Usage rights for open licensing: what you need to consider

This blog post will give you an insight into how you can incor­po­rate third-party mate­r­ial into your own. For exam­ple, you can ensure that you have all the nec­es­sary rights to the work by obtain­ing per­mis­sion to use it. The var­i­ous options for obtain­ing this are pre­sented below.

As a rule, you can openly license your own work with­out any prob­lems. As the author, you have all rights to the work. The sit­u­a­tion is dif­fer­ent if you have trans­ferred the rights exclu­sively (solely) or very largely to a third party (e.g. a pub­lisher or your uni­ver­sity in accor­dance with Sec­tion 43 UrhG). Or you are not the only copy­right holder. In this case, you must make the deci­sion on open licens­ing together with the other co-authors.

But what applies if you use third-party mate­r­ial in your work? When are you allowed to do so? What rights do you need to the third-party work? When can you (co-)license the third-party work? We deal with these ques­tions in this blog post.

Copy­right is a monop­oly right sub­ject to per­mis­sion. This means that the use of third-party works (with the excep­tion of purely pri­vate use) is gen­er­ally pro­hib­ited unless you have per­mis­sion to do so. This per­mis­sion for use may already exist by law, for exam­ple because a work has never been pro­tected by copy­right, such as offi­cial works (Sec­tion 5 UrhG) or is no longer pro­tected by copy­right because the term of pro­tec­tion of 70 years since the death of the author has expired (Sec­tion 64 UrhG). In addi­tion, the law per­mits the use of third-party works with­out the per­mis­sion of the copy­right holder under cer­tain con­di­tions. These statu­tory per­mis­sions — also known as statu­tory licenses or lim­i­ta­tions — are reg­u­lated in Sec­tions 44 et seq. UrhG (Ger­man Copy­right Act). Par­tic­u­larly rel­e­vant for the use of open edu­ca­tional mate­ri­als are the lim­i­ta­tions of the right to quote, Sec­tion 51 UrhG, car­i­ca­ture, par­ody and pas­tiche, Sec­tion 51a UrhG and free­dom of panorama, Sec­tion 59 UrhG. For exam­ple, you may quote another per­son’s work in your work if the strict require­ments of § 51 and §§ 62–63 UrhG are met.

Per­mis­sion for use can be granted by means of a license agree­ment. In the case of openly licensed works, this hap­pens auto­mat­i­cally with the use of the work if the license con­di­tions are com­plied with. In other cases — if the work is nei­ther openly licensed nor in the pub­lic domain and none of the legal per­mis­sions apply — you must ask the rights hold­ers (authors, a pub­lisher, an insti­tu­tion, etc.) before incor­po­rat­ing it into your work, adapt­ing it if nec­es­sary and then pub­lish­ing it under an open license. If you fail to do so, you are com­mit­ting a copy­right infringe­ment, which may result in a warn­ing let­ter, dam­ages and the asso­ci­ated high costs.

The best way to ensure legally com­pli­ant use of the work is to pro­ceed as fol­lows:

1. If pos­si­ble, adopt only the idea of the work and for­mu­late your own ideas based on the orig­i­nal. It is only pro­hib­ited to take over other peo­ple’s works in their con­crete form. Ideas, on the other hand, are not eli­gi­ble for pro­tec­tion.
2. How­ever, if you need the orig­i­nal of the third-party work, obtain per­mis­sion to use it. As a rule, it is suf­fi­cient if the rights holder con­firms in writ­ing — also by email — that you may incor­po­rate the work into your openly licensed work, edit it if nec­es­sary and pub­lish adap­ta­tions.

But beware: Such per­mis­sion does not enti­tle you to co-license the third-party work! Co-licens­ing already exists if you do not indi­cate that the third-party work is excluded from the open license. In order to be allowed to co-license another per­son’s work, you must be able to grant oth­ers rights of use to the extent per­mit­ted by the respec­tive open license. This means that you must either exclu­sively have all the rights of use to the work that you also want to grant to oth­ers under the open license or at least such far-reach­ing sim­ple rights of use that enti­tle you, among other things, to all known and unknown types of use, includ­ing sub­li­cens­ing, for an unlim­ited period of time and ter­ri­tory and irrev­o­ca­bly. These rights must be explic­itly granted to you by con­tract.

If there is no cor­re­spond­ing agree­ment, you can­not grant any rights to the work to third par­ties. If you license some­one else’s work even though you do not have the nec­es­sary rights of use, you are not only com­mit­ting a copy­right infringe­ment, but also putting the users of your work in a dif­fi­cult sit­u­a­tion. They rely on your license infor­ma­tion and assume that you have the cor­re­spond­ing rights to use the work. How­ever, users can also be warned if they use your work with third-party con­tent with­out reflec­tion and share it pub­licly. This is because copy­right law does not pro­tect good faith in the rights of the licen­sor. Instead, there is an oblig­a­tion to check whether the work is free of third-party rights before using it.

So how can you ensure that you have all the nec­es­sary rights to the work? There are four ways to do this:

1. You agree infor­mally with the rights hold­ers that you may use the work in your openly licensed work, but explic­itly exclude it from the license: “This mate­r­ial is licensed under CC BY 4.0. The work by XY (title, page, URL if applic­a­ble) is not cov­ered by the license”.
2. You agree with the rights hold­ers that they will openly license their work them­selves and then use it in accor­dance with the terms of the agreed open license. You can also agree that you are autho­rized to pub­lish the work under the agreed license.
3. They have exclu­sive rights of use to the work trans­ferred to them by con­tract. As such a trans­fer of rights excludes the author from using the work, a reser­va­tion of rights could be agreed for them. In this case, the copy­right holder may con­tinue to use the work. This is called lim­ited exclu­siv­ity.
4. You have sim­ple rights of use granted to you irrev­o­ca­bly for all types of use, unlim­ited in time and ter­ri­tory, with the option of sub­li­cens­ing. In this case, the copy­right holder retains all rights to the work, but you may license the work openly.

You can find more infor­ma­tion on the above options in the blog post Author con­tracts for OER by Paul Klimpel for OER.Info.

Tip: We have cre­ated cor­re­spond­ing sam­ple tem­plates for con­tract con­stel­la­tions for you, these are pro­vided with the license, CC 0. Be sure to adapt the tem­plate to your spe­cific indi­vid­ual case and con­tact our sup­port team if you need help fill­ing it out.

Sam­ple tem­plate Grant­ing rights of use
Sam­ple tem­plate Trans­fer of rights of use