Remixing and adapting open educational resources—combining materials from multiple sources to create new, contextualized learning experiences—represents one of OER’s most powerful capabilities. Fair use plays a critical role in this remixing ecosystem by enabling educators to incorporate copyrighted materials when openly licensed alternatives prove inadequate. The 5Rs framework (Retain, Reuse, Revise, Remix, Redistribute) defines what makes materials truly “open,” with Remix—the ability to combine and transform content—fundamental to achieving pedagogical flexibility. However, remixing presents complex challenges: license compatibility conflicts, unclear intellectual property status of online materials, and difficulty identifying copyright holders. By understanding fair use’s role in remix contexts, carefully navigating Creative Commons license compatibility issues, and employing documented transformative use analysis, educators can create high-quality, legally defensible remixed OER that serve diverse learners while respecting copyright principles. This report examines how fair use enables remix innovation while addressing practical challenges educators encounter.
Understanding OER Remix: The 5Rs Framework
Before examining fair use’s role in remixing, clarity on what constitutes truly “open” educational resources is essential. David Wiley’s foundational 5Rs framework defines OER not merely as “free” resources, but as materials supporting five specific rights:
The Five Rights Explained
1. Retain: The right to keep and possess the work. This foundational right means you can download, store, and access the resource. Without retention rights, the other four Rs become impossible—you cannot reuse, revise, remix, or redistribute what you cannot keep.
2. Reuse: The right to use content in a wide range of ways without modification. A student can use an open textbook for a course; an educator can reference it in planning. Reuse assumes unchanged, original content.
3. Revise: The right to adapt, adjust, modify, or alter the content itself. An educator can translate an OER into a local language, adapt examples to local context, or modify illustrations. Revision changes content but creates singular new work.
4. Remix: The right to combine the original or revised content with other content to create something new. Remix is distinct from revision in that it intentionally synthesizes materials from multiple sources into integrated whole.
5. Redistribute: The right to share copies of original content, revisions, or remixes with others. This right ensures openness persists through adaptation chain.
Remix as Pedagogical Transformation
Remix is particularly powerful from educational perspective because it enables educators to exercise pedagogical judgment about what combination of materials best serves their learners. Rather than adopting a single textbook or OER wholesale, educators can combine relevant materials from multiple sources into new resource reflecting their pedagogy.
The distinction between “collection” and “remix” clarifies what constitutes true remixing:
- Collection: Aggregating standalone works unchanged (e.g., linking to multiple resources, adding images without integration). Minimal transformation.
- Remix: Meaningfully integrating sources so that “you often cannot tell where one source ends and another begins.” New synthesis creates coherent whole.
This distinction matters legally: a collection of independently licensed works may maintain each source’s original license, but a true remix—where sources are meaningfully integrated—creates a derivative work requiring clear license determination.
Fair Use’s Critical Role in Remixing
While open licensing (particularly Creative Commons) provides the foundation for most OER remixing, fair use serves an essential supplementary function: enabling incorporation of copyrighted materials when no openly licensed equivalent adequately serves pedagogical objectives.
Fair Use as Remixing Foundation
The Code of Best Practices in Fair Use for Open Educational Resources explicitly addresses remixing with copyrighted content. Fair use enables educators to:
- Incorporate specific copyrighted materials necessary for authentic pedagogy
- Transform copyrighted works into new educational contexts
- Create remixed resources combining open-licensed foundation with pedagogically critical copyrighted inserts
Critical Condition: Fair use in remix contexts requires clear transformative purpose—the copyrighted material must be repurposed to serve a new function fundamentally different from its original purpose.
Examples of Transformative Fair Use in Remix
Example 1: Historical Photograph in Remixed History Textbook
A history educator creates remixed OER by combining:
- Openly licensed historical narrative from Wikipedia (CC-BY-SA)
- Open-licensed primary source documents from government archives (public domain)
- Professional news photograph from copyrighted archive (fair use)
The photograph—originally created as documentary journalism—is transformatively used to illustrate historical events within pedagogical narrative. The transformation from journalism to history teaching, combined with contextual framing and study questions, supports fair use determination.
