Preface
This set of guidelines is intended for USG instructional faculty and staff when creating new open educational resources (OER) or revising existing OER using generative artificial intelligence (GenAI) tools. These guidelines assume that USG faculty and staff do not have access to the training datasets or validation datasets a generative AI tool uses in order to train its neural networks, and these guidelines are therefore focused on the use of the output of many generative AI tools.
US Copyright Office (USCO) Reports on AI and Copyright
The US Copyright Office released a report on copyrightability in January 2025. Here is a quick breakdown of what their findings mean for OER creators:
Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change.
The Copyright Office does not think any new AI laws need to be passed in order for legal questions about copyright and AI to be answered in courts; creators do not need to wait for legislative action before using generative AI.
-The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output.
-Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material.
Regardless of how the models were built, the Copyright Office sees the use of AI tools by authors as the same as using any other software in the creation process. Authors still have copyright when creating some of their work using AI tools.
-Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
-Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs.
Using AI tools goes beyond just text prompts. If you use your own works to create AI remixes, you still have copyright of your own work as it appears in the AI-generated outputs. Whether or not your own work is still prominent in an output will be a case-by-case situation in courts.
-Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.
-Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.
Existing copyright law is clear that machine-generated works are not copyrightable. Most prompts, including the ones used as examples in the report, could result in multiple different outputs with identical prompts. Therefore, prompting an AI tool to create a work does not make that purely machine-generated work copyrightable by the prompt's creator.
The case has not been made for additional copyright or sui generis protection for AI-generated content.
Even if an AI tool suggests that you mention the use of that AI tool in your attributions, there isn't a legal case for doing so. Just as you would not need to mention the use of Microsoft Word in the creation of a .docx file, you do not need to mention the use of a particular AI tool when attributing a work. Whether or not it is ethical to mention the use of AI in the creation of a work is different from these comments from the Copyright Office on legality.
Copyright & Trademark Fair Use in Generative AI
Recommended Resources
Search engines and generative AI models often use resources on the web under copyright to build the model, train the model, and validate the model, all of which may be considered a transformative use that fits within Fair Use within court cases. Questions about Fair Use within model building will be resolved within courts, and those findings will not affect the legal status of the prior use of these models. Regardless, when publishing OER which uses GenAI to create any part of the new resources, be sure to check on some general information on Fair Use. ALG recommends the following resources:
Code of Best Practices in Fair Use for Open Educational Resources for the intersection of copyright Fair Use and OER.
INTA Fair Use of Trademarks (Intended for a Non-Legal Audience) fact sheet for how Fair Use works in trademark law.
Checking Prompts and Outputs
Prompting for Transformative Use and Avoiding Individual Work Replication
Using generative AI tools will normally fall under a different legal conversation than legal questions on building models. Regardless of questions of copyright legality, educators have an ethical obligation to use AI tools in good faith, allowing for the transformation, education, and critique without knowingly replicating single copyrighted or trademarked works.
Assess using your due diligence whether or not the output of the GenAI tool explicitly infringes on copyright focusing on your prompts:
- Example: Prompting a GenAI tool to create a “painting of Sonic the Hedgehog” and then using the output as a decorative image without educational value may explicitly infringe on trademark law with the publisher of Sonic the Hedgehog games, Sega.
- Example: Prompting a GenAI tool to create an “abstract book cover featuring a beach and a whale” may or may not result in GenAI output that infringes on an artist's copyright. After doing a due-diligence search for identical works and finding none, this work is likely to be able to be included in an open resource and open-licensed as such.
- Example: Prompting a GenAI tool to write “a three-paragraph description of hydrocarbons” may or may not result in GenAI output that infringes on an author's copyright. After doing a due-diligence search for identical unique phrases and finding none, this work is likely to be able to be included in an open resource and open-licensed as such.
There are still open questions about who should be legally liable for infringing works created using AI tools. Regardless of the legal status of this liability, doing due-diligence searching for infringement and not prompting directly towards infringement are important for OER authors using AI tools. Note that there is still no copyright protection in the United States for styles or ideas; keep a lookout for infringement on individual works primarily for legal reasons.
