4 Copyright
Introduction
This chapter includes information about what copyright is, why copyright is important for authors and publishers of open textbooks, what issues may arise, and some suggested solutions. Creative Commons (CC) licences and other licence types, such as for software, are covered in the next chapter.
Copyright meaning and purpose
Copyright is a type of intellectual property, like trademarks or patents. It is a system of international treaties, laws and court decisions that carve out a series of exclusive rights for creators, and some rights for performers, publishers and broadcasters. Copyright is designed to encourage creativity by giving creators exclusive rights over anyone copying, publishing or distributing their work. It increases public access to works, because authors are more likely to publish if their work is protected.
Each country has its own copyright law which is enforced according to its own customs and traditions. But most countries are signatories to international copyright treaties, so all share minimum standards and common legal characteristics. Australian copyright law is contained in the Copyright Act 1968 (Cth) and court decisions (Suzor et al., 2024).
Copyright protection means that a work must be ‘original’. Originality doesn’t require the work to have literary or artistic merit. ‘Original’ means the author uses some skill, ingenuity and labour in making the work. The work does not have to be novel or new.
For a work to be protected by copyright it must also be in ‘material form’. This means that the work is embodied in some kind of recording or format that can be accessed. So, a book cannot be protected by copyright if it only exists in the imagination of the author; it must be embodied in a physical or online form (Suzor et al., 2024).
Copyright law protects the form in which ideas are expressed. It does not protect the actual ideas contained in a work. Authors can use other people’s ideas as long as they express them in a different way and give credit.
Copyright protection generally lasts for 70 years after the death of the author.
Copyright protection accrues automatically on the creation of a work. A work does not need any registration or for the copyright symbol © to appear on the work for copyright protection to apply. So, even where online material is not listed as having a copyright owner or has no copyright symbol, it can still be assumed that it is protected by copyright and that rights are owned by the author or website provider (Suzor et al., 2024).
Copyright and open textbooks
It is important for all parties to an open textbook, that is, authors, publishers and librarians, to have a basic understanding of copyright. Copyright will impact on what materials can be used within the open textbook, how they can be used and who will own copyright in the final product.
Copyright owners have the right to regulate copying, online communication, publishing, performing and broadcasting their work, with some exceptions. Ownership of the open textbook and transfer of copyright by the authors was discussed in the Agreements chapter. In general, authors will usually own the copyright in their work (except for employees of an organisation) and the publisher will need a signed transfer of some rights through the agreement to publish the open textbook.
How the entire open textbook should be used will be determined by the Creative Commons licence applied. This is discussed in the Creative Commons and Licensing chapter.
Using other people’s work or third-party copyright material
Copyright also impacts authors reusing third-party material such as images, figures, tables, video or music. Authors need to be aware that the copyright owner of that material has rights over the work they produced no matter its format. Unless the authors are using very old content, it is likely that all third-party material used in the open textbook will be protected by copyright.
Citation of third-party material, although very important for both academic integrity and moral rights (another aspect of copyright relating to attribution and non-derogatory treatment), is not necessarily enough to protect authors from infringement if they are publishing that material in the open textbook. Infringement is assessed on whether the amount used is ‘substantial’, applying a case by case qualitative assessment. If the amount is considered substantial there needs to be evidence for permission or a copyright exception to reproduce the work.
The rights of the copyright owner include the right of adaptation or making derivatives of that original copyrighted work. So, if authors are planning to make changes to third-party material, they need to obtain written permission from the original copyright owner or they can possibly rely on copyright exceptions.
Copyright exceptions
Under Australian law, the most relevant exceptions are fair dealing for research and study and fair dealing for criticism and review. The Educational Statutory Licence, which allows limited copying of print materials and broadcasts, is not helpful for open textbooks because access to material under that licence has to be restricted to only enrolled students in particular universities; therefore you cannot make material openly accessible.
