Open Educational Resources (OER) have opened the door for innovative teaching. Yet misuse of copyrighted content within OER can expose educators and institutions to legal challenges. Fair use offers a flexible framework for incorporating text, images, audio, and video—but only when applied thoughtfully. Below are the five most common fair use mistakes educators make and practical strategies to avoid them, ensuring your resources stay both engaging and legally sound.
1. Assuming “Educational Purpose” Equals Fair Use
Many instructors believe that any noncommercial, educational use automatically qualifies as fair use. In reality, the most important element in the fair use analysis is whether a use is transformative—that is, whether it adds new meaning, interpretation, or insight beyond simply displaying or reproducing the work.
Why This Trips People Up
Copying a chapter excerpt or embedding an image without commentary simply for “illustration” does not meet the transformative threshold. Courts look for clear evidence that you’ve repurposed the material for critical analysis, comparison, or discussion.
How to Stay Safe
- Embed every excerpt or image within a distinctive teaching context—annotate images with your own observations, pose critical questions around text passages, or juxtapose two sources to spark analytical discussion.
- When you need factual content, consider paraphrasing or summarizing in your own words rather than quoting verbatim. This reduces reliance on the original text and strengthens your transformative argument.
- Frame each borrowed element with introductory and closing commentary explaining its role in supporting student learning.
2. Using Excessive Material “Just to Be Safe”
The impulse to include longer passages or high-resolution images can backfire. The “amount and substantiality” factor weighs heavily against uses that exceed what’s necessary to achieve a pedagogical goal.
Why Educators Overdo It
Lengthy quotations or large file sizes may feel more authentic, but they draw the line between fair use and infringement. Even brief selections can violate fair use if they constitute the “heart” of the work.
How to Trim Excess
- Identify the precise teaching point—if you’re analyzing tone, a single paragraph may suffice. If you’re examining visual composition, crop the image to the specific frame you need.
- Keep excerpts to the minimum effective length. For audio or video, limit clips to no more than 10–15% of the total runtime.
- Provide a link or citation to the full work, encouraging students to consult the original source for broader context.
3. Overlooking Market Impact
It’s a common misconception that noncommercial educational use can never harm the market. If your OER directly replaces the need for the original work, the market impact factor can weigh against fair use.
Why This Factor Matters
Courts will assess whether your use substitutes for sales or licensing opportunities. Even if you’re not selling the material, students may choose your OER over purchasing the original.
How to Mitigate Market Harm
- Use brief excerpts that whet students’ interest rather than satisfy it entirely. This encourages them to obtain the full resource.
- Include purchase or library access information, such as ISBNs or DOI links, to guide students toward the original.
- Opt for works that are in the public domain, out of print, or published under open licenses to sidestep market interference altogether.
4. Neglecting Proper Attribution
Attribution alone doesn’t guarantee fair use, but failing to credit sources undermines your scholarly integrity and weakens any fair use defense.
Common Attribution Slip-Ups
Listing a URL at the end of a slide deck or including incomplete metadata can be insufficient. Educators sometimes omit author names or publication dates when in a hurry.
Attribution Best Practices
- Use a consistent citation style—APA, MLA, or Chicago—to record author, title, publication, date, and page or timestamp.
- For multimedia, include captions with the creator’s name, the work’s title, and a link or DOI.
- Pair each excerpt with a usage statement, such as, “Excerpt used under fair use for critical analysis (U.S. Copyright Act §107).” This transparency bolsters your good-faith argument.
5. Failing to Document Fair Use Analysis
Relying on instinct rather than documentation is a risky shortcut. In the event of a challenge, a well-maintained record of your decision-making can be invaluable.
Why Documentation Matters
A written fair use memo or checklist demonstrates that you conducted a thoughtful, factor-based analysis before incorporating copyrighted materials.
Building Your Documentation Routine
- Create a simple form capturing: work title, author, publication date, purpose of use, excerpt length, transformative rationale, market impact assessment, and alternative materials considered.
- Store documentation within your course archive or share it with your institution’s copyright office.
- Update templates to reflect specific scenarios—such as distance learning under the TEACH Act—and include any platform-specific compliance notes.
Putting It All Together
Fair use need not be a murky area for OER creators. By adopting transformative framing, using only necessary material, safeguarding market interests, attributing meticulously, and documenting each decision, educators can harness copyrighted content responsibly. This balanced approach protects you from legal risk while enriching your teaching materials.
Final Tips for a Fair-Use–Friendly OER
- Seek Open Alternatives First: Whenever possible, choose public domain or Creative Commons–licensed works.
- Leverage Institutional Resources: Consult your library’s copyright office or instructional design team for tailored guidance.
- Train and Share: Host workshops or brown-bag sessions to spread fair use literacy among colleagues.
By proactively addressing these five pitfalls, you’ll create OER that are not only pedagogically vibrant but also legally defensible—empowering students with high-quality resources while honoring creators’ rights.