Best Practices in Fair Use for Open Educational Resources (OER)

Open Educational Resources (OER) have revolutionized the educational landscape by providing free and accessible materials to educators and learners worldwide. These resources, which range from textbooks and lecture notes to multimedia and interactive tools, are designed to enhance teaching and learning while reducing costs. However, the use and adaptation of these materials often involve navigating complex copyright laws and the principle of fair use. This article explores the best practices in fair use for OER, empowering educators, creators, and institutions to leverage these resources responsibly and effectively.

Understanding OER and Fair Use

OER are educational materials that are openly licensed, allowing users to freely use, adapt, and share them. They are governed by licenses such as Creative Commons, which specify the terms of use. While many OER are openly licensed, they may incorporate copyrighted materials that require careful consideration under fair use.

Fair use is a legal doctrine that permits limited use of copyrighted materials without seeking permission from the copyright owner. In the United States, fair use is defined under Section 107 of the Copyright Act and is determined by four factors:

  1. Purpose and character of the use: Whether the use is for a nonprofit educational purpose and whether it is transformative (adds new meaning or value).
  2. Nature of the copyrighted work: Whether the work is factual or creative, with factual works being more amenable to fair use.
  3. Amount and substantiality: The quantity of the work used and whether the “heart” of the work is taken.
  4. Effect on the market: Whether the use adversely impacts the market or potential market for the original work.

By adhering to these principles, educators and creators can ensure their use of copyrighted materials in OER aligns with legal and ethical standards.

Best Practices in Fair Use for OER

1. Prioritize Openly Licensed Content

Whenever possible, select materials that are openly licensed under Creative Commons or similar frameworks. Open licenses provide explicit permissions for use, adaptation, and sharing, minimizing the need to rely on fair use. Platforms such as OER Commons, MERLOT, and OpenStax offer extensive repositories of openly licensed materials.

2. Understand Licensing Terms

Carefully review the licensing terms of any OER you use. Creative Commons licenses, for example, may include variations such as:

  • Attribution (BY): Credit the original creator.
  • Non-Commercial (NC): Use only for non-commercial purposes.
  • No Derivatives (ND): Use the work as-is without modifications.
  • Share-Alike (SA): Share adaptations under the same license.

Understanding these terms ensures compliance and respects the original creator’s intent.

3. Evaluate the Transformative Nature of Your Use

Transformative use is a cornerstone of fair use. This means adding new value, meaning, or purpose to the original material. For example:

  • Using a copyrighted image to illustrate a historical concept in an educational video.
  • Remixing music to create a unique instructional soundtrack.
  • Annotating and adapting a text to align with specific curricular goals.

When using copyrighted materials, document how your use transforms the original work to strengthen your fair use claim.

4. Limit the Amount Used

Use only the portion of a copyrighted work necessary to achieve your educational purpose. For example:

  • Instead of using an entire book chapter, use a brief excerpt that directly supports your lesson.
  • Use a short clip from a movie rather than the entire film.

By limiting the amount used, you demonstrate a good-faith effort to respect the rights of the copyright holder.

5. Conduct a Fair Use Analysis

Perform a fair use analysis for each copyrighted material you intend to include in your OER. Use the four factors as a guide, and document your reasoning. Many institutions provide fair use checklists to help educators systematically evaluate their use of materials.

6. Attribute Sources Appropriately

Even when using materials under fair use, provide proper attribution to the original creators. A standard attribution includes:

  • The creator’s name.
  • The title of the work.
  • The source or URL.
  • The license under which it is shared (if applicable).

Attribution fosters transparency, accountability, and academic integrity.

7. Incorporate Public Domain Materials

Public domain works are not protected by copyright and can be freely used without restrictions. These include:

  • Works published before 1924 in the U.S. (as of 2024).
  • Government publications (in many jurisdictions).
  • Works explicitly dedicated to the public domain by their creators.

Using public domain materials eliminates the need for fair use considerations and simplifies compliance.

8. Leverage Institutional Support

Many educational institutions have copyright experts or legal teams who can provide guidance on fair use and OER. Seek their advice when in doubt, and consider collaborating with librarians, instructional designers, and other professionals to ensure compliance.

9. Develop OER Policies and Training

Institutions should establish clear policies and provide training on fair use and OER. This includes:

  • Creating guidelines for incorporating copyrighted materials into OER.
  • Offering workshops on copyright, fair use, and open licensing.
  • Developing resources such as fair use checklists and templates.

Educating faculty and staff empowers them to create and use OER responsibly.

10. Advocate for Open Access

Promote the creation and adoption of openly licensed materials within your institution and community. By contributing to the open access movement, you reduce reliance on copyrighted works and expand the availability of OER for all.

Common Challenges and Solutions

Despite best practices, fair use for OER presents challenges that require careful navigation. Here are some common issues and strategies to address them:

Challenge 1: Ambiguity in Fair Use Determinations

Fair use is inherently subjective, and interpretations can vary.

Solution: Conduct a thorough analysis and document your reasoning. When in doubt, seek legal advice or opt for openly licensed or public domain materials.

Challenge 2: Incorporating Multimedia

Multimedia materials, such as videos and music, often involve multiple layers of copyright.

Solution: Use resources from platforms like Pixabay, Pexels, or Wikimedia Commons that offer openly licensed multimedia. When using copyrighted materials, limit the amount and ensure the use is transformative.

Challenge 3: International Variability

Fair use laws differ across countries, creating complexities for global OER initiatives.

Solution: Familiarize yourself with the copyright laws of your jurisdiction and consider using materials with internationally recognized licenses like Creative Commons.

Case Studies in Fair Use for OER

Case Study 1: Transformative Use in a History Course

An educator creating an OER history textbook includes a copyrighted photograph from the 1960s Civil Rights Movement. The photograph is accompanied by a detailed analysis, linking it to the broader historical context. This use is deemed fair because it:

  • Serves an educational purpose.
  • Is transformative by adding new meaning.
  • Uses only a small portion of the photographer’s portfolio.
  • Does not negatively impact the market for the original photograph.

Case Study 2: Remixing Educational Videos

A science teacher creates an OER video by combining short clips from various documentaries to explain climate change. The video is transformative, providing a new educational narrative. The teacher includes proper attributions and limits the clips to short, relevant excerpts, strengthening the fair use claim.

Case Study 3: Adapting Text for Accessibility

An instructor adapts an openly licensed textbook into an audiobook for visually impaired students. The adaptation is transformative, making the content accessible to a new audience. The instructor ensures compliance with the original license terms and credits the creators, exemplifying best practices.

Fair use is a powerful tool that enables educators and creators to incorporate copyrighted materials into OER responsibly. By understanding the principles of fair use, prioritizing openly licensed content, and adhering to best practices, institutions can foster a culture of compliance and innovation. As the OER movement continues to grow, embracing fair use not only enhances educational opportunities but also supports the broader goal of equitable access to knowledge.

By leveraging these best practices, educators can navigate the complexities of copyright with confidence, ensuring that OER remain a transformative force in education for years to come.