At OfliLibre, we often receive many inquiries about the use of free materials, licenses, free software, etc. We don’t always have an answer for everything. So, when we have doubts, we seek help by consulting experts.
On this occasion, we contacted Javier de la Cueva, a lawyer specializing in digital rights, to ask him about the use of CC-BY and CC-BY-SA licenses in materials generated within the university.
Below, we present the hypothetical situation, the doubts that arise, and the response from the specialist.
First Hypothetical Situation
We have a certain material (notes, slides, videos) created by its authors, which includes some images (or, in the case of videos, short clips of a few seconds from other videos) from third parties. These can be, for example, images or clips from TV series (e.g., The Simpsons and Futurama), tables or images from a book, etc. (and in all cases, we can assume that the authors of the material do not have permission from the copyright holders of those works).
Questions about the Hypothetical Situation
1. Can they take advantage of the provisions of the Intellectual Property Law (LPI) regarding the inclusion of third-party works for analysis or criticism, or some other provision, so that they can publish the material with the indicated license?
Response:
The response is given in the article of the LPI cited. The authors of the notes, slides (presentations), or videos can include fragments of other written, sound, or audiovisual works in their own works, provided they meet the following conditions set forth in the law:
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That the foreign fragments come from already published works.
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That the inclusion of the foreign fragment in the own work is done to cite, analyze, comment on, or present a critical judgment of it.
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That the purposes of the work that includes the fragments are educational or research-oriented.
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That the source and name of the author of the work used are indicated.
2. Does the fact that these third-party works are used purely for illustrative purposes, or directly to comment on or criticize them in the educational context of the material, make a difference that needs to be considered?
Response:
Precisely, the use for purely illustrative purposes or the use of the fragment directly to comment on or criticize it in the educational context are necessary conditions for the lawful inclusion of a foreign fragment in one’s own work.
Using the fragment for purely illustrative purposes is precisely what is understood as inclusion for citation purposes. Therefore, it would be legal as long as the requirements mentioned above are met.
3. In cases where they can do so, should they indicate in some way in the text of the CC license grant that these third-party works are not included?
Response:
In the own work, it should be clearly marked what part of the work is the foreign fragment and what part is the own work.
Additionally, it should be indicated that the third-party works are not included under the CC license of the teacher’s work, which can be done through a system or another depending on the type of work:
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In text format, using quotes, italics, or a separate paragraph, with an indication of the source and authorship of the foreign fragment.
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In audiovisual works, in the credits section, although it is possible to indicate it through subtitles.
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In sound works, it is convenient to use embedded metadata, and if not possible, mention the source and authorship of the foreign fragment in the narration.
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If it is software, indicate in a text file in the source code what part is own and what part is foreign, without prejudice to also indicating it in the code itself.
To indicate this aspect in text format, the following formula can be used:
“This work is licensed under CC-[xx]. The following foreign works are cited in it, indicating the name of the work, authorship, and source:
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Photograph. Name of the photograph. Name of the author. Source of the photograph.
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Table. Name of the table. Name of the author. Source of the table.
Second Hypothetical Situation
We have a material (notes, slides, videos) created by its authors, but following the structure of a book or course created by third parties. We can assume that the authors of the material do not have permission from those third parties. Except for the structure, the authors have not used any literal fragments of the work whose structure they follow.
Questions about the Hypothetical Situation
1. Can this material be distributed under one of the indicated licenses?
Response:
A structure is part of a work. The disposition of knowledge in ordered categories implies an intellectual work and, therefore, is susceptible to having authorship and being subject to the regulation of the LPI.
However, this will only occur in cases where the structure meets the characteristic stipulated in the law that all original creations are subject to intellectual property. Thus, if a structure is not original, it can be used freely by anyone in the creation of their own work.
It should also be taken into account that if the structure is something traditionally accepted in academia since time immemorial or forms part of a description of knowledge collected in a publicly published study plan (public universities do so), then it would be a structure in the public domain, either due to the passage of time (consolidated structures since time immemorial) or by application of article 13 of the LPI (case of study plans) since it would have the consideration of a legal norm.
If the structure is an original work, it can be used by the teacher, since it could also be integrated under the concepts of “citation or for analysis, commentary, or critical judgment,” as it is being used to analyze the content of the work. Moreover, as a typical work, there is the review, where in many cases the content of the reviewed work is explained, without this implying a violation of copyright. In this case, the same requirements mentioned in the first hypothetical situation would need to be met.
2. Is it convenient/obligatory to mention the work whose structure is followed in some way, in the point where the license is granted?
Response:
Yes, for two reasons. Firstly, it would be legally obligatory according to the provisions of the LPI, article 32.1; secondly, it would be ethically convenient due to the necessary intellectual honesty that should characterize academic activity.
In summary, in the text, transparency, or other work that includes the foreign structure, it should be indicated that the structure is from another person’s work. The following formula can be used:
“This work is licensed under CC-[xx]. The structure of [WORK NAME] by [AUTHOR NAME], accessible at [URL], [editorial, ISBN, DOI…], is used, citing, analyzing, commenting on, and critically judging it.”