The Code of Best Practices in Fair Use for Open Educational Resources is explicitly a U.S. document reflecting U.S. copyright law and cannot be directly applied outside the United States. The fundamental reason: there is no global fair use doctrine. While the United States employs flexible, open-ended fair use protecting educational uses broadly, most other countries operate under “fair dealing” frameworks that enumerate specific permitted purposes—and crucially, do not include a general educational exception. A use legally protected as fair use in the United States may constitute copyright infringement in Canada, Australia, the UK, or the EU. However, the Code’s framework and principles have inspired adaptations in other jurisdictions (notably Canada’s Code of Best Practices in Fair Dealing for OER), and international OER collaborations address the copyright complexity through explicit Creative Commons licensing rather than reliance on varying copyright exceptions. This report examines the international copyright landscape, how different countries approach copyright exceptions, and strategies for international OER development.
The Fundamental Divide: No Global Fair Use Doctrine
The Critical Reality
“There is no global Fair Use doctrine”.
While the United States provides educators with flexible fair use protections for educational uses of copyrighted material, “the vast majority of other countries operate under fundamentally different legal frameworks with significantly more restrictive copyright exceptions”. This divergence creates “substantial complications for international OER collaborations, requiring participants to navigate multiple conflicting legal systems and often adopt the most restrictive approach to ensure compliance everywhere”.
International Treaties Harmonize Protection, Not Exceptions
Rather than harmonizing copyright exceptions globally, international treaties work the opposite direction:
The Berne Convention (1886) and subsequent WIPO Treaties establish minimum copyright protections that all signatory nations must provide. Critically, these treaties permit countries to create their own exceptions.
The Result: “International treaties harmonize copyright protection upward—requiring all countries to protect authors’ interests—but do NOT harmonize exceptions and limitations downward”.
Bottom Line: “As of 2025, no international agreement specifically harmonizing educational copyright exceptions exists, and progress toward such harmonization remains limited”.
Two Competing Systems: Fair Use vs. Fair Dealing
U.S. Fair Use: Flexible Framework
Defining Feature: Fair use provides a flexible, open-ended exception to copyright based on four factors applied case-by-case:
- Purpose and character of use (is it transformative? educational?)
- Nature of the copyrighted work (creative or factual?)
- Amount and substantiality taken (how much was used?)
- Effect on market for original work (does it compete with original?)
For Educators: The U.S. Copyright Act explicitly permits use for “teaching” and “educational purposes”. This broad language, combined with flexible four-factor analysis, gives educators considerable freedom to incorporate copyrighted materials when transformative educational purpose is clear.
Transformation Emphasis: Courts ask whether the new work “adds something meaningful to the original” or “adds new expression”. Using a film clip to teach about cinematic technique = transformative (new purpose, new meaning). Showing the same clip for entertainment = not transformative.
Fair Dealing: Enumerated Purposes, Narrow Scope
Defining Feature: Fair dealing specifies particular purposes for which limited use is permitted. If a use doesn’t fall within enumerated purposes, it cannot be fair dealing.
Typical Fair Dealing Purposes (vary by country):
- Research and private study
- Criticism or review
- News reporting
- Parody or satire (added in some countries)
- Professional legal advice
Critical Gap: No General Educational Exception: “Fair dealing does NOT provide a general educational exception applicable to all educational contexts. Teachers and educators cannot automatically rely on fair dealing to justify any educational use; rather, they must demonstrate that use falls within one of the specified purposes (e.g., criticism or news reporting)”.
Important Implication: A classroom use of copyrighted material that qualifies as fair use in the United States—because it’s educational and transformative—may NOT qualify under fair dealing in Canada, Australia, or the UK simply because no enumerated fair dealing purpose applies.
Key Differences Summary
| Dimension | U.S. Fair Use | Fair Dealing (Common Law Countries) |
|---|---|---|
| Framework | Flexible, open-ended factors | Enumerated permitted purposes |
| Educational use | Broad protection for teaching | Narrower, purpose-specific exceptions |
| Analysis | Case-by-case determination | Requires fitting into prescribed category |
| Flexibility | High; permits novel applications | Low; limited to defined purposes |
| Judgment | Requires contextual analysis | Clearer rules but less flexibility |
Countries Using Fair Dealing (Common Law Jurisdictions)
Approximately 40 countries representing over one-third of world’s population have fair use or fair dealing provisions. Common law countries (former British colonies and others) predominantly use fair dealing:
- Canada
- United Kingdom
- Australia
- Singapore
- India (with expanding judicial interpretation)
- Ireland
Each country implements fair dealing differently within its legal system, making copyright compliance complex for international OER.
