Copyright Status

When creating or adapting OER it is important to consider copyright. This is also true when considering content generated by AI.

United States

The United States Copyright Office (USCO) has launched a copyright initiative on AI-generated materials. As of January 2025, they've issued two reports: Part 1 - Digital Replicas, Part 2 - Copyrightablity, and Copyright Registration Guidance for Works Containing AI-Generated Materials.

At the moment, USCO will not register any works under copyright that are entirely generated by machines due to US copyright law's requirement of human authorship (see Copyright Registration Guidance for Works Containing AI-Generated Materials). Works including GenAI-generated images, such as a human-authored book containing GenAI-generated images, can still be registered, but the images are not protected under copyright.

^{"Guidelines for Using Generative AI Tools in Open Educational Resources" by Affordable Learning Georgia}^{is licensed under CC BY 4.0}

Canada

In ChatGPT and Open Education, Clint Lalonde shares that "legally in Canada, it appears AI-generated content does not fall under the Canadian copyright act and is therefore not copyrightable and in the public domain, according to analysis from Victoria Fricke of McGill Law. However, this could change quickly as international laws change and adapt."

^{"ChatGPT and Open Education" by Clint Lalonde, BCcampus is licensed under CC BY 4.0}

What does this mean for OER?

Based on the current copyright landscape, authors can use content generated by AI in the OER they create.

Creative Commons Guidance

In the current context, AI technologies and practices are rapidly evolving. Governments are scrambling to regulate AI, and courts are hearing cases regarding the application of existing law. With this in mind, if you create works using generative AI in your OER, you can still apply a CC license to the work you create. The CC license will apply to the creative work that you contributed as a human being to the final product, even though the portion produced by the generative AI system is not copyrightable.

For works that do not involve a significant degree of human creativity, a CC0 license clarifies the intellectual property status of the work, and ensures the public domain grows and thrives.

^{Understanding CC Licenses and Generative AI" by Kat Walsh, Creative Commons is licensed under CC BY 4.0}

Using generative AI in OER should be done with care, and the content should be vetted appropriately by experts. While it's not required to attribute generated content like you would openly licensed content, current best practices recommend transparently explaining where and how AI was used in the creation of an OER.

Examples of Content Transparency

In Critical Worlds: A Targeted Introduction to Literary Analysis, Liza Long used AI to create some of the content in the book. In Chapter 2 - Using Generative Artificial Intelligence Tools in Literary Analysis, she explicitly states how she uses it within the chapter.
This chapter is an example of hybrid writing, which means I have written some of the text with assistance from ChatGPT, but I take overall responsibility for the tone and content of the chapter. 
Long also provides acknowledgement of how AI was used to create the image of android sheep grazing in a digital meadow in the image's caption.
This image of android sheep grazing in a digital meadow was created in a chat with Microsoft Copilot, which uses the DALL-E3 image generator.
^{Critical Worlds Copyright © 2024 by Liza Long is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License, except where otherwise noted.}

In Generative Artificial Intelligence: Practical Uses in Education, Troy Heaps issues a disclaimer in the front matter of the book. Here is a snippet of what that looks like in the book:
AI Use in the Development of this OER

As mentioned in the Supporting Students to Use AI Effectively section, modelling transparent and responsible use of AI is an important step in teaching effective and ethical use of AI. In order to model this transparency, here is a list of ways that AI tools have been used to produce or improve content for this OER: turning a set of notes on a topic into a draft chapter outline; generating suggestions for examples and case studies; scanning lengthy resources for suggestions of which sections to read for information about practical uses for AI tools in education; finding a term that wouldn’t easily come to mind (“what’s it called when students learn something but it wasn’t the primary learning outcome?; as a thesaurus (“what are twenty other ways to say ‘AI tools can be used to…'”); for suggestions of how to rephrase sentences that ended up too long, convoluted, or disorganized; and generating first drafts of some image alt texts. 
^{"Disclaimer regarding the use of artificial intelligence in this textbook" by Troy Heaps, OpenED Manitoba is licensed under CC BY 4.0}