Common Myths About Fair Use in Open Education

Misconceptions about fair use permeate educational practice, creating “copyright anxiety” that causes educators to make pedagogically inferior choices and abandon beneficial projects. These myths—that all educational use is automatically fair use, that internet content is freely reusable, that crediting a creator makes any use legal, that permission must be sought first—persist despite legal clarity to the contrary. The source of these misconceptions is rarely individual educators’ negligence but rather systemic gaps: copyright instruction in library schools is minimal, guidance documents often contain inaccurate information, and copyright holders’ aggressive enforcement messaging has created cultural narratives equating all unlicensed use with theft. By understanding what fair use actually is—a flexible, reliable, broad-based right that belongs to educators and serves pedagogical purposes—and what it is not, educators can make confident, legally defensible decisions about incorporating copyrighted materials into open educational resources. This report systematically addresses the thirteen most damaging myths, explains the reality beneath each, and clarifies what fair use truly enables.

The Fundamental Misunderstanding: What Fair Use Actually Is

Before addressing specific myths, essential clarity on fair use’s nature proves valuable. Fair use is not a privilege educators must earn or a defense to assert only if sued. Rather, it is an affirmative right codified in Section 107 of the Copyright Act that permits individuals to use copyrighted works without permission when the use serves specified purposes—including teaching, scholarship, criticism, and research—and meets criteria based on transformative purpose, appropriate scope, and market impact.

The Code of Best Practices in Fair Use for Open Educational Resources articulates the essential principle: “good pedagogy is good fair use practice”. A careful understanding of pedagogical purpose is the foundation of fair use analysis. Educators with sound judgment about what materials serve their students’ learning understand fair use better than lawyers analyzing abstract doctrine. This inversion—granting practitioners authority over their own rights—reflects copyright law’s actual structure: fair use is designed for educators and creators, not against them.

Myth 1: All Educational Use Is Fair Use

The Myth: If I use copyrighted material for educational purposes, it must be fair use.

The Reality: Educational use is favored in fair use analysis, but educational purpose alone does not guarantee protection. The four statutory factors must still be evaluated, and uses can be educational yet remain infringing.

Clear Examples of Educational But Non-Fair Use:

Photocopying entire textbooks: A teacher photocopying a complete textbook to avoid having students purchase it, even though providing free materials is educationally beneficial, is not fair use because the use directly substitutes for the copyright holder’s market and reproduces the entire work. The educational benefit does not overcome the market-substitution problem.
Repeatedly copying same sources: Making multiple photocopies of the same article throughout a school year for different classes from the same source becomes presumptively unfair because the cumulative effect damages the copyright holder’s market.
Linking to infringing material: While linking itself may not constitute infringement, if you direct students to content that is itself infringing, the fact that you do so for educational purposes does not cure the underlying infringement.

Why This Matters for OER: Educators sometimes assume that because their OER is free and educational, any incorporation of copyrighted material qualifies as fair use. This assumption can lead to problematic practices. Fair use analysis requires asking: Is this use transformative (serving a different purpose than the original)? Is the amount appropriate to that purpose? Would this use compete with the copyright holder’s market? Educational context is a favorable factor, but it cannot be the only factor.

The Correct Approach: In educational contexts, apply fair use factors thoughtfully. A history teacher incorporating primary documents for analysis, a media literacy educator analyzing commercial advertisements, a biology instructor using scientific photographs to teach anatomical structure—these are likely fair uses because they are transformative (analytical/pedagogical purpose differs from original purpose) and do not substitute for market purchase. By contrast, photocopying a textbook because it’s free is not fair use, despite educational benefit.

Myth 2: If It’s on the Internet, It’s Free to Use

The Myth: Content is freely available online, so I can use it without permission or licensing.

The Reality: Internet availability and copyright protection are entirely separate issues. Copyright attaches to creative works at the moment of creation, regardless of whether those works are publicly viewable online. Viewing freely does not equal reusing freely.

The Crucial Distinction: Online content is typically “freely viewable” but not “freely reusable”. You can read a copyrighted article on a news website without permission because the copyright holder permitted that viewing. But copying that article to repost on your own website, incorporate into a document, or distribute to students without permission is copyright infringement—unless fair use or another exception applies.