Fair Dealing exceptions can be interpreted quite narrowly. Court cases relating to use of copyright material in a scholarly and educational context are rare. But it should be noted that if an author is relying on fair dealing, they will not be able to republish material under Creative Commons. This is because the author is not the copyright owner of the third-party material and therefore does not have the licensing rights to re-licence the work in this way. More information on fair dealing is available from the Australian Copyright Council and Wikijuris.
When creating the Monash University Library (MUL) textbooks, authors were first advised to obtain permissions for third-party copyright material or only use Creative Commons licensed material or material they had created themselves. Best practice requires that any permissions obtained would need to allow re-licensing under CC BY NC, (which is how the open textbooks are licensed). However, as it turned out, this was not always possible (see Copyright Issues below).
Copyright issues
Even when authors are using content they create themselves, such as photos taken or graphics created for the open textbooks, there can be complications relating to copyright. MUL found that graphics being made with commercial software programs were not always compatible with CC licences. This topic is discussed in detail in the Licences chapter. Photos taken by authors might include adults or children. This requires image permissions and is discussed in the Privacy and Image Consents chapter.
Authors may wish to use course materials they have developed for university study. Usually this content is not owned by the author, but by the University. Authors should ensure they have written permission from the relevant university for the material to be published under a CC licence.
Authors may use photographs of themselves in the text; however, permission must still be obtained from the photographer or their employer, who is usually the copyright owner. There may be implied permission for the subject of the photo to use it, but not necessarily to make the photograph available for reuse in an open textbook. This would need to be clarified before publication.
Authors may be surprised to find they are restricted in the use of their own written content, as they may no longer be the copyright owner or hold exclusive rights. Authors may have transferred copyright or given an exclusive licence to the publishers. In those cases, permission from the publisher will be necessary, unless the content is already published under a compatible CC licence.
Copyright for third-party material can become a problem where the author’s preferred content is not available for CC licensing or permission cannot be obtained. In instances such as these, MUL provided information on alternatives, including CC sites, CC search and other OA search tools for authors.
There is also the option to link or embed content, rather than reproduce it. Linking or embedding non-infringing material is not considered an exercise of copyright in Australia as no copying is done.
At MUL, one open textbook used multiple appropriately licensed videos from YouTube. If the author wanted to reproduce the videos in the open textbook, it would be difficult to get permission from the different copyright owners and the YouTube platform to copy the videos and upload them to the Pressbooks platform. Instead the videos were simply linked, allowing the content to be played on the YouTube platform. Here, no copying was done and no copyright was activated.
There were situations in the MUL open textbooks where neither an alternative nor linking/embedding was possible. However, resources reproduced in the open textbooks could not always be used under CC or with permission. For those examples, advice was sought from the Monash Office of General Counsel. The solution was to include the material, with authors relying on fair dealing exceptions. The material was cited and clearly captioned that it was still copyrighted to the original copyright holder. The caption explicitly stated that this third-party material was not available to be used under the CC licence, unlike other parts of the book. This workaround was not ideal, but was necessary; otherwise the author’s choice of sources and resources would be limited.
Project teams may decide that having even one part or image in the open textbook that is not available for licensing under CC is contrary to the purpose of the open textbook project. Open textbooks are supposed to be reusable and having some content that is not available under CC licences could be confusing to the reader and may limit the effectiveness of the open textbook. Projects may decide that author preferences or academic choice in their sources and resources must be subordinated to the goal of universal Creative Commons licensing or open licensing. This decision must be communicated to authors at the very beginning of the open textbook project and reminders provided throughout the writing period.
For more information on specific types of content and the copyright issues involved, see Understanding Copyright in the Open Publishing Guide for Authors ( Andersen et al., 2023).
Permissions
Permissions for any third-party material included in the open textbook need to be in writing. Email is appropriate if it is from a verified source. The permission needs to set out clearly that the material will be republished in a book that will be CC licensed and include the relevant license.
For the MUL open textbooks, permissions were mainly communicated via email because this was convenient for the authors who were responsible for obtaining the permissions. Subsequently, Library staff checked all copyright permissions before publishing and recorded these on a Copyright Tracker [.xlxs, 68 KB] based on the one provided by the University of Toronto. MUL also stored the permissions in a shared Google Drive for each open textbook, so authors and relevant library staff could access the permissions on demand.
