When educators and institutions collaborate across international borders to develop Open Educational Resources, they encounter a critical legal reality: there is no global Fair Use doctrine. While the United States provides educators with flexible fair use protections for educational uses of copyrighted material, the vast majority of other countries operate under fundamentally different legal frameworks with significantly more restrictive copyright exceptions. This divergence creates substantial complications for international OER collaborations, requiring participants to navigate multiple conflicting legal systems and often adopt the most restrictive approach to ensure compliance everywhere.
Understanding this landscape—and the practical strategies for managing it—is essential for anyone involved in cross-border educational resource development.
Understanding the Global Copyright Landscape: Three Competing Frameworks
The world’s copyright systems divide into three distinct categories, each with profoundly different implications for educational use:
The U.S. Fair Use Framework
The United States employs a flexible, open-ended fair use doctrine codified in Section 107 of the Copyright Act. Rather than enumerating specific permissible uses, U.S. law provides a general exception permitting limited use of copyrighted works and requires courts to evaluate four flexible factors without predetermined outcomes:
- Purpose and character of the use (is it transformative? educational?)
- Nature of the copyrighted work (creative or factual?)
- Amount and substantiality of the portion taken (how much was used?)
- Effect on the market for the original work
This flexibility enables fair use to adapt to new technologies and educational contexts as they emerge. Fair use protections extend broadly across educational uses, criticism, commentary, research, and other socially beneficial purposes.
Critically, U.S. fair use protection is broader than most international copyright exceptions. An educational use that qualifies as fair use in the United States might constitute clear copyright infringement in other jurisdictions.
Fair Dealing in Common Law Countries
Countries inheriting English common law tradition—including Canada, Australia, the United Kingdom, Singapore, and others—employ a fair dealing framework providing narrower, enumerated exceptions to copyright. Rather than flexible factors applied case-by-case, fair dealing specifies particular purposes for which limited use is permitted:
Permitted fair dealing purposes typically include research, private study, criticism, review, news reporting, and parody, though permitted purposes vary by country.
Unlike U.S. fair use, fair dealing does not provide a general educational exception applicable to all educational contexts. Teachers and educators cannot automatically rely on fair dealing to justify any educational use; rather, they must demonstrate that use falls within one of the specified purposes (e.g., criticism or news reporting).
Important distinction: Even where fair dealing permits uses, the purposes recognized are often narrower than U.S. fair use, and the application is more restrictive. For example, Australian fair dealing traditionally did not recognize a general “teaching” exception comparable to U.S. fair use.
Civil Law Countries and Enumerated Exceptions
Civil law jurisdictions (representing much of Continental Europe, Latin America, and Asia) provide highly specific, enumerated copyright exceptions. Rather than flexible tests or purpose-based frameworks, these systems specify exact circumstances under which copying is permitted.
For example, a European country might provide exceptions for:
- Reproduction of articles in scientific collections
- Private copying (under certain technological conditions)
- Specific educational photocopying (limited to defined percentages)
- Quotation for criticism and review (under defined length restrictions)
Critical difference from common law systems: These enumerated exceptions are often narrower and less flexible than both U.S. fair use and Commonwealth fair dealing. They provide greater legal certainty but less adaptability to educational innovation or emerging technologies.
The Three-Step Test: International Copyright Framework
All countries bound by international copyright treaties (Berne Convention, TRIPS, WIPO treaties) must comply with the three-step test, which constrains what exceptions countries can legally provide:
Copyright exceptions must apply only to:
- Certain special cases (not broad general categories)
- Which do not conflict with normal exploitation of the work (exceptions cannot substitute for licensing)
- And do not unreasonably prejudice legitimate interests of authors
This test, while flexible in language, is rarely directly applied and does not create predictable guidance about what uses are permissible across jurisdictions. The three-step test functions as a constraint on national legislation rather than a direct copyright exemption.
Practical Implication: A use protected under U.S. fair use is theoretically compatible with the three-step test and therefore should theoretically be permissible under international law. However, many countries interpret the three-step test more restrictively than the United States does, resulting in a narrower scope of permissible uses even when theories are compatible.
Fair Use Versus Fair Dealing: Key Differences for International Collaborations
For educators developing OER internationally, understanding specific differences between fair use and fair dealing frameworks becomes practically critical:
| Dimension | U.S. Fair Use | Common Law Fair Dealing | Implications for OER |
|---|---|---|---|
| Framework | Flexible, open-ended factors | Enumerated permitted purposes | OER should avoid relying on fair use in fair dealing jurisdictions |
| Educational use | Broad protection for teaching | Narrower, purpose-specific exceptions | Teaching may not qualify in fair dealing countries |
| Transformation | Highly valued; supports parody, remix, adaptation | Less central; specific purposes trump transformation | International OER requiring adaptation may exceed fair dealing |
| Commercial purpose | Permitted if transformative | Generally prohibited; commercial use disqualifies fair dealing | Monetized OER platforms may violate fair dealing in international contexts |
| Burden of proof | Defendants prove fair use if challenged | Varies by country; often more defendant-burden | Litigation risk differs across collaborating jurisdictions |
Case Study: Why Fair Use Cannot Be International
A concrete example illustrates the problem. Professor Sarah Chen in the United States creates an educational video analyzing advertising representations of gender, incorporating short clips from multiple commercial advertisements. Under U.S. fair use doctrine, this use likely qualifies as fair use: it is transformative (analyzing rather than merely displaying ads), uses limited portions necessary for analysis, and does not harm the market for original ads.