Why This Happens: Search engines and web browsers make copying and downloading trivially easy. The technical ability to copy (one click) creates psychological assumptions about legality. Copyright holders sometimes contribute to confusion by making content easily downloadable, which users interpret as permission to reuse.

Critical Points:

The website owner is often not the copyright holder. A news site may host articles written by freelancers who retain copyright. A repository site may host materials uploaded by various users with mixed copyright status. Seeking permission from the website owner may be fruitless if they do not hold copyright.
Downloading creates multiple copies. When you download content to your computer, you create an electronic copy. Printing creates another copy. The Copyright Act gives copyright holders exclusive rights to reproduction and distribution; each copy created potentially infringes.
Linking is different from copying. Directing students to a URL where they can view copyrighted content is not reproduction; the copyright holder controls whether that content displays. But copying that content and hosting it yourself is reproduction and requires permission or fair use.

For OER Creators: When sourcing materials, distinguish between “I can find this online” and “I can legally use this online.” Just because you can locate copyrighted material freely on the web does not mean you can incorporate it into OER without fair use analysis or licensing. Conversely, for materials truly in the public domain or CC-licensed, internet availability should prompt confident reuse.

Myth 3: If You Give Credit/Attribution, It’s Fair Use

The Myth: If I cite the source and credit the creator, my use is fair use.

The Reality: Attribution is ethically important and good practice, but it has no legal bearing on fair use determination. Crediting a creator cannot transform an infringing use into a fair use.

Why This Myth Is Persistent: Plagiarism (failing to credit ideas or language) is a serious academic crime. Many educators conflate plagiarism with copyright infringement, assuming that proper attribution solves both problems. It does not. Attribution satisfies plagiarism concerns but does not address copyright infringement.

Example Scenarios:

Scenario 1: A teacher reproduces an entire copyrighted article, includes a proper citation, and says “Fair use—educational purposes.” The citation is admirable and ethically correct, but it does not make the use fair. The use involves reproduction of an entire work that competes with the copyright holder’s market. Fair use analysis fails on factors 3 (amount) and 4 (market effect), regardless of proper attribution.
Scenario 2: An OER creator incorporates a brief, transformative excerpt from a copyrighted work, includes full attribution and license information, and properly signals fair use reliance. This use is likely fair not because of the attribution but because the amount is appropriate to the pedagogical purpose, the purpose is transformative, and the market impact is minimal. The attribution is legally unnecessary but ethically important and practically helpful to downstream users.

Important Nuance: While attribution is not required by fair use law, most communities expect it as professional courtesy. The Code of Best Practices recommends signaling fair use through attribution. But this is an ethical and transparency norm, not a legal requirement.

Distinction: Attribution vs. Permission vs. Fair Use:

Concept	Definition	Legal Requirement?
Attribution	Crediting the creator/source	No (ethical courtesy)
Permission	Rights holder’s express consent	Sometimes (unless fair use applies)
Fair Use	Transformative, appropriate use without permission	Legally available right

An OER creator might achieve maximum transparency by (1) obtaining permission where possible, (2) using open-licensed materials explicitly, AND (3) signaling fair use for portions that qualify. But crediting the creator is not the legal basis for any of these; it is independent of them.

Myth 4: You Must Ask Permission Before Using Copyrighted Material

The Myth: Before using copyrighted material, I must request permission from the copyright holder.

The Reality: There is no legal process or requirement to seek permission to claim fair use. You do not need to alert the copyright holder before making a fair use determination.

What Fair Use Actually Requires: Users make independent assessments of whether a use qualifies as fair use based on the four statutory factors. They then proceed to use the material. There are no forms to complete, no notifications to send, no official process to initiate. Fair use is a right that belongs to the user, not a permission granted by the copyright holder.

Why This Myth Matters: Many educators believe they must contact copyright holders before incorporating materials into OER, leading to delays and complications. This belief, while respectful, is legally unnecessary. Seeking permission is optional—a courtesy that can be beneficial for relationship management but is not required.

