you are applying to that work. You can make this statement where a copyright notice would generally be located, such as a footer, title page, end of the work, or in the description. Creative Commons also recommends linking to the relevant Creative Commons license deed on their website so users can read the terms of the license. Creative Commons also has visual license images you can place on your work to indicate the license. It is best to follow the TASL (Title, Author, Source, License) when you place the license on your work to help others know how to attribute to your properly.  

Another way is to use the Creative Commons website’s “Choose a license” tool linked below. You simply answer a couple of questions, choose where you want to fill in additional information to help others attribute to you, and then can copy and paste the resulting license. Open Washington also created a helpful attribution builder that you fill in the appropriate blanks and it builds the license for you – the link to this builder is below. 

If you are licensing a collection or remix there is a little bit more that you need to do to properly license your work.  

For a collection, you need to indicate each individual work’s license or copyright, so that those using the work know how they are allowed to use that work. The part of the collection that you own the copyright for and can place a Creative Commons license on is the selection and arrangement of the work. To place a license on your work you will follow the above steps and add a statement like “except where indicated” so that others know the license for each work is not trumped by your license.  

For a remix you must consider the works that you use to create the remix. When creating your license, you need to indicate that your work is based on someone else’s work. You also must take into consideration the license on that work. If you are using a work that has a CC BY NC SA license then you have to share the remix under that license, and if you use work that is licensed under CC BY SA you must share your remix under that license. It is best practice to incorporate the same elements into your license as the work you are using. Remember from the above section that not all work can be remixed together – so make sure you are following those tips above. Creative Commons created this helpful chart to help you select an appropriate license for your work. To use the chart, find the most restrictive license that you used in your remix along the left and find a green box along the row that best meets your licensing goal. Then you place that license on your work following the same steps as above.  Although the yellow boxes are technically permissible, they are not recommended since it can cause problems with those using your work later. The grey boxes are not permissible licenses.

"CC Adapters License Chart " by Creative Commons is licensed under CC BY 4.0

"How to add a Creative Commons license to your wrok" by Kingsborough E-Learning is licensed under CC BY 4.0

Sources:  

"Choosing and Applying a CC License" by Creative Commons is licensed under CC BY 4.0 

"Finding and Reusing CC-Licensed Work" by Creative Commons is licensed under CC BY 4.0 

"Remixing CC-Licensed Work" by Creative Commons is licensed under CC BY 4.0 

"Things to Consider after CC Licensing" by Creative Commons is licensed under CC BY 4.0 

What is the relationship between Open Access, Open Educational Resources, and Creative Commons? 

Paul West created this graphic that illustrates the relationship between Free Cultural Works, Open Educational Resources (OER), and Open Access and the copyright and open license that apply. Free Cultural works are expressions or works that can be freely studied, copied, used, or modified by anyone for any purpose.  These are works in the public domain, have the Creative Commons Zero public domain dedication, or are licensed under Creative Commons Attribution or Creative Commons Attribution Share Alike licenses.  This is the smallest subset within open access. All free cultural works fall within Open Educational Resources and Open Access – but not all OER or Open Access are part of free cultural works. Open Educational Resources is the next subset – it includes more than free cultural works but not as much as open access. Open Educational Resources is any work that is in the public domain, has the Creative Commons zero public domain dedication and any open license that allows for remixes, adaptations, and derivative works – so for Creative Commons this is any of the licenses that does not have the No Derivatives element.  So why is this?  It goes back to the 5Rs that define OER – revising and remixing are important aspects of OER so that educators and students can tailor their education and meet learning objectives.   Finally, Open Access is anything in the public domain, anything with a Creative Commons Zero Public Domain dedication, and anything that is openly licensed – so this includes all the creative commons licenses. 

So how does creative commons relate to Open Access and Open Educational Resources. It is simple Creative Commons licenses tell users – including learners and educators – up front how work can be legally used.  Creative Commons simplifies the process.  When a user sees a Creative Commons license, they know right away how they can use the work. An educator will know if they can use it to create an Open Educational Resource or not.  Using Creative Commons licenses for your work helps to make your work open and accessible.  It supports the open access movement and help to make knowledge accessible to all.  

"Terms that overlap the licenses" by Paul West is licensed under CC BY 4.0 / A derivative from the original work

Sources: 

“Clarification of Free Cultural Works, Open Educational Resources and Open Access” by Paul G. West, CC BY 4.0 

"Finding, Evaluating, and Adapting Resources" by Creative Commons is licensed under CC BY 4.0 

"OER, Open Textbooks, and Open Courses" by Creative Commons is licensed under CC BY 4.0