However, if Professor Chen’s institution collaborates internationally with a partner university in Germany to distribute this same video to international students:
- German copyright law provides enumerated exceptions for specific purposes but does not recognize “transformative use” as a general principle
- The video incorporates advertising material without explicit permission
- German fair use equivalent does not provide automatic protection for this type of educational analysis
- The video’s international distribution might be considered “public distribution” requiring explicit licensing in Germany
Result: A use legally protected as fair use in the U.S. may constitute copyright infringement when the same resource is distributed internationally.
International Treaty Framework: What Actually Harmonizes Copyright
Despite divergent national copyright systems, several international treaties establish minimum standards that all signatory nations must meet:
The Berne Convention (1886, administered by WIPO) represents the oldest international copyright framework, establishing minimum protection standards for literary and artistic works. All World Trade Organization members are required to comply with Berne provisions. Critically, the Berne Convention itself contains few educational exceptions; most copyright protection falls to national legislation.
TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) (1994) through the World Trade Organization harmonizes intellectual property law globally. TRIPS incorporates Berne substantive provisions and adds obligations regarding enforcement and dispute resolution. Like Berne, TRIPS establishes minimum protection rather than maximum rights—it ensures copyright holders receive certain protections but does not mandate specific educational exceptions.
WIPO Treaties (1996 and later) including the WIPO Copyright Treaty and Beijing Treaty update international protection for digital technologies but similarly establish minimums rather than detailed provisions for educational use.
Critical reality: International treaties harmonize copyright protection upward—requiring all countries to protect authors’ interests—but do not harmonize exceptions and limitations downward. Treaties permit countries to create their own exceptions, leading to dramatic variation in what educational uses are legally permissible.
The Fundamental Gap: No International Framework for Educational Copyright Exceptions
UNESCO’s 2019 Recommendation on Open Educational Resources explicitly identifies a critical gap: there exists no international agreement establishing common copyright exceptions for education and research purposes. This absence is precisely what complicates international OER development.
UNESCO’s Recommendation specifically calls for Member States to explore developing such a framework:
“Action (e): Exploring the development of an international framework for copyright exceptions and limitations for education and research purposes to facilitate cross-border exchange and cooperation on OER”
However, creating such a framework faces substantial political and legal obstacles. Countries with well-established copyright exceptions resist constraining their sovereignty over copyright policy. Countries with profitable publishing industries resist standardized educational exceptions. Countries with limited copyright enforcement capacity have different priorities than highly developed systems.
As of 2025, no international agreement specifically harmonizing educational copyright exceptions exists, and progress toward such harmonization remains limited.
Licensing Solutions: When Copyright Law Fails, Contracts Step In
Given the absence of harmonized copyright exceptions, international OER collaborations typically rely on explicit licensing rather than fair use doctrine to ensure legal compliance across multiple jurisdictions:
Creative Commons Licensing and International Harmonization
Creative Commons provides one of the most successful attempts at creating transnational licensing harmony:
The Challenge: The same CC license means different things in different jurisdictions because it operates within each country’s copyright framework. A CC BY license granted under U.S. copyright law includes permissions derived from U.S. fair use. The same license in a fair dealing or enumerated-exceptions jurisdiction must work within that country’s legal framework, potentially yielding different practical permissions.
The Solution: Creative Commons moved from “ported” licenses (customized for each jurisdiction) toward “unported” (international) licenses beginning with Version 4.0 released in 2013. The international license is drafted to function effectively worldwide by:
- Using language compatible with multiple legal traditions (fair use, fair dealing, civil law exceptions)
- Anticipating differences in moral rights traditions across jurisdictions
- Providing flexibility for subsequent versions and adaptations across legal systems
- Incorporating both creative commons Deeds (human-readable) and legal code (machine-readable) to communicate permissions clearly despite legal-system differences
Why this matters for OER: When international OER collaborations license materials under CC BY 4.0 (the unported international license), all collaborating partners understand the license operates identically globally rather than requiring different licensing approaches in different jurisdictions. This standardization enables seamless international collaboration without needing to determine which country’s copyright law applies to each component.
However, crucial limitation: Even CC BY international licenses do not override national copyright laws. If a use is prohibited under a country’s copyright law (e.g., a particular use is not a permitted exception), the CC license cannot grant permission for that use. CC licenses operate within and subject to applicable copyright law; they do not supersede it.
