VIVA acknowledges that open content does not always exist and sometimes something under copyright would be the perfect addition to your work. In these cases, it’s important to understand how you can legally include the content in your work as it is your responsibility to ensure that all material in an OER— whether it be newly created or modified, such as images, data, or multimedia — does not infringe or induce the infringement of any third-party copyrights.

Considerations for using copyrighted content

• Many sources contain items that range in user permissions from no copyright (e.g., in the public domain) to CC licenses to all rights reserved. Make it your practice to check every resource’s license or permissions before adding it to your work.
• If you do not see a license explicitly mentioned on or alongside the work, assume it is under traditional, all rights reserved copyright. Don’t assume that any item posted on the internet is free or free to use.
  • If the copyright notice and statement of rights aren’t immediately apparent on a website, look for this information on web pages marked as “Terms and Conditions,” “Permissions,” etc.
  • Don’t assume that an old image or text found online is in the public domain. It might be a secondary source or someone’s interpretation of the original item. For example, a photograph of a centuries-old painting may be copyrighted and have restricted rights
  • Don’t use a resource for which one-time permission has been granted by the creator. (E.g. says “Used with Permission.”). Instead, if you find materials that you want to use but haven’t been released with an open copyright license, contact the creator and ask if they will consider doing so.
• Look for the copyright notice. This information lists the copyright symbol (the letter C inside a circle) or the word “copyright” followed by the year in which the work was created, and therefore copyrighted, and the name of the copyright owner.
  • This information will help you ask for permission and attribute the creator.
• Look for a statement of rights. This statement outlines the conditions of use or permissions granted by the copyright holder — for example, using a Creative Commons license — and is part of the “copyright notice.”
  • Here is an example of a copyright notice that includes a statement of rights for an openly licensed resource: Copyright 2018 Lauri Aesoph. This guide is released under a Creative Commons Attribution 4.0 International License.
• Document where you found the content.
  • Always include the creator, link, and source information (see the Attribution section for more information on appropriate attribution)
  • Include whether permission was granted, if you are claiming fair use, etc.
  • VIVA will provide tracking documentation.
• Make sure that the credit line matches the site and/or what was requested by the copyright holder.
  • Some sites include specific language or a copyright owner may request specific wording when granting permission for usage
  • If no wording is specified, use: “© [CopyrightHolderName]. Used with permission.”

Requesting Permission

If you are creating an OER, you might need to ask for permission if you want to:

• Include a copyrighted work
• Take advantage of a right not given as a part of a creative commons license. For example, making changes to something marked No Derivatives
• Including interviews
• Filming or including other recordings in the OER
• To include student works

In these cases, you will need to identify the copyright holder and request their permission to use the content in your work. The copyright holder may not always be the creator of the work. Sometimes publishers hold the rights to the books they publish and museums often hold the copyright to the photographs of the works in their collections. You should review the work to identify the correct copyright holder before requesting permission. If you’re unsure of the copyright holder, make your best educated guess; the permissions requests will ask them to share the correct copyright holder if it is not the addressee.

VIVA has created permissions template letters which VIVA Open Publishing authors are encouraged to use when asking for permissions: VIVA Permissions Templates folder [bit.ly/viva-oer-perms]. Each template is aligned with a specific type of request, so you should use the letter which most closely aligns with your situation. The folder includes template permissions requests for:

• Permissions Request. The basic permissions request for reusing copyrighted content, including images and text.
• Filming Release, for when you wish to make a recording or film material, including interviews. Asks for permission from the subject being recorded.
• Interview Release, for when you wish to include a written interview in your work. Asks for permission from the interview subject.
• Student Permission, for when you want to include current or past student work.
• Student Permissions for class work, for when you are considering including assignments from students currently enrolled in your class with grades associated with their work

Using the request templates

To use the templates:

1. Select the template that most closely aligns with the type of material you would like permission to use.
   1. Sometimes the template will not be a perfect fit for your project. If you wish to make any adjustments to the form other than adding your project information, please reach out to VIVA Open Publishing staff.
2. Complete the required aspects of the letter.
   1. Some of these will be universal across all permissions form for your work. For example, the title of your work and license which you will assign.
   2. Some will need to be customized for each permission request. For example, the name and creator which you are asking permission to include.
      1. Please note that the Permissions Request includes information that will not be applicable to all requests (e.g. journal information would not be applicable for a book chapter). You can delete these empty fields from the letter before sending.
3. Send the completed template to the copyright holder.
   1. Most are sent via email, but you may use the method you find easiest.
4. If you do not hear back from the copyright holder, you should follow-up
   1. We recommend sending follow-ups twice. If you do not hear back at that point, you should consider another source or evaluate for fair use.
5. When you hear back
   1. If they refer to you a different copyright holder, adjust the letter and resend to the correct copyright holder
   2. If they sign, keep a copy for your records and you are welcome to include the content in your work
   3. If they deny permission, consider another source.

Please note that request templates are a formal way to articulate all the information needed to ensure you have permissions for reusing the content. However, the forms are not the only way to obtain such information. If a copyright holder agrees to the terms via email, that is also fine; just save/print a copy of that email for your record. The most important part is having the granted permission articulated in writing.

Do I need to pay for using copyrighted content?