Example 2: Documentary Clips in Remixed Science Video
A science educator creates video by combining:
- Openly licensed scientific animations (CC-BY)
- Public domain scientific diagrams (public domain)
- Brief documentary clips from commercial film (fair use)
Documentary clips originally created for entertainment are transformatively repurposed to illustrate climate science concepts. The remix synthesizes multiple sources into new educational narrative with clear pedagogical purpose.
Example 3: Music Excerpt in Remixed Music Education OER
A music educator creates curriculum by combining:
- Openly licensed musical notation (CC-BY)
- Public domain historical recordings (public domain)
- Brief contemporary music excerpt (fair use)
The musical excerpt—originally composed for commercial distribution—is transformatively used to illustrate contemporary compositional techniques. The brief duration and pedagogical analysis support fair use.
Fair Use Enables Pedagogical Flexibility
Critical insight: Fair use permits educators to avoid “pedagogically inferior alternatives” when remixing. Without fair use, remix would be constrained to openly licensed materials exclusively—a valuable but limited pool. Fair use enables educators to select materials that best serve specific learning objectives, even when openly licensed alternatives exist but prove inadequate.
The Complex Landscape: Challenges in Remixing OER
While remix represents OER’s promise, practical obstacles frequently complicate creation of remixed resources. Understanding these challenges—and strategies for addressing them—is essential for educators creating sustainable, legally defensible remixed OER.
Challenge 1: Creative Commons License Compatibility
The most fundamental barrier to remixing multiple OER sources is license compatibility: different Creative Commons licenses impose different restrictions on derivative works, and not all licenses can be legally combined.
No-Derivatives (ND) Incompatibility
Works licensed under CC-BY-ND or CC-BY-NC-ND cannot be remixed with any other works. The license explicitly states: “If you remix, transform, or build upon the material, you may not distribute the modified material.”
Implication: ND licenses represent hard barrier to remixing. Even if the ND-licensed material is exactly what you need, you cannot legally incorporate it into remix with other materials.
Example Incompatibility:
- Source 1: CC-BY-ND (no derivatives)
- Source 2: CC-BY (any use)
- Result: Cannot remix together; ND restriction prevents it
Educational Consequence: ND licenses fundamentally undermine OER openness. They prevent future educators from adapting and remixing for their contexts. The OER community strongly discourages ND licenses for educational materials precisely because they prevent downstream remix that could benefit future learners.
Share-Alike (SA) Incompatibility
Share-Alike licenses require that derivative works be licensed under the same license as the source. This creates conflicts when remixing SA works with works under different licenses.
Example Incompatibility:
- Source 1: CC-BY-SA (requires remix under CC-BY-SA)
- Source 2: CC-BY-NC-SA (requires remix under CC-BY-NC-SA)
- Problem: CC-BY-SA requires allowing commercial reuse; CC-BY-NC-SA prohibits it
- Result: Conflicting requirements make remix impossible
Why the Conflict: The Share-Alike requirement works like this: “If you remix my CC-BY-SA work, your remix must permit commercial use [same as my source].” But if you also incorporate CC-BY-NC-SA material (requiring non-commercial only), you cannot satisfy both requirements simultaneously.
Non-Commercial (NC) Restrictions
NC-licensed materials can only be remixed with other NC-licensed or non-commercial works. Remixing CC-BY-NC (non-commercial) with CC-BY (permitting commercial use) is problematic because the resulting open remix might be commercialized, violating the NC restriction on the source material.
Example:
- You remix CC-BY-NC material with CC-BY material
- If you license the remix CC-BY (fully open), commercial entities can use it
- This violates the NC source material’s restriction
Educational Consequence: NC licenses reduce remix potential. Educators must either find NC-licensed alternatives or accept that their remix must be locked to non-commercial use, limiting adaptability.