Specific Jurisdictions and Their Approaches
Canada: Fair Dealing with Expanding Educational Scope
Framework: Canada uses “fair dealing” terminology, but the scope has expanded significantly.
Evolution:
- 2012 Copyright Modernization Act explicitly expanded fair dealing to include “education, parody, and satire”
- Canadian courts increasingly interpret fair dealing broadly
- “Canadian fair dealing exception has broadened… now similar in effect to U.S. fair use, even though the frameworks are different”
Educational Application:
Fair dealing now covers non-commercial educational uses more expansively than traditional common law fair dealing, making Canadian copyright law substantially more flexible for educators.
Canadian Adaptation: Code of Best Practices in Fair Dealing for OER
Rather than directly applying the U.S. Code, Canadian educators have their own adapted Code:
The Canadian Code:
The Canadian Association of Research Libraries developed the “Code of Best Practices in Fair Dealing for Open Educational Resources” specifically for Canadian context.
Purpose:
“Explores the legal and practical application of fair dealing in the context of Open Educational Resource (OER) creation in Canada”.
Development:
- Adapted from U.S. Code of Best Practices
- “Benefited from robust consultation process undertaken by U.S. Code authors, their framework and practical examples”
- Included Canadian legal review
- Draws extensively on legal analysis by Canadian scholar Dr. Carys Craig
Focus:
“The Code details the relevant Canadian legislative and legal context and supplies relevant practical examples”. Rather than importing U.S. principles directly, it translates the fair use framework into fair dealing analysis grounded in Canadian law.
Goals:
“Intended to empower Canadian creators and adopters of OER to make use of fair dealing, while also fostering institutional and legal support for doing so”.
Benefit:
“Adoption by educational institutions will benefit Canadian educators and students by ensuring educational resources are high quality and accessible while educating them on Canadian copyright and fortifying the balance of user and creator rights”.
Australia: Narrow Fair Dealing, No General Teaching Exception
Framework: Australia uses fair dealing with a closed list of specific permitted purposes.
Fair Dealing Purposes (Australia):
- Research
- Private study
- Criticism
- Review
- News reporting
- Parody (more recent addition)
Critical Limitation: “Australian fair dealing traditionally did NOT recognize a general ‘teaching’ exception comparable to U.S. fair use”.
How Fair Dealing Works:
Fair dealing asks two sequential questions:
- Is this use for one of the listed purposes?
- If yes, is this use fair, considering fairness factors?
“If a given use does not fall into one of the categories, then it cannot be found to be fair. Therefore, fair dealing is a narrower defence to infringement than fair use”.
Implications for Educators: An educator in Australia cannot argue “I’m using this copyrighted material for teaching” and expect fair dealing protection. The use must fit one of the enumerated categories (e.g., criticism, review) to qualify.
Reform Efforts: Eight Australian government inquiries from 1998-2017 recommended adopting a more flexible “fair use” system. However, as of 2025, Australia still operates under fair dealing.
United Kingdom: Fair Dealing with Teaching Limitations
Framework: UK fair dealing includes “teaching” purpose but with constraints.
Teaching Exception (UK):
- Copying works for teaching is permitted
- “As long as use is solely to illustrate point”
- “Not done for commercial purposes”
- “Accompanied by sufficient acknowledgement”
- “Requirement of fair dealing” (not automatic)
Real-World Application:
- Displaying a few lines of poetry on interactive whiteboard = permitted
- Using entire film without transformative educational analysis = not permitted
- “Uses which would undermine sales of teaching materials are not fair dealing”
Critical Note: “The terms ‘fair use’ and ‘fair dealing’ are not interchangeable – an exception that applies in the US may be regarded as an infringement in the UK”.
India: Fair Dealing with Judicial Flexibility
Framework: India retains fair dealing terminology but courts interpret expansively.
Expansion:
- 2012 Copyright Amendment expanded fair dealing
- “Expanded fair dealing exception goes very far down the road to fair use doctrine”
- Judicial interpretation increasingly flexible
Pragmatic Approach:
“In India, courts apply basic common sense to determine what constitutes Fair Dealing on case-by-case basis. Where economic impact on copyright owner is not significant, use may constitute fair dealing”.
Fair Dealing Factors (India):
- Purpose of use
- Nature of work
- Amount of work used
- Effect of use on original
This four-factor approach resembles U.S. fair use more than traditional fair dealing, showing convergence toward flexibility.