Use of Artificial Intelligence (AI) for open textbook projects
Initially, MUL explored options of using AI generated images or animation for some open textbooks. However, the copyright and privacy issues surrounding AI were a deterrent. For example, questions of where AI training data came from and its use without permission or citation, as well as the possibility of AI generated work not being protected by copyright, led MUL to focus on CC material and permissions for the first four open textbooks. If legal uncertainty over the use of AI tools is resolved, this decision will be revisited for future open textbooks.
Indigenous Cultural and Intellectual Property
Indigenous Cultural and Intellectual Property (ICIP) refers to the right of Indigenous Australians to protect their cultural heritage, including all aspects of art, knowledge systems, and culture (Janke, 2022). Examples might be knowledge about land, plants and animals, choreography, stories, and artworks. When planning to reproduce Indigenous content in open textbooks, it is important to be cognisant of ICIP and to respect the rights of Indigenous individuals and communities to be consulted and provide consent.
It is crucial to seek appropriate Indigenous permissions to use or disseminate Indigenous knowledge. The following sources provide guidance and information about relevant protocols:
- The Australia Council for the Arts’ Protocols For Using First Nations Cultural And Intellectual Property In The Arts
- Oxfam Australia’s Aboriginal and Torres Strait Islander Cultural Protocols [PDF, 151 KB]
- True Tracks, by Indigenous lawyer Terri Janke, provides information about the legal protection of Indigenous art, cultures and knowledge.
- AIATSIS Guide to Evaluating and Selecting Education Resources.
Be aware that ICIP may not fit into traditional areas of copyright and reuse. For example, it is appropriate to seek permission to use traditional Indigenous knowledge in an open textbook, even where this knowledge is no longer protected by copyright because the duration of copyright protection has expired. It’s best to seek help from those with expertise in this area. Contact your University’s Indigenous Research department for more information.
Summary of activities related to copyright in open textbook projects
- Authors should understand who owns the copyright in their chapters and ensure that they have signed the relevant author agreements allowing publishing.
- If the author’s university owns content because it is teaching material, make sure that the author has permission from the university to publish.
- The open textbook will be published under a CC licence and authors should agree about which Creative Commons licence they are publishing under.
- Different chapters can be published under different CC licences depending on circumstances, as long as publishers, editors and authors agree.
- Authors should sign the relevant author agreements allowing the publication of the open textbook.
- Some authors may be external, some may be students, etc. This may mean different agreements are used.
- Authors should understand the issues around third-party material including the requirement for openly licensed, out of copyright or permissions material where substantial or significant third-party material is being reproduced in the open textbook.
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- Citation and copyright permission are not the same.
- Changes to a work still require permission from the original author.
- Free to read material online is not the same as copyright free.
- Authors and publishers should identify the third-party material in each chapter and assess the source for any required permissions or licence.
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- Authors should fill out the copyright tracker so there is a record of the third-party material and the permissions that were obtained.
- Publishers should review the copyright tracker before publication to ensure all correct permissions and licences are in place.
Attribution
The Indigenous cultural and intellectual property section was adapted from:
‘Attribution and Using Copyright Material in OER‘ in CAUL Open Educational Resources Professional Development Program: Foundations by Council of Australian University Librarians. The book is licensed under a Creative Commons Attribution-Sharealike 4.0 International License.
References
Andersen, N., King, D., Stagg, A., & Bell, E. (2023). Open publishing guide for authors. University of Southern Queensland. https://usq.pressbooks.pub/openpublishingguideforauthors
Janke, T. (2022). Indigenous cultural and intellectual property (ICIP). Terry Janke and Company. https://www.terrijanke.com.au/icip
Suzor, N., Pappalardo, K., & Stevens, J. (Eds.) Wikijuris. https://wikijuris.net/ausip/copyrightsubsp3/
