4 Copyright and OER

I assume that you are reading this course because you would like to create a course similar to the materials that you can find on the OpenLearn website. You therefore have a teaching purpose and are particularly interested in the use of online tuition. Hopefully you are also keen to share your teaching materials with others. But why bother creating a new OER? Surely there is so much material already available for free on the web anyway!

I would answer this in a number of ways. First: quality. You want to know that the materials that you are using yourself, or obtaining for use for others, are of high integrity; accurate and well constructed.

Second: copyright. While the copyright rules for many countries may be similar, any advice or comments given here is derived from and in the context of the UK Copyright, Designs and Patents Act 1988 (‘the Act’). 

You may be exposing yourself or your institution to legal challenge if you use third party copyright material without permission. If you use YouTube for audio or video elements, or Flickr to store, say, a collage of pictures in a Sgt. Pepper-style line-up, they will remove the material from their websites if they receive a complaint. 

The use of small extracts or amounts of third party copyright material in your OER is generally acceptable without attracting complaints from copyright holders. In the UK this is usually referred to as ‘insubstantial’. Other countries, such as the USA, may use the term ‘fair use’ and provide a wider use provision within their territories. Those that are not familiar with copyright, or lack experience in working with it, may find it difficult to judge how little to use without permission. Using insubstantial parts of works needs to be decided with both a quantitative and qualitative gauge. The following may help:

• Use no more than around 400 words from a large book (quantitative).
• Do not take the substance of any work. For example, if you’re taking quotes from a whodunit novel, do not take the part that reveals the culprit – even if only a few words (qualitative).
• Poetry is considered very qualitative, so use caution and do not take more than two lines without permission without seeking advice from someone with copyright knowledge and experience in this area.
• Music is also considered qualitative, so use caution, particularly with popular or well-known pieces – even if you’re only using a couple of  notes. Seek advice if unsure.
• Footage (film/moving images) is considered qualitative – so again, use caution. Footage is charged within the industry on a per second basis (frequently with 30-second and one-minute minimums being imposed for charging), so three or four seconds could be seen as a maximum insubstantial part.

Those that are more experienced in dealing with permissions and copyright may be able to apply some flexibility to the guidelines above, depending on each individual piece of content. There are other ‘fair dealing’ provisions in the Act (Sections 29–30) that permits use (as a defence) of copyright works, or parts, without seeking permission.