The License Compatibility Chart
Creative Commons provides a License Compatibility Chart making clear which licenses can legally be remixed:
| License | CC BY | CC BY-SA | CC BY-NC | CC BY-NC-SA | CC BY-ND | CC BY-NC-ND |
|---|---|---|---|---|---|---|
| CC BY | ✓ | ✓ | ✓ | ✓ | ✗ | ✗ |
| CC BY-SA | ✓ | ✓ | ✗ | ✗ | ✗ | ✗ |
| CC BY-NC | ✓ | ✗ | ✓ | ✓ | ✗ | ✗ |
| CC BY-NC-SA | ✓ | ✗ | ✓ | ✓ | ✗ | ✗ |
| CC BY-ND | ✗ | ✗ | ✗ | ✗ | ✗ | ✗ |
| CC BY-NC-ND | ✗ | ✗ | ✗ | ✗ | ✗ | ✗ |
Key Insight: CC-BY is the most compatible license, able to be remixed with all other CC licenses except ND. This is why the OER community emphasizes CC-BY as the gold standard for open educational resources.
Challenge 2: Unclear or Missing Licensing Information
A significant practical problem in remix contexts is that some online content labeled “open” or “free” provides no explicit license statement.
Common Scenarios:
- University department links worksheet with caption “Free to download” but specifies no license
- Subject expert posts “open-source” materials on personal website without explaining what permissions are granted
- Blog posts, images, or videos posted online with no license information
The Legal Problem: In absence of explicit license, copyright law presumes “all rights reserved”—the creator retains all copyright protections regardless of how freely they’ve shared the material. Posting freely online does not legally mean “free to reuse”.
Solution: When licensing is unclear, contact the creator and ask. Only direct conversation clarifies the creator’s intentions and permissions. Do not assume; ask.
Challenge 3: Copyright Holder Identification and Orphan Works
Remixing visual media (photographs, videos, illustrations) often involves difficulty identifying copyright holders.
The Problem:
- Photographs circulate widely online with credits stripped and metadata removed
- Image attribution databases are incomplete or inaccurate
- Works with multiple copyright holders (music video: composer, performer, lyricist) require licenses from each
- “Orphan works”—copyrighted materials with unknown or unreachable copyright holders—block clearance
Solutions:
- For Unknown Photographers/Original Creators:
- Check image EXIF metadata (embedded photographer/copyright information)
- Use reverse image search to trace origin
- Consult institutional copyright officer for guidance
- When creator truly unknown, use best available attribution and acknowledge uncertainty
- For Multiple Rights Holders (e.g., music):
- Identify all copyright holders (composer, performer, lyrics holder)
- May require multiple permission requests
- Fair use analysis may apply if use is transformative and amount minimal
- For Orphan Works:
- Document diligent search to find copyright holder
- Fair use may apply more readily when copyright holder cannot be located
- Consider linking rather than embedding to avoid responsibility for copyright violation
Navigating License Compatibility: Practical Remix Strategies
Given these challenges, educators creating remixed OER employ several practical strategies to navigate licensing complexity while maintaining legal defensibility.
Strategy 1: Prioritize CC-BY Licensed Materials as Foundation
The most effective remix strategy emphasizes CC-BY materials:
Approach:
- Build remix foundation using CC-BY-licensed materials
- These form primary structure and content
- Supplement with other open licenses where compatible
- Add fair use for copyrighted inserts when necessary
Why CC-BY:
- Explicitly permits all 5Rs with only attribution requirement
- Compatible with all other CC licenses (except ND)
- Works internationally; CC-BY 4.0 International seamlessly applies globally
- Enables downstream remixing by others
Practical Implementation: When selecting source materials, prioritize:
- CC-BY licensed materials first
- Public domain materials second
- Other compatible CC licenses (CC-BY-SA with CC-BY; CC-BY-NC with CC-BY-NC)
- Fair use for essential copyrighted materials
This hierarchy ensures maximum compatibility with minimum licensing constraints.