Permission-Seeking and Fair Use Are Separate Determinations:

You can seek permission and use the material regardless: If you ask for permission and the copyright holder denies it or ignores the request, you can still proceed with fair use if the use qualifies. Being denied permission does not prevent fair use.
Permission-seeking can strengthen fair use: Courts have sometimes found that seeking permission and being denied actually strengthened a fair use claim, as evidence that the copyright holder was aware of the use and had opportunity to respond.
Strategic considerations exist: While seeking permission is not legally required, personal or professional relationships may make it wise. Some creators choose to ask permission as a courtesy, and if refused, document the refusal as evidence that fair use analysis was thorough.

Critical Distinction: Contractual restrictions are different. If you signed an agreement that restricts use (such as a database license restricting redistribution), you cannot claim fair use to violate that contract. But absent such contractual limitation, no permission-seeking is required to claim fair use.

For OER Creators: Rather than delaying projects waiting for permission responses that may never arrive, conduct fair use analysis and proceed. If institutional policy recommends documentation or advance review of fair use decisions, maintain records—but this is internal management, not legal requirement.

Myth 5: Fair Use Covers All Non-Commercial Use

The Myth: If I’m not making money off it, it’s fair use.

The Reality: Non-commercial use is a favorable factor in fair use analysis, but it is neither sufficient nor necessary for fair use. Many non-commercial uses are not fair use; some commercial uses are.

Why This Myth Prevails: Copyright holders frequently emphasize the “noncommercial use” distinction in licensing. CC licenses include a “NonCommercial” option that restricts commercial reuse. This has created cultural understanding that “noncommercial = safe, commercial = risky.” While this heuristic is broadly useful, it is legally oversimplified.

Examples of Non-Commercial But NOT Fair Use:

Copying entire textbook for students: A nonprofit school copying a copyrighted textbook in its entirety to distribute to students (noncommercial, educational, beneficial) is not fair use because it directly substitutes for the copyright holder’s market.
Running an educational website with unauthorized copyrighted content: Maintaining a website teaching students to code by reproducing entire copyrighted software documentation (noncommercial but comprehensive copying) may not be fair use because the amount used and market effect are problematic.

Examples of Commercial But Fair Use:

For-profit educational company analyzing competitor’s materials: A commercial training company quoting a portion of a competitor’s copyrighted course material to critique its pedagogy is likely fair use despite commercial context because the use is transformative (critical analysis differs from original purpose).
Commercial publisher creating derivative works: A for-profit publisher creating educational adaptations of copyrighted scientific papers, incorporating excerpts for analysis in new pedagogical context, may qualify as fair use because the purpose is transformative.

The Four Factors Work Together: The first factor (purpose and character) asks whether the use is transformative. Commercial purposes are disfavoring but transformative commercial uses can be fair. Non-commercial purposes are favoring but non-transformative non-commercial uses may not be fair.

For OER Specifically: OER is by definition free (noncommercial in distribution), which favorably positions fair use arguments. But free distribution does not automatically mean fair use applies; the other factors still matter. An OER creator copying an entire copyrighted work without transformative purpose is still infringing, despite noncommercial status.

Myth 6: Fair Use Is Too Uncertain and Unreliable to Depend On

The Myth: Fair use is entirely subjective and uncertain; you cannot rely on it because any determination you make could be overturned.

The Reality: Fair use is flexible and contextual, but it is predictable and reliable when grounded in documented professional practices and established precedent. The doctrine is over 170 years old with consistent principles.

Where This Myth Comes From: Copyright anxiety marketing by rights holders, combined with legitimate gaps in educator copyright education, has created narrative that fair use is dangerously uncertain. Additionally, scholars analyzing fair use sometimes emphasize its flexibility, inadvertently creating impression of unreliability.

The Crucial Distinction:

Flexible ≠ Unreliable: Fair use doctrine is deliberately flexible to adapt to new technologies, creative practices, and social circumstances. This flexibility is a feature that enables fair use to remain relevant. But flexibility does not mean arbitrary or unpredictable.
Case-by-case analysis ≠ Guesswork: Fair use analysis is fact-specific, but lawyers and judges apply consistent principles. Like all law involving contextual judgment (contract interpretation, negligence standards), fact-specificity does not equal uncertainty.

