Navigating copyright laws in educational content creation

Haremi team
12 November 2024

Learning providers frequently incorporate third-party content into their resources to enhance the quality, relevance and impact of their products. Third-party content can include everything from written material, data, illustrations and photographs in a printed or digital format, to multimedia elements like graphics, audio and video.

The use of third-party content in educational resources is governed by strict copyright laws which typically require a grant of rights or permission from the copyright holder in order for that content to be used. As a general rule, the copyright of any published material will be owned by the either the publisher or the original content creator.

At Haremi, we often build third-party copyright clearance into our project workflows to ensure that any copyrighted material is used in accordance with copyright law, and that the appropriate permission has been granted and documented prior to publication. This article takes you through our typical considerations for rights and permissions clearance when developing learning resources and highlights the relevant aspects of international copyright laws.

Understanding copyright fundamentals

Copyright is a legal mechanism that grants the creator of original work exclusive rights to its use and distribution, typically for the creator's lifetime plus a number of years, depending on the jurisdiction. For the purposes of educational resources, copyright protection generally covers written works, multimedia assets, online course content and other pedagogical material.

International Copyright Law

The Berne Convention for the Protection of Literary and Artistic Works, to which both the UK and US are signatories, mandates that copyrighted works are protected in all signatory countries without the need for additional registration. This international treaty ensures that educational content developed in one member country has copyright protection in all other member countries, provided the content meets the 'originality threshold' (Article 2 of the Berne Convention).

Copyright Law in the United Kingdom

In the UK, content is subject to copyright protection for the life of the author plus 70 years, according to the Copyright, Designs and Patents Act 1988. The UK recognises a concept known as 'fair dealing', which allows limited use of reasonable amounts of copyrighted material without permission in specific circumstances, and permits the use of copyrighted material for certain types of research, private study, educational instruction, criticism, review, or reportage (CDPA, Section 29). The educational use exception cannot be used for commercial purposes, so it is unlikely to apply to most educational resources produced by learning provider businesses.

Copyright Law in the United States

In the United States, copyright is regulated by Title 17 of the U.S. Code. Educational materials, whether print or digital, are subject to copyright protection for the life of the author plus 70 years (17 U.S.C. § 302). However, U.S. copyright law accommodates educational uses under the 'fair use' doctrine, such as for teaching, scholarship, or research (17 U.S.C. § 107).

Rights and permissions clearance

Obtaining the right permissions is crucial to avoid copyright infringement. The clearance process usually involves several steps:

Identification: Determining if the content is protected by copyright and, if so, who the copyright holder is.
Assessment: Evaluating how the content will be used and whether this usage requires permission. Steps 1 and 2 are sometimes referred to as a 'permissions trawl'.
Clearance: Contacting the copyright holder to negotiate a licensing agreement for the use of their content, including the terms by which it can be used and any fees that are to be paid. This should done well ahead of publication of your product, as the time it takes different copyright holders to respond can vary quite a lot.
Documentation: Storing records of all permissions for future reference.

In educational publishing, licensing agreements are usually necessary when incorporating parts of a copyrighted work in a revenue-generating product or service.

Negotiating licensing agreements with third-party rights holders

Negotiating licensing agreements with third-party rights holders is a nuanced process that requires an understanding of the appropriate legal framework and the purpose of the content to be used. Effective licensing agreements are essential for ensuring that third-party content can be used legally while respecting the rights of the owners. Negotiating a licensing agreement for the use of third-party content in educational resources typically involves several stages:

Research: Identifying the correct rights holder and contacting them.
Terms proposal: Proposing the intended use of the content.
Negotiation: Discussing the terms, including the fee and any restrictions on the use of the content. Some organisations will specify a fixed non-negotiable fee.
Agreement drafting: Formalising the agreement in writing, which may require legal advice to ensure that all terms are clearly defined and legally binding.
Signing and implementation: Finalising the agreement with signatures from all parties and ensuring the terms of the agreement are properly followed.

Typical terms in licensing agreements

Licensing agreements for educational content often include the following terms:

Scope of use: Specifies what the content will be used for, such as in textbooks, digital resources, or online courses. It might be necessary to specify the print-run size, or number of users in the case of digital products.
Duration: Defines how long the content will be used. This can range from a single academic year to several years, depending on the educational product's lifecycle.
Territorial rights: Outlines the geographical areas where the content can be used. This might be specific to a country, region, or globally.
Exclusivity: Determines whether the rights granted are exclusive or non-exclusive. Exclusive rights prevent the rights holder from licensing the content to other parties for the same uses.
Sub-licensing: States whether the educational content supplier has the right to sub-license the material to other parties, which is particularly relevant for content distributed through multiple channels or platforms.
Royalties and payment terms: Details the financial arrangements, including upfront payments, royalties based on sales, and any minimum guarantees.
Credit and attribution: Specifies how the rights holder should be credited in the educational materials.
Warranties and indemnities: Covers assurances provided by the rights holder regarding their ownership of the content and indemnification for copyright infringement claims.
Termination and renewal: Defines conditions under which the agreement can be terminated and the terms for renewal.

Haremi's rights and permissions services

Navigating third-party rights and permissions can be a complex and time-consuming process. Haremi offers a fully end-to-end solution for the clearance of third-party content, identifying what needs to be cleared, requesting permissions with the relevant rights holders and fully documenting all grants of rights within a project's workflow. We can also provide:

Due diligence and permissions trawls: Conducting thorough copyright checks of authored material to identify and log all content that requires third-party licensing, including suggesting alternative sources and options if a licence is likely to be difficult or costly to obtain.
Permissions re-clearance: Re-clearing permissions that have expired or for a new edition of a product.
Automated plagiarism checks: Using online tools to identify potential plagiarism and copyright issues in written content. We can also detect AI-generated content.
Copyright training: Providing training for team members on copyright laws and the processes required for effective compliance.