While the vast majority of OERs published under a CC license are valid--that is, the resources are open and free to use based on the stipulations of the specific CC license--there are some occasions where a work is published under a CC license but that license is not valid for various reasons. For example, if the work in question was originally published under a closed, all rights reserved copyright and another party republished it, illegally, under a CC license. Other instances involve cases where the CC license provided does not link back to the valid CC license deed, but to another web page. Still other cases are those works where the copyright and terms of use language directly contradict the stipulations of the CC license provided. The bottom line is that DR staff must validate that every OER with a CC license is legal, and not assume that the work is okay to use simply because it has a CC license.
Every party (individual, organization, company) that republishes and redistributes an OER with a CC license must provide a complete and legal attribution for that work. This is not a courtesy but a requirement of every CC license. The attribution also must adhere to certain rules: It must list the exact title of the work with a link back to the original source; it must list the author, if available; it must list the journal, book, or website where the work was originally published; and it must list the specific CC license with a link to the Creative Commons license deed.
CC licenses can apply to any work that is covered by copyright law. The licenses work alongside copyright law, allowing creators to make their work freely available and to specify how that work can be used by others without requiring users to request permission. When creators apply a CC license to their work, they do not give up their copyright ownership of the work and the CC license does not replace copyright registration of the work.
The terms "open" and "free" are not the same when it comes to copyrighted content. Open content is made available under an open license, most notably a Creative Commons license, which allows users to freely reuse/republish/redistribute the content according to the terms of the specific CC license. Free content may or may not be available under a CC license. Some "free" content is only free for the user to access and download for personal use, but not modify or redistribute without express permission. So-called free content with these restrictions is published under "closed," copyrighted, and all rights reserved licenses.
As stated above (see #3) Creative Commons licenses work alongside the rules of copyright. Copyright is a complex, vast, and changing subject with a lot of gray area. Therein lies the basis of legal exposure. Although rare, lawsuits have been brought against individuals and organizations over the use of CC-licensed resources. In almost all cases, these suits involved instances where the user failed to honor the full terms of the specific CC license, especially providing proper attribution. CC licenses come with no representations, warranties, or indemnifications—all CC licenses contain a disclaimer of warranties, meaning that the licensor is not guaranteeing anything about the work, including whether he/she owns the copyright, has received permission to include third-party content within the work, or secured other rights.
The Americans with Disabilities Act (ADA) and other related laws make it mandatory that public facilities and institutions that receive federal funding, such as colleges and universities, provide equal access for people with disabilities to both physical structures and published materials. In the realm of education, all published materials and resources used in teaching must be accessible by students and others with physical and cognitive disabilities; this includes websites, textbooks, supplemental materials, software, and audio and visual content.
OERs evolve as they are first published, then are used, reused, adapted, redistributed, further modified, and so on, by others. Rarely are OERs "off-the-shelf" ready for classroom use: they must be modified--often combined with other content--to make them meaningful and effective in a classroom setting. While this means more work by faculty and staff, the process provides these users with the freedom to create new content that better aligns with the course instruction and outcomes. In Course Development, OERs are touched by several teams including Digital Rights, ADA, Quality Assurance, Learning Design, Art & Media, Production, Curation, Modifications, and Content Operations.
Copyright law and ADA (and related) laws are most often in conflict when users must modify certain works in order to make those works ADA compliant so they can be accessed by people with disabilities. For works that are published under a traditional, closed copyright license, it is impossible to make such modifications without seeking and securing permission from the copyright owner. Even some CC-licensed works (those published under a No-Derivatives license) can't be modified without permission. In this way, the intended outcomes for digital rights copyright and ADA compliance are at odds.
The vast majority of copyright violations are minor, with users of copyrighted content being directed to cease and desist from violating another's copyright; rarely are monetary damages paid for the violation. While time-consuming and (sometimes) costly to rectify the problem, these infringement matters can usually be managed and resolved in a satisfactory way. ADA violations, on the other hand, can have repercussions beyond rectifying the original complaint, including lawsuits into other violations and even the loss of federal and state funding if the offending institution does not act responsibly to rectify all of the non-compliance issues. Educational institutions, in particular, are being closely scrutinized by disability rights groups, who routinely review the websites and other materials of these institutions to make sure they fully comply with ADA and related laws. In short, the field right now is ripe for litigation.
Course Development ensures that every OER we embed is WCAG 2.0/ADA compliant. The more content--videos, audio clips, images, figures and tables--included in an OER, the more steps ADA staff must follow to ensure that the resource is compliant and can be used in our courses.
As the answer above illustrates, there are significant costs involved in ensuring that all of UMGC's OERs are ADA compliant. These costs are primarily for staffing but also include captioning, as well as the software and hardware the ADA team needs to perform its responsibilities. The good news is that this cost is borne once, as long as the OER is not modified or altered in such a way that it would require another ADA review. Over time, UMGC is building a repository of DR and ADA-compliant content that can be used across multiple courses.
DR and ADA partner with Legal, who do not advise on what is prudent but advise on what is legally possible. Legal is not the business decision-maker in this process. They advise on legal risks, and together with the schools, Course Development (DR/ADA) has to decide whether it makes business sense to encounter the risks and how best to mitigate risk based on the advice they provide. No enterprise, including UMGC, can ensure that it has zero legal risk in its operations; instead, the goal is to minimize that risk whenever possible and to always balance it against the needs of the organization.
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license. © 2020, UMGC.