- What is an open licensed asset?
- When do you need to gain permission?
- When is permission not needed?
- Copyright exceptions
- Gaining permission from suppliers and commissioned creators – new material
- Gaining permission from unpaid collaborators or members of the public – new material
- Gaining permission from other people – pre-existing material
- Using the Heritage Digital Licence Agreement to gain permission
This guide is to help you and your heritage organisation navigate through the process of gaining permission from other people to include their copyright material in your open licensed asset. Open licensed assets are types of creative content which are made available for everyone to freely use, share and adapt under an open licence. An open licence is an upfront permission allowing anyone to share and adapt creative content without needing to contact the rights holder. Many funders, like the National Lottery Heritage Fund, make open licensing a requirement to ensure funded materials are made freely available to the public.
If you want your audience to reuse your assets easily, an open licence is a clear invitation to do so. However, you need to obtain specific permission from the rights holder to publish under an open licence otherwise you will not be lawfully allowed to make the asset available.
The copyright material you want to incorporate into your open licensed asset may exist already, or the material may be newly created for you by suppliers, commissioned creators, unpaid collaborators or members of the public. You will need to gain permission to use the copyright material in your open licensed asset regardless of whether the copyright material is new or pre-existing. However, if your open licensed asset only contains new material created directly by you or employees in your organisation, you or your organisation will own all the copyright and have no need to use this guide.
If you want to incorporate someone else’s material into your open licensed asset, it is your responsibility to obtain permission from the rights holder(s). Materials such as images, artworks, text, music, or videos are automatically protected by copyright and cannot be reused or repurposed without permission. The rights holder to the material would be the creator unless the material was created as part of the creator’s employment or transferred in a contract to a new rights holder. There is an infographic on how to gain permission to use copyright material on social media and websites. Open licensing is an additional request and should be discussed with the rights holder as soon as possible. The rights holder has complete freedom to grant or refuse permission to incorporate their copyright material into your open licensed asset.
If the rights holder agrees to your request, you should help them decide whether to allow their copyright material to be openly licensed in the same way as the rest of the asset, or licensed for use in the asset only.
If the rights holder refuses permission, this may affect your plans for your open licensed asset, so it is important to ask permission in the early stages of your project and be prepared to find alternative material if permission is refused.
If the material will be created especially for your open licensed asset by suppliers, commissioned creators, unpaid collaborators or members of the public, there is the opportunity to make open licensing a requirement when you commission or request the content.
There are very few circumstances when copyright permission is not required.
If copyright has expired, the material passes into the public domain and can be used freely without permission. Most material used online is still in copyright as it lasts a long time. Copyright usually protects material during the lifetime of the creator of the material plus 70 years after their death. In 2022, copyright has usually expired for any material where the creator died before 1952.
You can use other people’s open licensed assets without permission as long as your use is covered by the licence terms. For example, if you want to incorporate material made available under the Creative Commons-Attribution licence, you need to follow the licence terms to ensure you credit the creator, provide a link to the licence and indicate if any changes were made. However, you need to gain permission if you want to adapt material and the licence terms specify “No Derivatives”.
You can link to someone else’s content as long as you link to a free publicly available website. You should not link to infringing content.
There are very few exceptions to copyright law which apply to open licensed assets. Copyright exceptions differ from country to country so you need to be careful using them for online resources. However, the quotation exception often appears internationally and therefore potentially could be used by heritage organisations to justify the online use of copyright material.
The quotation exception may allow you to use an extract of someone else’s material as long as the extract is as short as possible for your specific purpose, the copyright material has already been published (including online) and you provide sufficient acknowledgement (ideally the title, author’s name and copyright credit). Your use also needs to remain fair to the rights holder, for example by demonstrating that you are not unduly depriving the rights holder of a licence fee or the use of the extract supports exploration of the material or a specific theme. You should always be prepared to justify why you have relied on a copyright exception instead of asking permission. It is higher risk to rely on a copyright exception if using copyright material in an open licensed asset due to the nature of an open licence. You should ensure that any use of a copyright exception complies with your organisation’s approach to risk.