Strategy 2: Use the License Compatibility Chart Systematically
Before beginning remix, systematically evaluate which licenses can be combined:
Process:
- Identify license of each source material
- Locate each license on the compatibility chart
- Find intersection: ✓ = compatible; ✗ = incompatible
- If compatible, use the most restrictive license for resulting remix
- If incompatible, employ alternate strategies (see below)
Example Decision Process:
- Source A: CC-BY-SA
- Source B: CC-BY-NC
- Compatibility Check: CC-BY-SA row + CC-BY-NC column = ✗ (incompatible)
- Decision: Cannot directly remix; employ alternative strategy
Strategy 3: Carving Out Restrictive Material (Linking Strategy)
When incompatible materials cannot be directly remixed, one solution is to link to restrictive material rather than embedding it:
Approach:
- Embed freely remixable materials (CC-BY, public domain) into OER
- For restrictive materials (NC, SA, ND), provide hyperlink to original
- Write contextual summary explaining why material is relevant
- Learners access restrictive material through link; you avoid reproduction issue
Advantages:
- No copyright violation (no reproduction)
- Material remains accessible to learners
- Preserves creator autonomy over material
- Solves license compatibility problems
Disadvantages:
- Links may break over time
- Learners require internet access
- Requires extra navigation step
- Less stable for offline access or archival preservation
Strategy 4: Create Original Material Instead of Remixing
When license conflicts prove insurmountable, creating original material is valid strategy:
Approach:
- Don’t attempt to remix incompatible sources
- Create new educational content inspired by what you found
- License your new work CC-BY for maximum openness
Example:
Rather than remix the CC-BY-SA worksheet you found (which constrains your license to CC-BY-SA), create similar worksheet from scratch addressing same learning objectives. You can now license your original creation CC-BY, maximizing downstream remix potential.
When Appropriate:
- When licensing conflicts seem unresolvable
- When sources are minimally adaptable
- When you have expertise to create original content
- When time/resources permit original creation
Strategy 5: Request Dual Licensing (for Original Works)
For original copyrighted works you discover, request that copyright holders release under dual licenses:
Approach:
- Contact copyright holder explaining remix context
- Request dual licensing (e.g., both CC-BY and GFDL)
- Enables remix with works under either license
Limitation: Only works for original works; cannot request dual licensing of already-derivative works
Success Rate: Modest—creators are sometimes willing, especially if educational context appeals to them
Strategy 6: Fair Use for Transformed Integration
When open-licensed alternatives truly inadequate and copyright content essential, fair use enables incorporation if transformative purpose clear:
Requirements:
- Clear transformative purpose (content repurposed to serve new function)
- Appropriate amount (limited to what’s necessary; avoid entire high-value works)
- Non-substitutional (remix doesn’t compete with copyright holder’s market)
- Documented analysis (record fair use reasoning)
Documentation Tool: The Fair Use Evaluator Tool outputs time-stamped PDF supporting your determination.
When Appropriate:
- Specific copyrighted material serves essential pedagogical function
- No CC-licensed equivalent adequately addresses learning objective
- Fair use analysis supports incorporation
- Risk of challenge is low (transformative, limited amount, minimal market impact)
Fair Use and Transformative Remix Composition
Understanding Transformation in Remix
The key to fair use in remixing is transformative use: incorporating copyrighted material such that new work serves fundamentally different purpose than original.
Transformation vs. Derivative: Important distinction:
- Derivative: Using work in slightly different form but same basic purpose (lower-resolution image, cropped photo). Usually not transformative.
- Transformative: Using work for fundamentally new purpose (documentary photograph illustrating history; news clip teaching media literacy). Creates new meaning.
