Open Educational Resources (OER) empower educators to create, adapt, and share learning materials freely. Yet integrating copyrighted content—such as texts, images, audio, or video—into OER requires careful navigation to respect intellectual property rights and minimize legal risk. By combining fair use analysis, open licensing strategies, and clear attribution practices, you can enrich your OER with high-quality resources while safeguarding ethical and legal compliance. This guide provides a step-by-step roadmap for responsibly incorporating copyrighted materials into your OER.
1. Begin with an Open-First Mindset
Before turning to copyrighted works, explore open alternatives. Public domain texts, government documents, and Creative Commons–licensed resources often meet educational needs without permission hurdles. Repositories such as OER Commons, MIT OpenCourseWare, and Wikimedia Commons offer extensive collections of openly licensed content. By starting with open materials, you reduce reliance on copyrighted sources and streamline your workflow.
2. Conduct a Four-Factor Fair Use Analysis
When no suitable open alternative exists, evaluate potential uses of copyrighted works under fair use. Section 107 of the U.S. Copyright Act outlines four factors:
- Purpose and Character
– Educational, noncommercial uses weigh in favor of fair use.
– Transformative uses—adding commentary, critique, or new context—strengthen your case. - Nature of the Work
– Factual or nonfiction works favor fair use more than highly creative works.
– Use caution with poems, songs, films, or novels. - Amount and Substantiality
– Limit usage to the smallest excerpt necessary (e.g., 1–2 paragraphs, a brief diagram crop, or a 10-second audio clip).
– Avoid copying the “heart” of the work. - Effect on the Market
– Ensure your use does not serve as a market substitute for the original.
– Encourage learners to access or purchase the full work through links or library information.
Document your analysis in a simple checklist capturing each factor’s evaluation and your rationale. Institutional templates or memo forms can provide an audit trail and demonstrate good faith if questions arise.
3. Seek Permission When Necessary
For uses that exceed minimal excerpts or involve high-value assets (e.g., full-length videos, entire chapters, high-resolution images), securing permission from rights holders is the safest approach. Most publishers and authors offer educational licensing at reduced fees or may grant permission at no cost. When requesting permission:
- Identify the specific content, purpose, and intended distribution.
- Use clear, concise language and provide context about your OER’s open, noncommercial nature.
- Retain written correspondence to document granted rights.
4. Implement Clear, Consistent Attribution
Whether relying on fair use or open licenses, proper attribution is essential for academic integrity and legal clarity. Use the TASL format—Title, Author, Source, License—to credit all borrowed materials:
- Title: Full title of the work or asset.
- Author: Creator’s name or organization.
- Source: Publication name, URL, DOI, or repository.
- License: For open works, include the specific license (e.g., CC BY 4.0). For fair use excerpts, note “Used under fair use (U.S. Copyright Act §107).”
Place attributions prominently near the material—immediately below images, at the end of text excerpts, or in a consolidated reference section. Consistency in style (APA, MLA, Chicago) enhances readability and upholds scholarly standards.
5. Transform Rather Than Copy
Maximize the transformative value of copyrighted material to bolster fair use justification:
- Text: Paraphrase complex passages, then quote only brief excerpts for critical analysis.
- Images and Diagrams: Recreate or redraw visuals based on public data; annotate or crop only what’s necessary.
- Audio/Video: Extract short clips that illustrate a specific point; accompany with discussion prompts or analytical commentary.
Transformative uses not only strengthen legal defensibility but also deepen student engagement, prompting critical thinking rather than passive consumption.
6. Leverage the TEACH Act for Online Delivery
For digital or distance-learning contexts, the 2002 TEACH Act provides additional permissions for performance and display of copyrighted works within accredited online courses. To qualify:
- Use materials as part of instructor-generated lessons, not external content repositories.
- Restrict access to enrolled students via secure, password-protected platforms.
- Ensure technology prevents unauthorized retention and broader distribution.
Coordinate with instructional technology staff to verify platform compliance and develop clear usage protocols.
7. Offer Alternatives and Links
Even when you include fair use excerpts, provide learners with pathways to the full work:
- Embed hyperlinks to publisher sites, library catalogs, or downloadable PDFs.
- List ISBNs, DOIs, or call numbers in a “Further Reading” section.
- Suggest free or low-cost editions when available (e.g., student-accessible e-books).
This practice respects market considerations, encourages deeper exploration, and positions your OER as a springboard rather than a replacement.
8. Maintain Records and Review Periodically
Keep a centralized log of all copyrighted materials used in your OER:
- Store fair use checklists, permission emails, and attribution details in a shared folder.
- Review content annually to remove obsolete links, reassess fair use analyses, and update permissions as licenses evolve.
- Share records with your institution’s copyright office for transparency and collaborative support.
Regular audits ensure your OER remains legally compliant and pedagogically current.
9. Educate Your Audience
Enhance transparency and legal literacy by including a brief “Copyright and Licensing” section within your OER. Explain:
- Which materials are openly licensed, including links to license deeds.
- Which excerpts are used under fair use, summarizing the rationale.
- How learners can reuse, remix, or share the OER, outlining any license restrictions.
This not only models best practices but also empowers learners and colleague-creators to respect intellectual property in their own work.
10. Foster an Open-Learning Culture
Beyond individual resources, building institutional and community norms around responsible copyright use amplifies impact:
- Collaborate with librarians and legal counsel to develop workshops on fair use and open licensing.
- Create shared templates, checklists, and attribution style guides accessible to all faculty.
- Recognize and showcase exemplary OER projects that balance creativity, openness, and legal compliance.
By embedding these practices into your institution’s culture, you help cultivate a sustainable ecosystem where high-quality learning materials thrive and respect for creators’ rights remains paramount.
Incorporating copyrighted materials into OER need not be daunting. By adopting an open-first mindset, rigorously applying fair use criteria, securing permissions when necessary, and committing to clear attribution and documentation, you can enrich your educational offerings while upholding ethical and legal standards. Thoughtful, proactive practices empower educators to create dynamic, legally sound OER that serve learners today—and inspire future generations of open-education advocates.