If you are paying suppliers to create new material for your open licensed asset, it is recommended to make open licensing a requirement in the contract so it is clear that you will not pay for materials unless they are made available for reuse under an open licence. Supplier and commissioned creators include photographers, filmmakers or resource writers who are not employed by your organisation. The National Lottery Heritage Fund has funded a guide to copyright and working with suppliers to create digital content which explains how a written agreement will help a heritage organisation outline what it expects from suppliers in terms of rights to use the commissioned material. The agreement should include the requirement to make any new materials available under an open licence; there is no need for a separate licence agreement. Some suppliers may charge an additional fee for the right to make their materials available under an open licence.
Remember if your open licensed asset only contains new material created directly by you or employees in your organisation, you will own all the copyright and have no need to gain permission to publish your content under an open licence.
For assets created with NHLF funding, there is an expectation that all new materials created during the project will be made available under the open licensing requirement. You can share the NHLF Digital guide: working with open licences with the suppliers and commissioned creators to explain the benefits of open licensing. It is possible to request an exception to the open licensing requirement from the NHLF and use a more restricted licence which would only allow you to use the copyright material in the open licensed asset with a copyright credit clarifying the material is still protected by copyright.
If you are not paying contributors to create new material for your open licensed asset, you need to request specific permission from the contributor to publish those materials under an open licence. Examples of contributions from unpaid collaborators include images, videos and writing created by volunteers, members of the public or participants in workshops.
The rights holder to the material would be the creator unless the material was created as part of the creator’s employment or transferred in a contract to a new rights holder. Even though you may have clearly stated that any contributions will be included in the open licensed asset, it is recommended to obtain specific permission due to the nature of an open licence which allows anyone to share and adapt creative content without needing to contact the rights holder.
You could use the Heritage Digital Licence Agreement to gain permission and encourage the unpaid collaborators to choose to make their contributions available under the CC BY licence (Option A). You need to retain signed copies of any permission granted. This evidence will be essential in the event of any dispute.
If you want to include existing copyright materials in your open licensed assets, you need to request specific permission from the rights holder to incorporate those materials in any manner and additional permission to allow publishing under an open licence.
The Infographic will help guide you through the steps to gain permission from identifying the material to finding the current rights holder(s) and requesting permission. You need to retain signed copies of any permission granted. This evidence will be essential in the event of any dispute.
It is recommended to make it easy for the rights holder to say yes to open licensing. You could use the Heritage Digital Licence Agreement to gain permission which has a section for you to provide details of your open licensed asset and the reasons why you want the whole resource to be accessible to the widest possible audience under the Creative Commons Attribution licence. In practice this means promoting the benefits of open licensing and being very clear why you consider open licensing to be essential for the resource you want to create. The rights holder may be interested in the promotional opportunities they will have from making their content available under an open licence as well as expanding access to heritage and enabling new, innovative and entrepreneurial uses. The benefits of publishing under an open licence are listed in the National Heritage Lottery Fund Open Licensed assets guide and the National Heritage Lottery Fund’s Digital guide: working with open licences which can be shared with the rights holder to strengthen your argument.
It may be helpful to consider the nature of the copyright material which you want to incorporate into your open licensed asset. If the material was created for commercial gain, and the rights holder regularly charges licence fees for other organisations to use the material, it may be less likely that they will agree to including the material in an open licensed asset.
The Heritage Digital Licence Agreement is designed to be a flexible template which gives the rights holder several options for permitted uses grouped into Open Resource Permitted Use and other Organisation Permitted Uses.
The Heritage Digital Licence Agreement provides other examples of other permitted uses to allow your organisation to use the material in other ways without needing to check on a case by case basis. A rights holder should have complete freedom to select as many or as few permitted uses as they are comfortable with for their copyright material. However it is helpful for the rights holder to have as much context as possible to help them reach their decision, especially around the benefits of open licensing and the details of your openly licensed asset (the Open Resource).
You need to retain signed copies of any permission granted, including the Heritage Digital Licence Agreement. This evidence will be essential in the event of any dispute.
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Please attribute as: "How do I gain permission to use other people’s material in my open licensed asset? (2022) by Debbie McDonnell, Naomi Korn Associates supported by The Heritage Fund, licensed under CC BY 4.0