Can I use it, based on license?
The copyright status and license of each specific resource you want to use must be considered. In other words, if you want to use an image you find in a magazine article, look for information about the image itself, rather than assuming it has the same copyright status as the article. For example, the image by AJ Cann in the article Explainer: what is peer review? has an attribution statement saying the image (rather than the article) is under a Creative Commons license.
When determining whether or not you can use a resource based on its license, ask yourself the four questions below. Usually, the component parts of open educational resources are in the public domain or have Creative Commons licenses, which are covered in the first two questions.
Is the work I want to use copyrighted?
In the U.S., as soon as something is written down or recorded, it is automatically copyrighted. This means that a work may be copyrighted even if it doesn’t say it is. Copyright gives the copyright holder (sometimes the creator and sometimes the publisher) the exclusive right to copy, publicly perform, distribute, and alter or build on the work (learn more about copyright).
The good news is that there is a great deal of content that you can assume is not copyrighted! Copyright doesn’t last forever. Works created before 1923, and some works created between 1923 and 1989, are in the public domain, meaning the work is not copyrighted and you can use it however you want. Another swath of content in the public domain is US federal government works and works created by some states (not the state of Oregon, currently). A librarian can help you determine whether content is in the public domain.
Does a license (such as Creative Commons or a library subscription) allow my use?
Some copyright holders want to give others the opportunity to use or modify their work through an open license. Creative Commons are the most common licenses for open educational resources, but there are many types of open licenses. If a work has an ambiguous licensing statement but it seems like the author wants to share, you could contact them to request that they add an open license to their work to clarify their intent.
Your library may also subscribe to digital materials that your students already pay to access through their tuition and fees. In most cases, the library license does not cover adapting or remixing the material or sharing beyond your institution. Because of this, when you’re developing open educational resources, it’s best to provide a citation for materials that are restricted to your institution. Even better, see if you can find equivalent materials in the public domain or that are openly licensed. Always check with a librarian before linking or embedding library content in your course.
Would my use be fair use?
Fair use is an exception to copyright that might allow educators to use copyrighted content in some cases. Read more about fair use and how it relates to OER.
Do you have or can you get permission?
There is always the option to seek permission from the copyright holder to use their work. They may be more likely to agree to this if they are not making money from the work. More information: Copyright permission request.
This question structure reflects the one used in Kevin L. Smith’s book Owning and using Scholarship: An IP Handbook for Teachers and Researchers.