The cost of reusing copyrighted content will depend on the copyright holder. Individuals typically will not request fees while larger organizations may. It is up to you whether you wish to pay for the use of copyrighted content. VIVA Open Publishing will not pay these fees on your behalf, although they could be included in grant request budgets if you identify needed content and associated fees prior to applying for a VIVA Open Grant.

What to do with the signed request letters?

You should keep a copy of the request for your records in case anyone questions the reuse in the future. VIVA may also ask you to submit a copy of the requests; VIVA Open Publishing staff will request sharing on a case-by-case basis and forms do not need to be submitted with manuscripts.

Permissions from students

It’s important to remember that students own the copyright of works they create, even if those works are created for use in class. [Please refer to your institution’s intellectual property policy for further details.] As such, you must request permission to use the work any student creates. The exception is works created by student employees (basically works for hire), although VIVA encourages you to still request permission and encourage the student assign an open license to these works.

Students may not be familiar with copyright or the concept that, as creator of works, they hold certain rights. We encourage faculty including student works to review this with their students prior to providing the permission form.

Other considerations when requesting permissions from students:

• One must be legally an adult (i.e. over 18) to grant permission. While most college students will meet this requirement, those that don’t will need to ask their parents to sign on their behalf. We have included this confirmation on the template permissions requests.
• There is an uneven power dynamic when asking students for permission to use works they create for a grade in class. Students may feel like they have to grant permission in order to pass your class. You should make it clear that their grade is not dependent on whether permission is granted and the license they assign.
  • We have tried to make this explicit in the permissions request, which is why there is a separate request for class work.
• Students may grant permission now, but feel uncomfortable having their college work public later in life. It is important to let students know they can ask for permissions to remove their work, remove their name from the work, or use a pseudonym.
  • A pseudonym may also be useful for those that don’t wish their name associated with their work, perhaps because of the content of an essay.

Fair Use

Fair use is a legal right that allows the public to reuse copyrighted content under “fair use” without first contacting the copyright owner. To determine if a use qualifies as fair, it is evaluated on four factors:

1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount used in relation to the whole
4. The effect on the use on the market

Some sources with additional information on these factors:

• Columbus University Fair Use Basics
• US Copyright Office Fair Use Index
• Copyright Alliance, “What is Fair Use”

Some generalizations about claiming fair use: Teaching, research, and scholarship favor fair use, as they do not typically impact the market and perform an analysis of the work. Commercial ventures and replacing the sale of copyrighted work oppose fair use. Using a small portion of the work also typically favors fair use.  It’s important to note that these generalizations are not universal and all fair use claims should be considered on a case by case basis.

Authors who rely on fair use can do so in good faith by following standards established for their discipline and/or for types of work, such as those provided by the Center for Media & Social Impact. A Code of Best Practices in Fair Use for Open Educational Resources was published in February 2021 to provide guidance on using fair use in the creation of OER.

Fair Use Checklists

To help evaluate whether you case may meet fair use, we encourage the use of a fair use checklist or evaluator. These will walk you through each step to determine how “fair” your use is for each of the factors.

Columbia University Libraries has a well respected Fair Use Checklist website which provides a straightforward tool to help evaluate the fair use criteria.

The American Library Association has also created a Fair Use Evaluator:

You can use the widget here or navigate to the source at Fair Use Evaluator, © 2008 Michael Brewer & ALA Office for Information Technology Policy, CC BY-NC-SA.

Linking and Embedded content

Another option when reusing copyrighted content is to link to or embed the material in your work. In general, courts have not considered linking to a website or deep linking to a web page a copyright infringement, and permission is not required to do so. However, you should avoid linking to a website that obviously commits copyright infringement, such as hosting pirated music or films.

When including a link or embedding content,

• Also include complete citation to the source, so that users can locate the material if using it offline or if the link changes or breaks
• Make sure that you follow accessibility standards (i.e., the link text must describe the content of the link when taken out of context for the surrounding paragraph and Your link should open in a new window)
• Make the best effort to embed openly-licensed or public-domain videos
• Embed videos from video-sharing websites for which:
  • the Terms of Service clearly indicate this action is permitted
  • copyright holders can remove their videos in cases of copyright infringement
  • provide proper attribution

Embedding videos

Embedding–or inline linking–involves adding an embed code to a web source (such as an open textbook) that results in a visual representation–or streaming–of digital content, such as a video, from another web source, such as YouTube or Vimeo. This is a very popular practice because 1) viewers don’t need to access a second website to watch the video, and 2) the embedder doesn’t sacrifice bandwidth because the video data is stored on the original site.

The question for open textbook authors, however, is: Does embedding violate copyright infringement for videos not released with a CC or open license?

In his blog post, “Is it legal to embed YouTube videos in a blog post?” Kenny Novak answers this question with a summary of YouTube’s terms. He says: “…as long as YouTube’s terms permit it, any YouTube user can embed your content without needing to ask your permission because you already GAVE them permission simply by uploading your content to YouTube.”

All videos shared on YouTube are assigned to one of two licenses. The Standard YouTube license is added, by default, to all videos uploaded to YouTube and sets the conditions described by Novak above.

A Creative Commons Attribution (CC BY) license is also available, but the user must manually make the change from a Standard YouTube license to a CC BY license by following these instructions. The CC BY license lets the video’s copyright holder give users advanced permission to copy, change, redistribute, and retain copies of the video. For more information, see Display Embedded Media in the Pressbooks Guide.