Due-Diligence Searching for AI Copyright Infringement
To check whether or not an AI output has duplicated a particular work under copyright:
For text, search the web. Ensure that this exact language does not exist within copyrighted web content.
For images, do a reverse image search. Ensure that the image generated by the GenAI tool does not duplicate copyrighted web images. (Tools such as TinEye and Google Images can conduct a reverse image search.)
Mixing OER and AI
Ethical Use of Existing OER with Generative AI
It is possible to prompt a large language model (LLM) such as GPT to create new works using existing OER. If you are doing so, keeping the open license of the existing OER and attributing the original works would keep the openness of the original work alive and provide a history of where each resource came from. While there are outstanding questions on liability when directly replicating single works using AI tools, these questions shift to ethics when open licenses have already given permission for revising and remixing. It is an ethical practice to acknowledge and, if possible, properly use this single original resource's open license on works that incorporate this output of your GenAI prompt.
Example: “Using https://openstax.org/books/introduction-python-programming/pages/2-2-type-conversion (OpenStax Introduction to Python Programming's section on Type Conversion), create a one-paragraph summary of type conversion.” This open textbook is under a CC BY 4.0 International License, so any use of the output should include an attribution of the original work.
If you are using an OER with an SA (ShareAlike) designation in the license to create a new work using Gen AI, an ethical use of this output would be to attribute the original work and share your new work under the same open license as the original.
When using more than one OER to create a new work, use the same guidelines as remixing multiple OER by complying with and applying the most restrictive open license:
Example: “Using https://openstax.org/books/algebra-and-trigonometry-2e/pages/1-4-polynomials (OpenStax Algebra and Trigonometry's section on Polynomials, CC BY) and https://sl2x.aimath.org/book/aafmt/chapter9.html (Elementary Abstract Algebra's chapter on Polynomials, CC BY-NC-SA), create a one-paragraph summary of polynomials.” The resulting derivative work using the output should be shared under a CC BY-NC-SA (Attribution-NonCommercial-ShareAlike) license.
When creating assessments using a SA restriction, it's possible that you would not want to share these assessments with the public. In this case, an ethical use of the output would be to credit the original source, assign the same license to your new materials, and provide a way for other faculty to contact you and receive this newly-generated content.
Combining AI-Generated Content and Creative Commons-Licensed Content
When combining OER with materials created by using Generative AI, use the same labeling that you would if you combined Public Domain materials with your Creative Commons work. Mark them as Public Domain per usual. If you would like to be more transparent in the interest of ethics and comprehensiveness, provide explanatory text in a place like the preface to a textbook or an attributions slide.
For more on remixing CC-licensed works with other materials: CC Certification Course: 4.4 Remixing CC-Licensed Work, CC BY 4.0 International License.
Other Helpful Resources
These guidelines are not intended to give advice on how to use GenAI in the classroom. Please consult the following for guides on GenAI and pedagogy:
- Dr. Jeanne Beatrix Law and Dr. Tamara Powell of Kennesaw State University, through USG's Coursera instance, have created an open course on Education and AI.
- Administrative and pedagogical guides using GenAI are included in Chapter 4 of Generative Artificial Intelligence: Practical Uses in Education by Troy Heaps, CC BY 4.0 International License, Open Ed Manitoba.
Update History
02/17/2025: Replaced previous US Copyright Office comments with the new January 2025 Copyrightability Report.
08/14/2024: Updated based on a webinar on AI in Open Education as hosted by Creative Commons. Special thanks to Meredith Jacob and Will Cross for their authorship and presentation of this webinar.
09/11/2024: Further clarified the difference between a legal use and an ethical use when pointing a generative AI tool toward a single open-licensed work.
Acknowledgments
This guide would not be possible without the insights and contributions of our Affordable Learning Georgia Faculty, Library, and Design Champions and the University of North Georgia Press.
Except where otherwise noted, content on this site is licensed under a Creative Commons Attribution 4.0 International license.