Evidence of Reliability:

Code of Best Practices has no litigation losses: To date, no community adopting a Code of Best Practices in Fair Use for specific professions has experienced successful legal challenges to uses within the Code’s scope. Documentary filmmakers, media literacy educators, academic librarians—all use fair use regularly based on codes without litigation.
Established precedent: 170+ years of case law and statutory guidance provide clear principles. Courts consistently recognize educational, transformative uses as fair use.
Professional judgment is valid: The Code of Best Practices emphasizes that educators have “the professional skills and pedagogical judgement they need to make good copyright choices”. Fair use doctrine was designed to rely on practitioner judgment, not external permissions.

For OER Creators: Rather than fearing fair use uncertainty, ground decisions in documented best practices, analyze the four factors carefully, document reasoning, and proceed. This documented approach provides defensibility and demonstrates good faith. Institutions backing fair use determinations create additional confidence.

Myth 7: Fair Use Is Only for Criticism and Commentary

The Myth: Fair use only applies when you’re critiquing, commenting on, or parodying a copyrighted work.

The Reality: While criticism and commentary are among the listed purposes in Section 107, fair use applies to a much broader range of uses including teaching, illustration, and any transformative purpose.

What Section 107 Actually Says: The statute provides that fair use may apply to “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research”. Notice that “teaching” is explicitly listed—not as a secondary or derivative category, but as a primary fair use purpose.

Examples of Non-Critical Fair Uses:

Using a historical photograph to illustrate a historical event: Incorporating a copyrighted photograph of the Civil Rights Movement into a history textbook to illustrate the event itself is fair use. The use is not critical commentary on the photograph; it is pedagogical use of the photograph to teach history.
Using an audio clip to teach music composition: Incorporating a 10-second music excerpt into a composition course to illustrate a harmonic technique is fair use. The use is illustrative, not critical.
Incorporating a poem into a literature course: Using a complete twentieth-century poem in a poetry course for students to read and analyze is fair use, even without critical essay about the poem. The teaching/learning context itself provides transformative purpose.
Using a film clip to teach cinematography: Showing a segment of a commercial film to teach framing, lighting, or editing is fair use. The pedagogical purpose is transformative even without critique of the film.

The Concept of Transformative Use Extends Beyond Criticism: Transformative means the new use serves a different purpose than the original. A copyrighted photograph created for journalism is transformed when used for historical education. A commercial film created for entertainment is transformed when used for technical film instruction. This transformation can occur through analysis AND through pedagogical contextualization.

Why This Distinction Matters for OER: OER creators often assume they must critically analyze copyrighted materials to justify fair use. This creates self-imposed limitations. In reality, incorporating materials for illustrative or instructional purposes—without critical analysis—can qualify as fair use. The pedagogical purpose itself is transformative.

Myth 8: Copyright Owners Sue Libraries, Teachers, and Schools All the Time

The Myth: Rights holders frequently take legal action against educational institutions for copyright infringement.

The Reality: Actual court cases involving libraries and schools are rare. While cease-and-desist letters and licensing negotiations are common, actual litigation is uncommon, and damages against educational institutions are limited by law.

What Actually Happens in Copyright Disputes:

Cease-and-desist letters are negotiation tactics, not proof of infringement: A letter demanding licensing fees or threatening lawsuit does not mean infringement occurred. Only a court can determine infringement.
Most threats result in licensing fees, not litigation: Rights holders settle out of court for licensing payments because it is more profitable than litigation. A settlement payment does not prove infringement; it reflects negotiation.
Educational institutions have legal protections: Public educational institutions and libraries are protected by the Eleventh Amendment to the U.S. Constitution, which generally prevents them from being sued in federal court without consent. This dramatically limits rights holders’ ability to sue schools and collect damages.
Damages are limited by statute: Congress set special limits on penalties in cases against schools and libraries, capping potential recovery.

