How to account for copyright when publishing OER?

Last updated 9.11.2021

Important fundamental elements

Copyright protection is given to any work that exceeds the so-called threshold of originality. The threshold of originality is exceeded if the work is an independent and original result of the author’s intellectual creation. Copyright is given to the author of the work.

Photographs, performances of works (such as lectures), sound and video recordings, catalogues, databases and TV and radio signals are protected by related rights. In addition to related rights, all of these can also have a copyright if they exceed the threshold of originality. In such cases, the related right and any copyright shall be conferred on the producer, which may be an educational establishment.

The names of authors must be stated in accordance with the Copyright Act and the open licence. Consent must be obtained for the use of the images of persons.

Perspective of the author of the educational resource

Plan the opening

Plan the opening of the educational resources in advance:

  • where,
  • how and
  • on what terms of use

the educational resource or part of it will be opened.

Take these matters into account, among others:

You can only open material for which you are an author or which you have received for your use with a licence that allows use to the extent equalling the licence you select for the material to be opened. For example, if you plan to open your material with a CC BY license and use the other material as an illustration, the images of your material must be licensed with a CC BY license.

The author decides on the opening of the educational resource with a licence. The author is also entitled to transfer the copyright to his/her employer organisation, unless the rights have been separately agreed on before the educational resource is drafted.

If the educational resource has more than one author, consent from all authors is required to open the educational resource.

Submit the author and source information that are the prerequisite for the permit of use. For example, it is a good idea to indicate in each CC BY licensed image how the author and source information of the image should be disclosed.

You must ask the students for a permission to use the materials they have created, such as texts or images.

Ask if the student wants to be mentioned as the author of their text or images. If a student does not want to be mentioned as an author but you are authorised to use the material anonymously, remove the names and any other personal data of the student.

If photos have been taken of a student, note that the student’s photo, video or sound recording is the student’s personal data and in order to process it you need a basis for processing it, such as the student’s consent.

Minimise the processing of personal data. Avoid using personal data if it is possible to implement the educational resource without personal data. If you are processing personal data, ensure that the data subject is informed and that you have the legal basis for processing it. If the processing is based on consent, you can provide the information required by Article 12 of the GDPR on the consent form, such as:

  • purpose of processing the personal data;
  • period for which the data are stored;
  • potential subsequent use of the data;
  • where the data may be disclosed;
  • who is the controller.

Opening with the use of open licences

Explain under what terms and conditions the material can be used. A good way to do this is to add a Creative Commons (CC) licence to the material. The use of the Creative Commons licence makes it easier to make extensive use of educational resources and to give merits to the authors. The software should also be licensed with corresponding open source licenses.

CC licences give users the right to use the material. Some licences are more permissive, and some are more stringent: for example, commercial use may be prohibited or authorised and processing may be prohibited or authorised. The authors of the educational resource can use a licence to determine the terms of use.

The author of the educational resource decides which CC licence to license the resource with. Open CC licences include:

  • CC BY (Attribution): The author authorises others to copy, distribute, display and perform their work and the modified version thereof, provided that the author and the licence of the work are referred to in a linkage and any changes are clearly stated. The modified versions must not infringe on the specific nature of the original author’s work.
  • CC BY-SA (Attribution) and (Share-Alike): The author authorises others to copy, distribute, display and perform their work and the modified version thereof, provided that the author and the licence of the work are referred to in a linkage and any changes are clearly stated. If the editor publishes the modified version, it must be published under the same license. The modified versions must not infringe on the specific nature of the original author’s work.

CC licences also include licences restricting the further use of the work. The Non-Commercial (NC) condition excludes the commercial use of a work, including use in commercial training situations. The No Derivative Works (ND) condition, on the other hand, prevents making modified versions of the work. The materials licensed under the limited licenses are not considered open educational resources in which the user is, by definition, always entitled to copy, distribute, display and perform the material and modified versions made of it. Even when publishing educational resources with more limited access, CC licenses are often the most convenient way to indicate what kind of rights the user has for using the material.

There are many good reasons to use a CC licence, which gives others the right to modify the material:

  • The permission to modify makes it easier, for example, to adjust the material with another type of study module or course.
  • The permission to modify allows the material to be translated into another language, which increases its international use.
  • The permission to modify allows video recordings to be subtitled and text to be converted into voice recordings, which makes them more easily accessible.

If the author of the educational resource decides to transfer all or part of the copyright to the employer organisation, the opening of the material under the Creative Commons licence can be agreed upon at the same time. If the employer is granted a parallel copyright, the author may also independently decide to publish their material by using the CC licences.

Collaborative educational resources

If the educational resource has more than one author, consent from all authors is required to open the educational resource.

Agreement between teachers: At the very beginning of the work, it is a good idea to consider how to agree on the rights in such a way that they are as appropriate as possible for each party involved in drawing up the material. One option is to agree on parallel copyrights – agreeing on the rights as a whole may better support individual use by everyone involved. If no right to modify has been agreed upon, there is no right but to modify and use one’s own contribution separately from the output of the others. If teachers agree on open licensing of the material with a CC BY-SA licence, for example, they will also gain the right to modify the entire material.

