1. Open education between the
specifications of Creative Commons
and Copyright
Mokhtar BEN HENDA
Bordeaux Montaigne University, FRance

2. A frame of reference
 Common belief:
 Weak concern/awareness about
Copyright when using online or
paper resources in research or
training,
 European concern:
 Provide concrete answers to the
legal questions facing the
researcher as a user and creator
of intellectual works (texts,
videos, photos, drawings, etc.):
what are the obligations that the
researcher must respect.
 FRANCE: Training PHD Students
on:
 Academic integrity,
 Copyright and intellectual
property,

3. Overview on the spectrum of rights
 Copyright belongs to a complex ecosystem of
extremes (opponent logics):
 From “All rights reserved” (Proprietary)
 To “No rights reserved” (Open)
 With “Some rights reserved” in between (CC)
Copyright Open license
 Absolute protection of
creators (intellectual
and financial incentive)
 Absolute sharing (Free
circulation of
knowledge)
 All rights are reserved
except those expressly
granted
 All rights are granted,
except those expressly
reserved
 One to One  One to many

4. Copyright exclusive rights
 A set of exclusive rights to authors of original and creative works:
Source: Understanding the Basics of Copyrights, By Shutterstock, April 29, 2015
 International Conventions (broad non-
consensual):
 Berne Convention (179 contracting parties:
1886)
 Universal Copyright Convention (Unesco:
1952)
 TRIPS Agreement (WTO: 1994)
 WIPO Copyright Treaty (UN: 1996)
 National copyright systems (different):
 No international consensus on one common
copyright law,
 A challenge for sharing content across
boundaries,
 E.g. Different definitions of the public domain,
[Different] Copyright exceptions and limitations

5. Copyright limitations & exceptions
 Exceptions and limitations create balance with
exclusive rights: no authors permission under
special conditions:
 Special domains,
 3 step-test,
 Exceptions fairly promote “Open access”!?
 Berne convention (1886) has readily acknowledged
copyright exceptions in “special cases” including
“Teaching” [1889 - Art. 8 / 1971 – Art. 10 (2)]
 National laws introduce local interpretations and
rules for exceptions:
 Fair Use (USA): case by case principle,
 Fair dealing (UK, Commonwealth): law prescription of
“special cases”,
 National Copyright laws in IPR (Europe, …)
3 Step
test
1 - Limited to
certain special
cases
2 - Does not
conflict with a
normal exploitation
of the original work
[substantiality]
3 - Does not
prejudice the
legitimate interests
of the author
[Market impact]

6. Fair use/fair dealing scope
 An open-ended list of acts may not be considered an
infringement of intellectual property rights:
 Ideas (Copyright protects the specific expression of a
work (the words) but not the underlying idea.
 NB: Reproducing ideas is more a matter of Ethics and
academic integrity than copyright,
 Research (citation): short extracts with citation,
 Teaching: restricted use in time, space & public,
 Libraries/archives: keep items in the collection,
 Facts (non-fictional): news are facts, not creative,
 …
 Are fair use/fair dealing paving way to open access
jurisdiction?
 Authors giving deliberately limited rights to others to make
specific use of their works
 Using certain copyrighted work without permission from
authors,
Exceptions, Copyright.org

7. Fair use, Fair dealing: limited use?
 Fair use/dealing allows students to use short excerpts (portions) of copyrighted works,
 These excerpts are changing from jurisdiction to another,
Lumen, Writing Skills Lab, OR, USA

8. Exceptions toolkit: Fair use checklist
 Fair use is determined on a case-by-case basis using a
checklist that turns around 4 factors (4 step-test):
 Purpose and Character of the Use (special cases),
 Nature of the Copyrighted Work (facts, fictional),
 Amount of the Work Used (substantiality),
 Effect on the Value of or Market for the Work (financial impact),
Purdue university

9. Checklisting? Quite familiar with CC!
 Choosing CC licenses using a checklist:
 To check CC licenses compatibility,
 To select appropriate license for a remix,
 To manage complicated scenarios of adapting two or more
CC licensed works into a new work,
Source: Freedonia, Reed Library. « Copyright v. Creative Commons »
MIT: Creative commons Compatibility Wizard

10. An exasperating questions: CC & Copyright Remix!
 Do Creative Commons licenses affect exceptions
and limitations to copyright?
 No. If reuse of a CC licensed work falls under the fair
use exception, then there is no obligations under the
CC license. This is a fundamental principle of CC
licensing.
 May I apply a CC license to my work if it includes
material used under copyright exception?
 Yes, but it is important to prominently mark any third
party material used so that reusers do not think the CC
license applies to that material.
 How to use materials from incompatible sources?
 Create a collection (no derivative work): differently
licensed materials are kept distinct and clearly
attributed,
 Link out or embed: pointing to resources in their
original place,
 Notice may be in any form but recommended to be in
TASL format (Title, Author, Source, Licence)
 OER remix with copyrighted
materials   
 OER using short excerpts of copyrighted
resources under fair use

11. Perspectives: reviewing copyright laws for open access
 Key recommendations:
 Making of fair use a more accessible defense against claims of copyright
infringement,
 Acting to largely expand Copyright exceptions & limitations into the digital
environment (EU Directives, 2019),
 Call for countries to tailor copyright exceptions and limitations systems to
their domestic legal culture and needs,
Creating a legal regime more favorable to promote
Open access to knowledge
DIRECTIVE (EU) 2019/790 OF
THE EUROPEAN
PARLIAMENT AND OF THE
COUNCIL
of 17 April 2019
on copyright and related
rights in the Digital Single
Market and amending
Directives 96/9/EC and
2001/29/EC
Follow in the footsteps of the embargo principle of
the Gold publication system of Open access journals