Historical Perspective: Media narratives about copyright enforcement often focus on dramatic cases (such as the Houston Independent School District’s copyright settlement), creating false impression of widespread litigation. These cases involved clear infringement—wholesale copying without fair use analysis—not borderline situations.

For OER Creators: While institutional protection may not apply to individual educators or startup OER initiatives, the rarity of actual litigation against educators using copyrighted materials responsibly suggests that fair use reliance is not recklessly dangerous. Copyright holders’ enforcement activities typically target commercial infringement (file-sharing, unauthorized wholesale copying) rather than good-faith educational fair use.

Myth 9: You Cannot Use an Entire Copyrighted Work Under Fair Use

The Myth: Fair use only permits using a small portion of a copyrighted work. Using a complete work cannot be fair use.

The Reality: While using only the appropriate amount of material is one factor in fair use analysis, using an entire work can qualify as fair use when the entire work is necessary to accomplish the fair use purpose.

Historical Precedent: U.S. courts have long recognized that using an entire work can be fair use in certain contexts. The tradition of making slides from full-page art reproductions in periodicals for educational use exemplifies this principle.

Examples of Entire-Work Fair Use:

Complete photograph: A photograph, by nature, is a unified whole. Using the entire photograph to illustrate a composition principle in a photography course, or to document a historical event in a history textbook, can be fair use. The “amount” factor is neutral because removing portions would undermine the pedagogical purpose.
Entire film for film history analysis: Showing a complete documentary film in a film history course where students analyze cinematography, historical context, and cultural significance qualifies as fair use. The entire film is necessary; using only clips would eliminate the works’ continuity and thematic development.
Entire short story for teaching literature: Using a complete short story (as opposed to a novel) in a literature course for students to read and analyze can be fair use because the entire work is necessary for the literary learning experience.
Complete audio clip for music analysis: A brief audio piece (less than 5 minutes) used entirely in a music course to teach harmonic or rhythmic concepts can be fair use.

The Key Distinction: Courts ask whether the amount used is “necessary and appropriate to accomplish the fair use purpose” rather than applying bright-line rules about percentages. If the pedagogical purpose requires the entire work, taking the entire work may weigh in favor of fair use, not against it.

What Still Constitutes Problematic Entire-Work Use:

Using an entire novel to avoid having students purchase it (substitutes for market; no transformative purpose)
Using an entire film for entertainment rather than analysis (no transformative purpose)
Using an entire copyrighted article as the foundation of a competing work (direct market substitution)

For OER Creators: When incorporating materials, do not assume that using an entire work is categorically prohibited. If the pedagogical purpose requires the complete work—as with photographs, short documents, or primary sources—analyze whether the use is transformative and non-substitutional. The amount used is one factor among four.

Myth 10: Commercial Use Cannot Be Fair Use

The Myth: If someone is making money off a work that uses copyrighted material, it cannot be fair use.

The Reality: Commercial use is a disfavoring factor in fair use analysis, but commercial uses can be fair use when transformative. Courts recognize that transformative commercial uses can benefit society.

Why This Myth Matters: It creates anxiety for educators in for-profit institutions, commercial training companies, and publishers considering fair use. If commercial use automatically precluded fair use, entire educational and publishing sectors would be unable to rely on fair use.

Examples of Commercial But Fair Uses:

For-profit educational publisher creating study guides: A commercial publisher creating brief, analytical study guides that excerpt and critique passages from copyrighted literary works is engaging in fair use. The purpose (analysis, educational support) is transformative even though the publisher profits.
Commercial news organization covering breaking events: A for-profit news outlet reporting on current events, often incorporating brief portions of copyrighted materials (images, video clips) from other sources, relies on fair use. Commercial intent does not eliminate fair use for transformative news reporting.
For-profit training company teaching coding: A commercial training company that quotes portions of copyrighted software documentation to analyze and teach coding practices may claim fair use because the purpose (educational analysis) is transformative.

Why Commercial Status Matters: The first factor asks whether a use is transformative. The Supreme Court has emphasized that copyright holders are not entitled to “absolute monopoly over transformative uses”. A commercial entity’s transformation of a work—using it for a new purpose—can qualify as fair use just as a nonprofit’s transformation can.

