A structured fair use checklist empowers educators and instructional designers to make consistent, defensible decisions when incorporating copyrighted content into OER. By documenting each of the four statutory factors alongside pedagogical context and accessibility considerations, you build both legal resilience and transparent workflows.
Why Use a Fair Use Checklist?
A checklist transforms fair use from vague intuition into a repeatable process, ensuring that every use of copyrighted material is:
- Purposeful: Explicitly tied to clear learning objectives.
- Limited: Focused on the minimum necessary excerpt or clip.
- Transformative: Adds new meaning, analysis, or context.
- Documented: Records rationale and anticipated market impact.
This proactive documentation supports institutional audits, peer reviews, and lends credibility in the event of a rights challenge.
Core Components of a Fair Use Checklist
- Project and Instructor Information
- Course or OER Title
- Instructor/Designer Name
- Date of Analysis
- Source Material Details
- Title, Author, Publication Date
- Type of Work (text, image, video, audio)
- URL or DOI (if applicable)
- Educational Purpose and Transformation
- Description of how the material supports a specific learning objective.
- Explanation of the transformative element (e.g., critical commentary, data revisualization, remix).
- Amount and Substantiality
- Exact portion used (e.g., “Paragraph 3 of Chapter 2,” “10-second audio clip at 1:15–1:25”).
- Justification for why this excerpt is the minimum needed.
- Market Impact Assessment
- Analysis of whether the excerpt could substitute for the original.
- Mitigation strategies (e.g., linking to full work, providing purchase information).
- Accessibility Considerations
- Alternative text for images.
- Transcripts or captions for audio/video.
- File format notes for screen-reader compatibility.
- Attribution and Licensing Statement
- TASL credit (Title, Author, Source, License or “Used under fair use §107”).
- Location of attribution (e.g., caption, footnote, reference list).
- Permission Status (if applicable)
- Record of any permissions sought or granted, including correspondence dates.
- Reviewer Sign-Off
- Space for supervisor, librarian, or legal counsel signature and date.
Sample Fair Use Checklist Template
| Section | Details |
|---|---|
| Course/OER Title | |
| Instructor/Designer | |
| Date | |
| Source Material | Title: Author: Date: Type: URL/DOI: |
| Learning Objective | |
| Transformative Use Description | |
| Portion Used | |
| Minimal Use Justification | |
| Market Impact Analysis | |
| Mitigation Strategies | |
| Accessibility Elements | Alt text: Captions/transcripts: Formats: |
| Attribution Statement | |
| Permissions | |
| Reviewer Sign-Off | Name: Role: Date: |
Implementation Tips
- Digitize Your Workflow: Use shared spreadsheets or form tools (e.g., Google Forms/Sheets) to ensure real-time collaboration and version control.
- Integrate with Instructional Design: Embed checklist steps into project management templates (e.g., Trello cards, LMS content-creation workflows) so fair use analysis becomes a natural phase, not an afterthought.
- Train and Share: Hold brief workshops or provide video walkthroughs demonstrating how to complete the checklist with real examples, reinforcing institutional norms around copyright compliance.
- Review Periodically: Schedule semesterly or annual audits of completed checklists to identify common pain points and update policies or guidance accordingly.
- Leverage Institutional Resources: Partner with librarians and legal counsel to refine the checklist language and ensure it reflects current legislation, TEACH Act requirements, and accessibility standards.
By adopting a detailed fair use checklist, educators and instructional designers create transparent, defensible processes for integrating copyrighted materials into OER. This not only reduces legal risk but also fosters a culture of ethical scholarship and inclusive, engaging learning experiences.