Examples of Transformative Fair Use in Remix
Example 1: Image Remix with Graphic Art and Text
Courts have affirmed transformative fair use when images remixed with “graphic art, additional text, and other images”—even entire images reduced in size and integrated into new composition. The remix creates new visual and conceptual meaning beyond original image’s purpose.
Example 2: Multiple Documentary Clips Synthesized into New Narrative
Combining brief clips from multiple documentaries into new video with original narration, study guides, and pedagoical context creates transformative synthesis. Original clips—created for entertainment—are repurposed to teach concepts. The new work adds educational value; clips individually insufficient to teach concepts effectively.
Example 3: Text Excerpts Annotated and Contextualized
Incorporating passages from copyrighted text into study guide with annotations, discussion questions, and contextualization transforms excerpts from standalone material into pedagogical tools. Transformation occurs through educational framing.
Fair Use Strength in Student Remix Work
The Code of Best Practices for Media Literacy Education explicitly supports student use of copyrighted materials in creative compositions when transformative:
Conditions:
- Use should not substitute for creative effort (students must do original composition work)
- Students should demonstrate how use is transformative (age-appropriate explanation)
- Wide distribution permitted if transformativeness established
Implication: Students remixing copyrighted materials to create new media compositions (videos, digital art, presentations) benefit from fair use protection when remix demonstrates genuine creative transformation.
Attribution in Remixed OER: Transparency and Accessibility
As remix becomes common OER practice, clear attribution becomes increasingly important—not just legally (compliance with Creative Commons licenses) but ethically and practically (helping downstream users understand and extend remix choices).
Required Attribution Elements
For each source in remixed OER, include:
- Title of original work
- Author/Creator statement
- Source (publication, URL, DOI)
- License (with link to full license deed)
Example:
“Map of the United States in 1776” by Library of Congress is licensed under CC0 (public domain).
Attribution Formats for Remixed Works
Different formats serve different contexts:
1. Inline Attribution:
- Attribution embedded in narrative text
- Superscript citation numbers connecting to footnotes/bibliography
- Works well when integrated with scholarly citations
- Example: “The territorial map shows westward expansion across the continent.”
- “Map of the United States in 1776” by Library of Congress, licensed CC0.
2. Footnote/Endnote:
- Attribution placed in notes section
- Keeps main text uncluttered
- Combines academic citation style with license requirements
3. Bibliography:
- Central list of all sources and respective licenses
- Works well for textbooks and longer OER
- Enables readers to see all sources at once
- Maintains readability of main text
4. Hybrid Approach:
- Front-matter or footnote notice: “Unless otherwise indicated, all materials licensed CC-BY…”
- Direct labels only for items where downstream users particularly benefit from understanding fair use rationale
- Practical balance between transparency and workload
Visual Media Attribution
Images:
- Attribution statement immediately above, below, or adjacent to image
- Include all required elements: title, creator, date, license, link
- For infographics: attribution in caption or image key
Video:
- Opening credits crediting major sources
- Embedded text during relevant segments identifying sources
- End credits with complete attribution list
- Description box (YouTube model): list all sources with links
Audio:
- Opening/closing credits identifying all music and sound
- Transcript with source attribution
- Linked document listing sources and licenses
Accessibility Principles for Attribution
Attribution should be accessible to all users:
- Avoid image-based attribution: Cannot be read by screen readers
- Use text-based attribution: Accessible by default
- Provide transcripts: For video/audio with attributed material
- Hyperlink appropriately: Allow keyboard navigation and screen reader access
- Consider contrast: Attribution text readable on backgrounds
Creative Attribution in Academic Context
Some educators develop hybrid citation systems combining academic citation with Creative Commons attribution:
Example:
“Socrates.” New World Encyclopedia, New World Encyclopedia, 8 Oct. 2015, accessed 16 Mar. 2017. Licensed under CC BY-SA 4.0.
This approach respects both academic citation traditions and CC attribution requirements while remaining readable and clear.
