Choosing between fair use and open licensing isn’t just a legal technicality—it’s a strategic decision that affects how broadly you can share educational content and how your students engage with materials. While both approaches allow educators to incorporate external content, they operate through fundamentally different frameworks with distinct benefits and limitations.
Understanding the Key Difference
Fair Use is a legal doctrine that permits limited use of copyrighted material without permission under specific circumstances. It requires case-by-case analysis of four factors: purpose, nature of the work, amount used, and market impact. Fair use is defensive—it protects you after the fact if challenged.
Open Licensing, primarily through Creative Commons (CC), represents a proactive approach where creators grant permissions upfront. These standardized licenses eliminate guesswork by clearly stating what users can and cannot do with the material.
When Fair Use Makes Sense
Fair use works best when you need brief excerpts for critical commentary, analysis, or teaching purposes. Consider fair use when:
- Transforming Content: You’re analyzing, critiquing, or commenting on copyrighted material in ways that add new meaning
- Limited Access: The original work isn’t available under open licenses and permissions would be difficult to obtain
- Scholarly Discussion: You’re quoting specific passages to support academic arguments or classroom analysis
However, fair use has significant limitations. Educational purpose alone doesn’t guarantee protection. The analysis must consider all four factors, and there’s no magic number of words or seconds that automatically qualify. Most importantly, fair use is jurisdictionally specific—primarily U.S.-based—and doesn’t provide certainty if challenged.
The Open License Advantage
Open licenses offer several compelling advantages over fair use:
Clarity and Certainty: CC licenses explicitly state permissions, eliminating the guesswork inherent in fair use analysis. When you see “CC BY,” you know exactly what’s allowed.
Global Compatibility: Unlike fair use, which varies by country, CC licenses work internationally, making them ideal for online courses with global reach.
Remix Freedom: Most CC licenses explicitly permit adaptation and remixing, encouraging educational innovation. You can translate materials, create derivative works, or combine resources from multiple sources.
Future-Proofing: Open licenses grant permissions for the life of the copyright, while fair use requires fresh analysis for each use.
Navigating the Six Creative Commons Licenses
Understanding CC license types helps you choose appropriate materials and apply suitable licenses to your own work:
Most Open to Least Open:
- CC BY: Maximum freedom—allows any use including commercial with attribution only
- CC BY-SA: Requires derivative works to use the same license (like Wikipedia)
- CC BY-NC: Prohibits commercial use but allows adaptations
- CC BY-NC-SA: Combines non-commercial restriction with share-alike requirement
- CC BY-ND: No adaptations allowed, but permits commercial redistribution
- CC BY-NC-ND: Most restrictive—no commercial use or adaptations
Note that only the first four qualify as true Open Educational Resources since the “No Derivatives” restriction limits educational adaptation.
Strategic Decision-Making
Choose Fair Use When:
- You need brief excerpts for critical analysis that wouldn’t qualify for any available open license
- The content is essential for your educational point and no open alternative exists
- You’re comfortable with legal uncertainty and have institutional support
Choose Open Licensed Content When:
- You want to modify, translate, or adapt materials for your specific context
- You plan to share your educational resources publicly or with other institutions
- You need certainty about permissions, especially for digital distribution
- You’re creating content that others might want to build upon
Practical Implementation Tips
For Using Materials:
- Start your search with open repositories like MIT OpenCourseWare, OER Commons, or Creative Commons search
- Check government sources—federal materials are typically public domain
- When relying on fair use, document your four-factor analysis thoroughly
For Creating Materials:
- Consider CC BY for maximum impact and usability
- Use CC BY-NC-SA if you want to maintain non-commercial education focus while encouraging adaptation
- Avoid “No Derivatives” licenses if you want your work to qualify as true OER
Attribution Best Practices:
- For CC materials, include: Title, Author, Source, License (the “TASL” format)
- For fair use, provide complete citations and usage statements
- Always err on the side of over-attribution rather than under-attribution
Building an Open-First Strategy
The most effective approach combines both frameworks strategically. Start with open-licensed content as your foundation, using fair use only when necessary for specific educational goals that can’t be met through open resources. This “open-first” strategy maximizes your legal certainty while maintaining access to the full range of educational materials.
Consider developing institutional policies that support both approaches—providing fair use analysis templates while also encouraging faculty to discover and create openly licensed educational resources. This dual approach empowers educators with flexible tools while building a more collaborative and legally sustainable educational ecosystem.
By understanding when each framework serves your needs best, you can make informed decisions that enhance student learning while respecting creators’ rights and building toward a more open educational future.