European Union: Harmonized Digital Teaching Exception
The EU has taken unique approach: harmonizing copyright exceptions across member states through EU Directives.
Digital Teaching Exception (CDSM Directive, 2019)
What It Permits:
- Use of copyrighted materials in digital and distance teaching
- Cross-border teaching activities
- Non-commercial educational purposes
- Incorporation into secure digital learning environments
Scope: “Covers digital uses in general, not only such uses with cross-border dimension”.
Requirements:
- Educational establishment conducting the teaching
- Non-commercial purpose
- Secure digital learning environment (password-protected, access-limited)
- Attribution of source and author
Member State Discretion
Even within EU harmonization, member states retain options:
- Fair Compensation Mechanism: May require fair compensation to copyright holders
- Licensing Carve-Out: Can exclude uses where suitable licenses are “easily available on market”
- Exclusions: Can exclude works “exclusively suitable, intended and labeled for teaching”
Example Variation: Italy has unique “grand citation” exception enabling more extensive borrowing in educational contexts; Germany excludes works specially created for teaching.
Achievement and Limitations
Described as “epochal transition” in EU copyright harmonization. The “overarching rationale is to provide educational establishments with legal certainty when using protected works in digital teaching activities”.
Yet despite harmonization efforts, significant variability persists across EU member states in implementation.
The Problem in Practice: Same OER, Different Legal Status
Case Study: Media Literacy Video
Consider a practical scenario illustrating the international problem:
The Material: Professor creates educational video analyzing gender representation in advertising. Incorporates 30-second clips from three commercial advertisements. Discusses advertising techniques, gender stereotypes, and media literacy concepts.
In the United States:
- Fair use applies
- Transformative educational purpose (analyzing rather than displaying for entertainment)
- Limited amount (brief clips from commercial films)
- No market harm (clips don’t substitute for ads or film viewing)
- Conclusion: LEGAL
In Canada:
- Canadian fair dealing likely applies
- Educational use expanding under 2012 amendments
- Similar fair use analysis
- Conclusion: LIKELY LEGAL
In Australia:
- Does use fit enumerated fair dealing purpose?
- Teaching? Not enumerated as fair dealing purpose in Australia
- Criticism? Could potentially fit if analyzing critically
- Review? Possibly if reviewing advertising practices
- Conclusion: QUESTIONABLE; depends on framing
In the EU:
- If distributed through educational institution in secure digital environment
- Non-commercial educational use
- Proper attribution provided
- If licensing available and affordable, may not qualify
- Conclusion: LIKELY LEGAL (if proper institutional framework)
The Bottom Line:
“A use legally protected as fair use in the U.S. may constitute copyright infringement when the same resource is distributed internationally.”
This is why international OER collaborations cannot simply rely on U.S. fair use doctrine.
Strategies for International OER: Avoiding the Copyright Minefield
Given the absence of harmonized copyright exceptions, international OER projects employ strategic approaches to ensure compliance across jurisdictions:
Strategy 1: Prioritize Clear Licensing Over Fair Use Reliance
Principle:
“Rather than relying on fair use or fair dealing, international OER projects should secure explicit licensing of all copyrighted third-party content incorporated in materials.”
Implementation:
- Work with material already available under open licenses (CC-licensed, public domain, government works)
- Create original material rather than incorporating copyrighted material relying on fair use
- License copyrighted content explicitly when necessary
Benefit:
“Eliminates copyright uncertainty by ensuring explicit permission rather than relying on legal doctrines that vary internationally.”
Why This Works: Explicit licensing provides identical rights across all jurisdictions, regardless of each country’s copyright law.
Strategy 2: Use Creative Commons 4.0 International License
Why CC-BY 4.0 International:
The answer to international copyright complexity is remarkably elegant. Rather than determining which country’s copyright law applies to each component, use CC BY 4.0 International unported license.
How It Works:
- CC-BY 4.0 International provides “standardized global permissions while respecting national copyright frameworks”
- “Same CC-BY 4.0 license has identical effect globally”
- “Different from having separate licenses for each jurisdiction”
- “Avoids complexity of determining which country’s copyright law applies to each component”
Quote:
“Most international OER use CC BY 4.0 (international unported version) precisely because it provides standardized global permissions while respecting national copyright frameworks. This approach avoids the complexity of determining which country’s copyright law applies while ensuring materials can be freely shared across borders.”
Practical Implication: When faculty create OER for international use, licensing all new materials CC-BY 4.0 International ensures legal clarity globally.