Fair Use Documentation in Remix Projects
When remixed OER incorporates copyrighted material under fair use, systematic documentation becomes essential:
Create Fair Use Checklist
For each copyrighted material in remix, document:
| Element | Detail |
|---|---|
| Source Material | Title, author, copyright holder, type, URL |
| Learning Objective | What learning goal does this material serve in remix? |
| Transformative Purpose | How is use transformative? Why transformative purpose necessary? |
| Amount Used | Exact duration, word count, percentage |
| Market Impact | Will this compete with original’s market? Why/why not? |
| Attribution | Full attribution statement as it appears in remix |
| Fair Use Determination | Clear / Likely / Uncertain / Probably Not |
| Reviewer | Who reviewed/approved this analysis? |
Store Documentation Centrally
- Maintain copies in shared folder with version control
- Share copies with institutional copyright office
- Use naming convention:
[RemixTitle]_[MaterialTitle]_FairUseAnalysis.pdf - Enable searching and reference
Use Fair Use Evaluator Tool
The Fair Use Evaluator Tool provides structured process for fair use analysis and outputs time-stamped PDF for documentation. This tool is particularly valuable for remixes involving multiple copyrighted materials.
International Remix and Fair Use Complexity
Global OER initiatives encounter particular challenges with fair use in remix contexts:
The Problem: Fair use is U.S.-specific doctrine. Other countries’ copyright systems (Canada’s fair dealing, EU’s copyright exceptions) are narrower and jurisdiction-specific.
Solution for International Remix:
- Prioritize CC-licensed materials: Use CC 4.0 International licenses; same permissions apply globally
- Document fair use carefully: If fair use relied upon, explain legal basis for each jurisdiction involved
- Adopt most restrictive framework: International remix must comply with copyright laws of all jurisdictions where it will be distributed
Best Practice: For international collaboration on remixed OER, build on CC-BY foundation (globally compatible) rather than relying heavily on fair use.
Building Remix Communities
Beyond technical licensing and fair use considerations, remixing creates opportunity for community-based continuous improvement of educational resources:
Example: Community-Authored Resources
Introductory Statistics textbook: Originally created by Barbara Illowsky and colleagues, became “community resource” as users contributed:
- Additional examples from different contexts
- Test banks and assessment materials
- Translations and adaptations
- Supplementary materials from contributors
This evolution demonstrates remix’s power: resources improve through distributed community effort rather than locked behind proprietary publisher control.
Sharing Adaptations Back
Best practice for remixing:
- Share remixed resource to subject-specific repository
- Notify original creators of adaptation (comment on original, provide URL)
- Document your adaptations so others can learn from approach
- Contribute improvements back to original source when appropriate
Fair Use Enabling Remix Innovation
Fair use plays essential role in enabling OER remixing—the practice of combining materials from multiple sources to create new, contextualized learning resources. While Creative Commons licensing provides the foundation for most remix through explicit permissions, fair use serves critical supplementary function: enabling incorporation of copyrighted materials when pedagogically necessary and no openly licensed alternative adequately addresses learning objectives.
Navigating remixing challenges—license compatibility conflicts, unclear intellectual property status of online materials, copyright holder identification—requires both understanding of legal frameworks and practical problem-solving strategies. By prioritizing CC-BY licensed materials, systematically checking license compatibility, employing linking or original creation when necessary, and carefully documenting fair use analysis when transformative purposes justify incorporation of copyrighted materials, educators can create remixed OER that achieve pedagogical excellence while respecting copyright principles.
Fair use does not enable wholesale copying or wholesale replacement of commercial textbooks. Rather, it enables educators to make pedagogically informed decisions about incorporating specific copyrighted materials when open-licensed alternatives prove inadequate—transforming those materials from their original purposes into new educational contexts that serve learners more effectively. This strategic, documented, transformative use of fair use in remixing represents optimal balance between educational access and copyright respect.