What Still Does NOT Qualify:

Republishing copyrighted work in commercial product without transformation (e.g., including full poem in commercial poetry anthology)
Using copyrighted work as foundation of competing commercial product without adding value
Commercial copying wholesale to avoid production costs

For OER Creators: If your OER project is affiliated with a for-profit institution or commercially distributed (even at low cost), do not assume fair use is unavailable. Analyze whether incorporation serves transformative purpose; if so, commercial context is one factor but not disqualifying.

Myth 11: Fair Use Rights Are Waived If You Ask Permission

The Myth: Once you ask for permission, you lose the right to claim fair use if denied.

The Reality: Asking for permission does not waive fair use rights. You can ask for permission, be denied (or ignored), and proceed with fair use claim. In some cases, being denied permission actually strengthens fair use.

What Courts Have Found: Legal precedent indicates that asking for permission and being denied does not prevent fair use claims. In some cases, the copyright holder’s awareness and refusal to grant permission has been interpreted as evidence that the user considered fair use carefully and that the copyright holder had opportunity to respond.

Strategic Considerations:

Asking permission is courtesy, not requirement: From relationship-building and transparency perspectives, seeking permission may be wise. But legally, it is optional.
Denying permission does not prevent use: If you ask, are denied, and the copyright holder later claims infringement, you can still assert fair use. The denial does not change fair use analysis.
Rights holders cannot condition fair use away: If a copyright holder says “You cannot use this material,” they cannot legally prevent fair use through prohibition. Their ownership is limited; fair use users have rights too.

Important Caveat: Contractual Restrictions Are Different: If you signed an agreement (such as database license terms) that restricts reuse, you cannot later claim fair use to violate that contract. But absent contractual commitment, asking permission and being denied does not affect fair use.

For OER Creators: If you are inclined to seek permission out of courtesy or institutional policy, do so. But do not let permission-seeking bottlenecks or unresponsive copyright holders prevent you from using materials that qualify as fair use. Document your fair use analysis; proceed confidently if analysis is sound.

Myth 12: Fair Use Doctrine Was Designed to Favor Copyright Holders

The Myth: Fair use is a narrow exception to copyright holders’ rights.

The Reality: Fair use is not an exception or limitation on copyright holders’ rights; it is a structural feature of copyright law balancing creator rights with public access. Fair use belongs to the public—especially educators—and copyright holders do not get to overrule fair use determinations.

The Constitutional Foundation: The U.S. Constitution grants Congress power to provide copyright protection “to promote the progress of science and useful arts”. This purpose is not “maximize author compensation”; it is “promote progress”—advance culture and knowledge. Fair use is structural to this mission.

How This Matters: Copyright holders sometimes claim that fair use is a murky exception they must defend against. In reality, copyright holders’ rights are the exception; the public domain and fair use are structural features. Creators and users both have rights.

The Constitutional Balance: Copyright law intentionally limits creator rights:

Limited duration: Copyright lasts author’s life plus 70 years (or shorter for works made for hire), not perpetually. Then works enter public domain.
Limited scope: Copyright protects expression, not ideas or facts. A work’s factual content, general organization, and structure cannot be copyrighted.
Fair use rights: Users have rights to make fair use without permission.
Transformative use doctrine: Copyright holders are not entitled to control transformative uses of their works.

These are not exceptions to copyright; they are the copyright system’s structure.

For OER Creators: Fair use is your right. You do not need to apologize for using it or treat it as risky exception. The copyright system was designed to permit fair use precisely so educators could create new works incorporating copyrighted material when necessary. Using fair use is using your rights as intended.

Myth 13: Copyright Holders’ Purpose Is Ensuring Author Monetary Compensation

The Myth: Copyright law exists to ensure authors and creators are paid for their work.

The Reality: Copyright’s constitutional purpose is “to promote the progress of science and useful arts”—advance culture and knowledge. Author compensation is a means to this end, not the end itself. Fair use is part of this system because the public benefit of fair use advances the constitutional purpose.

