4.2 How Copyright Laws Created the Need for Open Licensing
Michaela Willi Hooper and Marco Seiferle-Valencia
UNESCO (n.d.) defines Open Educational Resources as:
Learning, teaching and research materials in any format and medium that reside in the public domain or are under copyright that have been released under an open license, that permit no-cost access, re-use, re-purpose, adaptation and redistribution by others.
This definition is meaningful only because most creative works are automatically copyrighted as soon as they are fixed in a “tangible medium of expression” (U.S. Copyright Office, n.d.). In other words, as soon as you write an email, record a piece of music, jot a poem on a piece of paper, or film your cat doing something cute, the law says you hold the copyright to that creative work (along with any human co-creators). Under copyright, copyright holders have the exclusive rights to make and distribute copies, develop derivative works, and to perform or display works publicly. They can send takedown notices or bring lawsuits against people and institutions who use their work without permission.
All Rights Reserved vs. Copyrighted
Copyright automatically gives copyright holders many exclusive rights. Throughout this text, we will refer to this default copyright as All Rights Reserved. Why? Because open licenses, discussed later in this module, don’t eliminate copyright. Instead, they allow creators to choose the rights they want to share with others.
The first United States copyright law was enacted in 1790, based on Great Britain’s Statute of Queen Anne (1710). While copyright is intended to protect creators, it also has disadvantages. Copyright has become more restrictive over time, and, since it’s now applied automatically, many creators hold copyrights without knowing they have them. Here are some the consequences of this system.
All Rights Reserved materials and permissions may be difficult, expensive, or impossible to procure
Unless the copyright holder takes steps to mark their work, it can be difficult to determine who holds the copyright, especially when it has been reshared and revised many times. Sometimes creators have died and it’s difficult to determine who inherited their estate, or there is no contact information available for a creator. Even if you can contact the person or organization with the right to give you permission, they might not respond or deny you permission.
All Rights Reserved materials may be too expensive to access, especially for under-resourced people and communities
Publishers may also set the price too high for under-resourced people and institutions to access. If you live in Oregon, you likely have access to one or more libraries, which pay for permission, or licenses, to provide access to copyrighted digital resources like articles, music, art, and ebooks for their users. Unfortunately, not everyone has access to well-resourced libraries. College and university libraries pay for faculty and enrolled students to access academic journals and ebooks that can be prohibitively expensive for recent graduates and other people outside academia. At many institutions, students must still purchase their own textbooks. Research shows OER improve grades for all students, and especially benefit students from historically underserved backgrounds (Colvard et al., 2018).
Copyright is not always held by the creators
Copyright evolved in 18th century Europe, when authors relied on publishers to distribute their work. Today, it is still common for authors to transfer their copyright to publishers. Some authors (particularly famous ones) are compensated for their works.
Scholars, however, often write research articles and chapters for free, funded by institutions or governments. It used to be standard practice for scholars to transfer the copyright of their works to publishers, who then sell the published works back to colleges and universities via their libraries. The campaign for academics to retain their copyrights and make research available to everyone is called the open access movement.
Copyright as a Colonial Endeavor
Copyright laws represent the imposition of a Western practice of knowledge ownership, which is in conflict with many Indigenous viewpoints on knowledge and attitudes towards intellectual property ownership. While we must always avoid reductive, monolithic thinking when it comes to Native people, it is generally true that most Native and Indigenous traditions have long standing practices of oral traditions and knowledge transmission.
Western researchers may be the first ones to “fix,” or write down, traditional knowledge. In some cases, these transcriptionists have claimed ownership and failed to compensate the communities who generated the knowledge. This type of theft is facilitated by the individualistic framing of copyright laws. The World Intellectual Property Organization says,
Traditional knowledge is not so-called because of its antiquity. It is a living body of knowledge that is developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. As such, it is not easily protected by the current intellectual property system, which typically grants protection for a limited period to inventions and original works by named individuals or companies. Its living nature also means that “traditional” knowledge is not easy to define. (World Intellectual Property Organization, n.d.)
Traditional Knowledge Labels, also known as TK Labels, intend to help non-Native Institutions present and share Native belongings with culturally informed context and, sometimes, restrictions. Native nations who collaborate with Local Contexts can use TK Labels to help digital belongings have some of the correct rights and contexts that are currently missing from Western methods of copyright. It is important to note that TK Labels can express a community’s wishes for how an item is displayed or shared, but they are not legally enforceable licenses.
Many Indigenous and Native researchers in this area are currently working on developing Indigenous first knowledge systems, without colonial intervention. One example is the Respectful Terminology Project, which is an Indigenous-led effort to challenge current harmful language practices in Galleries, Archives, Libraries and Museums.
Copyright is a legal framework within imperfect and evolving social and political institutions. While copyright compliance is important, a DEI framework might also ask:
- Are there any contributors who have been left out, not acknowledged, or not compensated?
- What can we do to correct power imbalances that have enabled some people to take credit for other people’s work, traditions, and creativity?
- How do we acknowledge all contributors clearly, concisely, and consistently?
Fair use isn’t always a practical solution
There are some exceptions to copyright law, including fair use. Fair use is a legal defense against copyright infingement claims. It is built on case law and can be difficult for educators to apply. Not every instructor receives copyright training, and institutional policies vary in their level of support. Fair use generally doesn’t permit widespread, free sharing of entire works without the express permission of the copyright holder. For this, we need to look beyond “all rights reserved” content to public domain and openly licensed content.
Self-Check
Test your knowledge of copyright basics.
Licenses and Attributions
Open Content, Original
“Copyright as a Colonial Endeavor” by Marco Seiferle-Valencia and Michaela Willi Hooper is licensed under CC BY 4.0.
All other content by Michaela Willi Hooper is licensed under CC BY 4.0.
Note that I am not an attorney and cannot provide legal advice.
References
Colvard, N. B., Watson, C. E., & Park, H. (2018). The impact of open educational resources on various student success metrics. International Journal of Teaching and Learning in Higher Education, 30(2), 262–276. https://eric.ed.gov/?id=EJ1184998
UNESCO. (n.d.). Open Educational Resources. https://www.unesco.org/en/open-educational-resources
U.S. Copyright Office. (n.d.). Subject matter and scope of copyright. Copyright Law of the United States. https://www.copyright.gov/title17/92chap1.html#101
World Intellectual Property Organization. (n.d.)Traditional knowledge and intellectual property – Background brief. https://www.wipo.int/pressroom/en/briefs/tk_ip.html
Laws giving creators the exclusive rights to make and distribute copies, develop derivative works, and to perform or display works publicly. Copyright holders can bring lawsuits against people and institutions who use their work without permission.
Permission to use someone else's copyrighted work. Licenses can cost money and be restricted to a specific group of users. Many digital library materials have this type of license. Copyright holders can also give away licenses for free to the public, as is the case with Creative Commons licenses.
