This is an automatic translation generated by artificial intelligence. May contain errors.
At OfiLibre we often receive many questions 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 on materials we generate within the university.
Below, we set out the scenario, the doubts it raises, and the specialist’s response.
First factual scenario
We have certain material (notes, slides, videos) created by its authors, in which they have included some images (or, in the case of videos, short clips of a few seconds from videos) from third parties. These could be, for example, images or clips from TV series (such as The Simpsons and Futurama) or 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 factual scenario
1. Can they avail themselves of the provisions of the LPI on the inclusion of third-party works for analysis or criticism (1) or any other provision, so that they can publish the material under the indicated license?
(1)–Consolidated Text of the Intellectual Property Law, Royal Legislative Decree 1/1996 of 12 April (Article 32: Quotations and reviews and illustration for educational or scientific-research purposes, Section 1): “The inclusion in one’s own work of fragments of others’ works of a written, sound or audiovisual nature, as well as of isolated works of a figurative plastic or photographic nature, is lawful, provided that the works have already been disclosed and the inclusion is made by way of quotation or for their analysis, commentary or critical assessment. Such use may only be carried out for teaching or research purposes, to the extent justified by the purpose of that inclusion, and indicating the source and the name of the author of the work used.”
Response:
The answer is given in the LPI article cited. The authors of the notes, slides (presentations) or videos may include fragments of other written, sound or audiovisual works in their own works as long as they meet the following conditions set out in the law:
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That the foreign fragments come from works already disclosed, i.e., that no fragments from unpublished works are included.
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That the inclusion of the foreign fragment in one’s own work is made to quote, analyze, comment on or present a critical assessment of it.
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That the purposes of the work that includes the foreign fragments are teaching or research.
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That the source and the name of the author are indicated. In many cases this is not possible (typical case of old works), so it would suffice to include the greatest possible information indicating where it was obtained (a book, a URL, a sound fragment published by a producer, an institutional file, a private collection…).
2. Does the fact that these third-party works are used purely illustratively, for purely aesthetic reasons, or directly to comment on or criticize them in the educational context of the material make any difference that should be taken into account?
Response:
Precisely, the use purely illustratively 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 purely illustratively is precisely what is understood as inclusion by way of quotation. Therefore, it would be lawful as long as the requirements mentioned above are met: (i) that the fragment comes from a work already disclosed, (ii) that the inclusion is made to quote, analyze, comment on or present a critical assessment, (iii) that the purposes of the work that includes the fragments are teaching or research, and (iv) that the source and the name of the author are indicated.
As for the use of an image for purely aesthetic reasons, such as the use of a Mickey Mouse to explain the relationship between the extension of the public domain and Disney’s rights, or an image of Sleeping Beauty and the Prince as an illustration of the lack of consent in a kiss, for example, this would be a different case from text, since while a fragment of text can be used, an image is understood to be used in its entirety (the inclusion of “isolated works of a figurative plastic or photographic nature” is explicitly stated in the LPI). In this case, the different judgments of the Provincial Courts (2) have allowed the inclusion of plastic works when their function is to “illustrate, complement, instruct or facilitate.” Moreover, it is relevant to point out that such inclusion of an image in a presentation for teaching purposes does not generate an economic devaluation of the included work nor does it prevent its normal commercial exploitation, so no harm is done to the rights holders of that work.
(2)Judgments of Section 14 of the Provincial Court of Madrid of 23 December 2003, Section 15 of the Provincial Court of Barcelona of 31 October 2002 and Section 13 of the Provincial Court of Madrid of 26 February 2007.
3. In the cases in which they could do so, if any, should they indicate in any way in the license-granting text that these third-party works are not included?
Response:
In one’s own work, it must be marked so that there is no doubt as to which part of the work is the foreign fragment and which part is one’s own.
In addition, it must be indicated that the third-party works are not included under the CC license of the teacher’s work, which is done by one system or another depending on the type of work:
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In text format, by using quotation marks, italics or a separate paragraph, plus an indication of the source and authorship of the foreign fragment.
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In audiovisual works, it is done in the credits section, although it is possible to indicate it by means of subtitles.
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In sound works, it would be advisable to use embedded metadata and, if this were not possible and it were a narration, to mention the source and authorship of the foreign fragment in that narration.
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If it is software, by indicating in a text file in the source code which part is one’s own and which part is foreign, without prejudice to the fact that it is also possible to indicate it in the code itself.
To indicate this aspect in works in text format, the following formula could be used:
“The present work is licensed under CC-[xx]. The following foreign works have been quoted therein, indicating the name of the work, the authorship and the 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 factual scenario
We have 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 fragment of the work whose structure they follow in the material.
Questions about the factual scenario
1. Can this material be distributed under one of the indicated licenses?
Response:
A structure is part of a work. The arrangement of knowledge in ordered categories constitutes an intellectual work and is therefore susceptible to authorship and subject to the LPI regulation.
However, this will only occur in cases where such 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 freely used by anyone in the creation of one’s own work.
It must also be taken into account that if the structure is something traditionally accepted in academia since time immemorial or is part of a description of knowledge that has been included in a study plan published by a public administration (public universities are), then it would be a structure that is in the public domain, either by the passage of time (structures consolidated since time immemorial) or by application of Article 13 of the LPI (in the case of study plans) since it would have the status of a legal norm.
If the structure is itself an original work, it can be used by the teacher, since it could also fall under the concepts of “quotation or for its analysis, commentary or critical assessment,” as the structure is being used to analyze the content of the work. Moreover, a typical work is the review, where on numerous occasions the content of the reviewed work is followed and explained without this constituting an infringement of copyright. In this case, the same requirements as those indicated in the first scenario analyzed should be met, namely that (i) the fragment—the structure—comes from a work already disclosed, (ii) the inclusion is made to quote, analyze, comment on or present a critical assessment, (iii) the purposes of the work that includes the fragments are teaching or research and (iv) the source and the name of the author are indicated.
On the other hand, if the structure is a non-original work or is contained in a legal norm, its use is free.
2. Is it advisable / mandatory to mention the work whose structure is followed in some way, at the point where the license is granted?
Response:
Yes, for two reasons. First, it would be legally mandatory under the provisions of the LPI, Article 32.1; second, it would be ethically advisable given the necessary intellectual honesty that must characterize academic activity.
In short, in the text, slide or other work in which the foreign structure is included, the origin of the same and the fact that said structure is the work of another person must be indicated. The following formula could be used:
“The present work is licensed under CC-[xx]. The structure of [Name of the WORK] belonging to [Name AUTHOR/A], accessible at [URL], [where applicable publisher, ISBN, DOI…] is used therein, said structure being used by way of quotation, analysis, commentary and critical assessment.”