Strategy 3: Jurisdiction-Neutral Approach
Principle:
International OER should “deliberately avoid reliance on any particular country’s copyright law by using clear CC licensing and avoiding materials requiring jurisdiction-specific copyright exceptions.”
Implementation:
- Use only CC-licensed and public domain materials
- Create original material
- Avoid materials requiring fair use/fair dealing analysis
- Document copyright clearing decisions thoroughly
- Consult legal advisors familiar with collaborating jurisdictions
For Large Initiatives: “Organizations developing OER collaboratively across borders should implement systematic strategies addressing copyright complexity”.
Practical Guidance for International OER Development
Before Starting International Collaboration
Stakeholder Consultation Strategy:
- Consult legal advisors familiar with copyright law in collaborating jurisdictions
- Engage with stakeholders in each jurisdiction about practical compliance requirements
- Document copyright clearing decisions thoroughly, explaining why specific materials were or were not included
Benefit:
“This transparency helps users understand the legal status of materials and enables informed reuse decisions.”
Jurisdiction Selection Decisions
Consider these questions:
- Where will OER be developed? (Which country’s copyright law applies to the creation process?)
- Where will materials be hosted? (Which country’s law applies to distribution?)
- What is target audience? (Purely domestic vs. international?)
In Practice:
“Most international OER are developed and hosted to be jurisdiction-neutral, deliberately avoiding reliance on any particular country’s copyright law by using clear CC licensing and avoiding materials requiring jurisdiction-specific copyright exceptions.”
Rights Clearance Strategy
When international materials needed:
- Secure explicit licensing of all copyrighted third-party content
- Work with material already under open licenses
- Create original material rather than importing copyrighted inserts
Emerging Trends: Expansion of Fair Use Globally
While fair dealing remains the historical default in Commonwealth countries, a countertrend is accelerating:
Countries Adopting Fair Use (Beyond U.S.)
“Fair use, if originated in U.S., is now spreading throughout international community with increasing speed”.
Countries Adopting Fair Use:
- Israel (1993)
- South Korea (2006)
- Philippines
- Taiwan
- Sri Lanka
- Kenya
- Singapore
- Malaysia
- Liberia
- Ecuador (first Latin American country to adopt)
This trend suggests global recognition that fair dealing’s narrow enumeration is inadequate for modern knowledge-sharing environments.
South Africa: Shifting from Fair Dealing to Fair Use
South Africa is “undergoing shift from fair dealing to more flexible fair use system with Copyright Amendment Bill”.
Why the Shift:
- Fair dealing “provides fewer exceptions to unauthorized use of content”
- Modern content-sharing practices demand greater flexibility
- Aligning with global trend toward flexibility
Conclusion: The Code as U.S. Framework with Global Implications
Direct Application: Limited to U.S.
The Code of Best Practices in Fair Use for Open Educational Resources is explicitly a U.S. document reflecting U.S. copyright law. It cannot be directly applied outside the United States because:
- Fair use is U.S.-specific; most countries use fair dealing
- Fair dealing provides no general educational exception, making many fair uses non-compliant internationally
- Different jurisdictions enumerate different purposes; what’s fair dealing in one country may not be in another
Inspired Adaptation: Code Model Translates
However, the Code’s framework and principles inspire adaptation to other jurisdictions:
- Canada developed its own Code of Best Practices in Fair Dealing for OER
- The framework of “transformative use,” “limited amount,” “market impact” translates across legal systems
- Even in fair dealing jurisdictions, courts increasingly consider similar fairness factors
International Strategy: License Over Exceptions
For international OER collaborations, the answer is not debating whether fair use applies globally, but rather using explicit Creative Commons licensing to avoid the question entirely.
“Rather than relying on copyright exceptions that vary dramatically across jurisdictions, successful international OER projects employ explicit licensing—particularly Creative Commons international licenses—as the foundation for legal compliance. By combining clear licensing with deliberate content sourcing decisions, thorough copyright clearing, and transparency about legal frameworks, international OER collaborations can navigate the complex cross-border copyright landscape while contributing to the global commons of open educational resources”.
Key Takeaway for Global Educators
When creating or adapting OER for international use:
- Understand your jurisdiction’s framework (fair use vs. fair dealing?)
- Prioritize CC-licensed and public domain materials internationally
- Use Creative Commons 4.0 International for all new OER
- Avoid relying on fair use/fair dealing for international distribution
- Consult legal advisors in all jurisdictions where OER will be used
- Document decisions transparently
The global future of OER depends not on harmonizing fair use across countries—an unlikely outcome given treaty structures—but on expanding use of open licensing that transcends national copyright boundaries.