Organisational perspective

Agreeing on cooperation between organisations

It is worth agreeing in advance on the open publishing of the educational resource and where the open educational resource is published (on which websites, for example). Open publishing of jointly produced educational resources always requires the consent of all authors.

Copyright in a text or image is afforded to the individual teacher who wrote the text or took the photos. An organisation may agree on copyright only if it has first been transferred the copyright or at least the right to use the material and the right to grant licences to the material to a third party. If the material is CC licensed, transfer of rights to an organisation is not necessary.

The organisation also needs the right to modify the material in order to update the educational resources, which is ensured by a CC licence granting the necessary rights, for example. Such modifications must not infringe on the specific nature of the work of the original author and shall be clearly stated. In addition, the original author must always be stated.

When organisations produce educational resources jointly, the following must be taken into account in the planning:

If such material is jointly prepared from which independent, copyright-protected parts of the output of different authors cannot be separated, it is important to agree on the rights to a jointly prepared work. Open publishing of jointly prepared educational resources always requires the consent of all authors.

If each author creates an independent, copyright-protected component that is distinguishable from the whole, at least sufficient rights of use are required from the author of each component in relation to the terms of opening the agreed educational resource in order for the component to be used for the intended purpose.

The opening of educational resources should be separately agreed upon for each project. Opening the educational resources guarantees the employer the necessary access rights to them, which is why agreeing on copyrights in employment contracts is not necessary in this case.

In projects where open educational resources are prepared, consideration should be given to whether the authors use CC licences to open the material or whether there is any need to transfer the rights from the author(s) to the organisation. When the intention is to produce open material, transfer of rights to an organisation is not necessary.

In projects that have received external funding, it is especially important to ensure that all those who have prepared some material for the project have licensed their work with a CC licence granting the necessary rights, or that the rights to the results have been transferred to the organisation receiving the funding. This applies to employees, visitors, students and, for example, participants in workshops. If the copyright is not transferred, a sufficiently extensive licence is required for all those who have prepared some material so that it can be used for the intended purpose.

Principles of agreement

If there are several organisations involved in the project, the organisations shall agree on the use of the project results and on the ownership and use of intellectual property rights. Each organisation is obliged to agree with its own employees, students and any contractors, volunteers, etc. how the necessary rights will be transferred to the organisation to such an extent that the contractual obligations agreed on between the organisations can be fulfilled. In addition, the following must be agreed on:

  • rights to modify and update jointly produced material and the responsibilities thereto;
  • terms and conditions under which the materials are published.

It is also possible to use a CC licence for materials jointly produced by organisations. The agreement will specify who will open the material, how the authors will be displayed and what kind of CC licence will be used.

Agreement between organisations may only take place if the educational resources have been CC licensed or if sufficient rights to the resources have otherwise been granted to the organisation:

It is worth agreeing between the teacher and the employer organisation already at the planning stage:

  • Whether the organisation will receive access rights only or other rights as well.
  • What purpose the material will be used for.
  • If the rights are to be transferred, for how long will they be transferred.
  • What will be agreed on potential commercial use in continuing education, for example.
  • What will be agreed on the distribution and further transfer of the material.
  • Who has the right to modify the material

Cooperation agreement between universities on
open educational resources

The cooperation agreement should include agreement on:

1) Purpose, objectives and methods of implementation of the cooperation.

2) Terms and conditions of educational resources.

3) Potential joint study modules:

  • how to implement joint study modules;
  • who is responsible for their execution;
  • how many times will the study module be carried out and how often (frequency).

Furthermore, it should be agreed in the contract who has the right to results if something new arises in the process of producing the educational resources. For example, new inventions and trademarks form part of other intellectual property rights, whereas Creative Commons licences only apply to copyright. Unless otherwise agreed, co-ownership means that the use of results is agreed upon together.

It would also be good to agree on modification and updating rights of the materials:

  • Who can modify or update?
  • Who is responsible for keeping the material up to date?
  • Does modifying the material require the approval of another organisation or another party?
  • Who has the right to use the updated or modified material?

Student perspective

In student works, the copyright belongs to the student. As with other authors of educational resources, the ownership of the educational resources must also be agreed with the student if, with regard to the content created by the student, the threshold of originality is exceeded.

A student may transfer the ownership to the higher education institution. It is best to make an agreement at the planning stage and no later than at the beginning of the course or study project. The students must be made aware of the nature of the course and the contractual basis for intellectual property rights already when they register for the course. In any case, it is important that the contract be concluded before the material is drawn up, as the student also has the right to prevent the use and opening of the material compiled by them. If several students have prepared material together, an agreement on the use of the material is needed from each student. It is also worth noting that a student’s participation in a course where they prepare material must not require the transfer of copyright.

A student may also use the CC licence for his/her material, unless otherwise agreed by agreement.

A student as an author must be reported in accordance with good practice when the student’s share is evident in the educational resource. The rights to modify and update and the responsibilities thereto shall be agreed with the student, as with other authors of the material.