The U.S. Constitution Says So: Article I, Section 8 of the Constitution explicitly states that Congress has power to grant copyright protection “to promote the progress of science and useful arts.” This language has been repeatedly cited by courts as the foundational purpose.

Why This Matters Philosophically and Practically:

If copyright’s purpose were purely author compensation, fair use would be unjustifiable theft. But if copyright’s purpose is promoting culture and knowledge, fair use serving educational and transformative purposes directly serves copyright’s purpose.

The Balance: Copyright law intentionally balances author incentives (limited monopoly rights encouraging creation) with public benefits (fair use, limited duration, public domain, limitations on exclusive rights). Both are necessary to achieve the constitutional purpose.

For OER Creators: You need not feel guilty about fair use. Using fair use advances the very purpose for which copyright exists—promoting the progress of science and useful arts. Educational uses, in particular, directly serve this constitutional mission.

Root Causes: Why These Myths Persist

Understanding why misconceptions flourish is as important as correcting them:

Systemic Education Gaps

Copyright is barely mentioned in library school curriculum. Many educators receive no formal copyright education, leaving them vulnerable to misinformation. Those who seek information often find outdated or inaccurate online sources—”urban folklore” about copyright rather than reliable guidance.

Institutional Risk-Aversion

School administrators and lawyers, understandably cautious about liability, sometimes overstate copyright risks. They negotiate “fair use guidelines” with copyright holders that are more conservative than law requires. These negotiated guidelines, while intended to protect institutions, actually reinforce exaggerated fear.

Copyright Holder Messaging

Media corporations fighting file-sharing have equated all unlicensed use with “stealing” for decades. This messaging, understandable from a business perspective, has been so pervasive that educators often internalize it as legal truth. The reality—that fair use is a right, not theft—gets lost.

OER-Specific Guidance Problems

Documents introducing OER practices sometimes contain inaccurate copyright statements, creating false impressions that fair use is risky or unavailable in open education contexts. These guidance documents, created with good intentions, inadvertently amplify misconceptions.

What Fair Use Actually Is: A Summary

Based on extensive analysis of legal sources, codes of practice, and educational standards, fair use is:

A Right, Not an Exception: Fair use belongs to users and belongs to educators. It is not a risky exception you grudgingly use in emergencies; it is a standard right.
Flexible, Not Unreliable: Fair use is deliberately flexible to accommodate evolving creative practices and technologies. This flexibility is a feature, not a bug. Flexibility does not equal uncertainty.
Broad, Not Narrow: Fair use applies to numerous purposes: teaching, research, criticism, commentary, and transformative uses generally. It is not limited to a few privileged categories.
Privileged for Education: Educational use occupies a “highly privileged location” in fair use law, explicitly mentioned in the Copyright Act and consistently favored by courts.
Predictable for Professionals: When grounded in documented professional practices and the four statutory factors, fair use determinations are predictable and reliable. Over 170 years of precedent and multiple professional codes provide guidance.
Dependent on Purpose, Not Permission: Whether a use is fair depends on whether it is transformative and appropriate, not on whether you asked permission. You do not need to seek permission to make a fair use determination.
Independent of Attribution: Crediting sources is good practice and ethically important, but it has no legal bearing on fair use. Fair use and plagiarism are separate concerns.

The persistent myths about fair use in education do not reflect legal reality; they reflect gaps in education, overly cautious institutional messaging, and aggressive copyright holder campaigns. By understanding what fair use actually is—a broad-based right designed specifically to enable educational and transformative uses—educators can make confident decisions about incorporating copyrighted materials into open educational resources.

Fair use is not a risky exception to be feared and minimized. It is a right belonging to educators, codified in law over 170 years old, grounded in constitutional purposes, supported by extensive precedent, and formalized in professional codes like the Code of Best Practices in Fair Use for Open Educational Resources.

Educators creating OER should apply the four fair use factors thoughtfully, document reasoning, and proceed with confidence when analysis supports fair use claims. Institutional support—copyright education, transparent policies, and backing for faculty fair use determinations—amplifies this confidence. The result is pedagogically superior open educational resources that serve diverse learners while respecting both copyright law and educators’ rights.