Practical OER Licensing Strategy: Most international OER use CC BY 4.0 (international unported version) precisely because it provides standardized global permissions while respecting national copyright frameworks. This approach avoids the complexity of determining which country’s copyright law applies while ensuring materials can be freely shared across borders.
Managing Copyright Complications in International OER Development
Organizations developing OER collaboratively across borders should implement systematic strategies addressing copyright complexity:
Rights Clearance Strategy
Rather than relying on fair use or fair dealing, international OER projects should:
- Secure explicit licensing of all copyrighted third-party content incorporated in materials
- Work with material already available under open licenses (CC-licensed, public domain, government works)
- Create original material rather than incorporating copyrighted material relying on fair use
This approach eliminates copyright uncertainty by ensuring explicit permission rather than relying on legal doctrines that vary internationally.
Jurisdiction Selection Strategy
International collaborations should consider:
- Where the OER will be developed (which country’s copyright law applies to the creation process?)
- Where materials will be hosted (which country’s law applies to distribution?)
- Target audience and distribution scope (purely domestic vs. international?)
In practice, most international OER are developed and hosted to be jurisdiction-neutral, deliberately avoiding reliance on any particular country’s copyright law by using clear CC licensing and avoiding materials requiring jurisdiction-specific copyright exceptions.
Stakeholder Consultation Strategy
International projects should:
- Consult legal advisors familiar with copyright law in collaborating jurisdictions
- Engage with stakeholders in each jurisdiction about practical compliance requirements
- Document copyright clearing decisions thoroughly, explaining why specific materials were or were not included
This documentation creates defensible records explaining decision-making if copyright disputes later arise.
Metadata and Transparency Strategy
International OER should:
- Clearly document third-party content including source, original license, and how it’s used
- State what copyright law was applied (e.g., “developed under U.S. copyright law but licensed internationally”)
- Provide source files and attribution information enabling downstream users to verify licensing compliance
This transparency helps users understand the legal status of materials and enables informed reuse decisions.
Emerging Solutions: Cross-Border Mechanisms
Recent developments suggest potential paths forward for international copyright harmonization:
European Union Harmonization
The EU has harmonized copyright exceptions across member states to some degree, creating more uniform frameworks than exist globally. EU copyright law recognizes exceptions for:
- Research and educational purposes (broader than many countries)
- Accessible format copies (for visually impaired persons)
- Orphan works (whose copyright holders cannot be found)
These harmonized EU exceptions demonstrate that international harmonization is possible, though politically complex.
Academic and Research Privileges
Some jurisdictions provide specific exceptions for academic research and institutional repositories that facilitate international scholarly collaboration. These exceptions often extend to educational uses, particularly in universities and research contexts.
Open License Standardization
Creative Commons’ success in creating interoperable international licenses demonstrates that standardized approaches can work across legal systems. Similar standardization efforts for other types of intellectual property (open source software licenses, open data frameworks) extend this model.
Bilateral and Regional Agreements
Some countries are negotiating bilateral or regional copyright agreements that specifically address educational exceptions and cross-border educational material sharing. These targeted agreements can harmonize educational copyright law without requiring comprehensive global treaties.
Practical Recommendations: International OER Development
Organizations and educators engaged in cross-border OER collaboration should:
1. Prioritize Clear Licensing Over Reliance on Fair Use
License all materials under CC BY 4.0 (international unported version). Do not rely on fair use or fair dealing doctrine to justify international use of copyrighted material without explicit licensing.
2. Understand Your Jurisdiction’s Framework
Learn whether your country uses fair use (U.S.-style flexibility), fair dealing (enumerated purposes), or specific exceptions. Understand that your copyright framework may not apply internationally.
3. Consult Jurisdiction-Specific Legal Advice
For high-stakes OER development involving substantial third-party content, engage legal advisors familiar with copyright law in all relevant jurisdictions. This investment prevents costly later disputes.
4. Source Content Deliberately
Prioritize content that is:
- Public domain
- Licensed under CC BY or other open licenses compatible with international use
- Created by the OER project itself (original content)
- Licensed from copyright holders with explicit permissions
Avoid relying on copyrighted material without explicit licensing, even if fair use might justify the use in your jurisdiction.
5. Document Copyright Clearing Decisions
Record why specific materials were included or excluded, what permissions were sought, and how licensing decisions were made. This documentation supports defensible copyright compliance.
6. Use International, Unported Licensing
When licensing OER internationally, use CC BY 4.0 (international unported) rather than jurisdiction-specific versions. This standardizes permissions globally while respecting national copyright frameworks.
7. Engage in Advocacy for International Educational Copyright Frameworks
Support UNESCO’s call for developing international agreements on copyright exceptions for education and research. Advocate for policy development that enables cross-border educational collaboration.
Conclusion: Legal Reality of International OER Development
The absence of a global Fair Use doctrine creates genuine complexity for international OER collaborations. Rather than relying on copyright exceptions that vary dramatically across jurisdictions, successful international OER projects employ explicit licensing—particularly Creative Commons international licenses—as the foundation for legal compliance. By combining clear licensing with deliberate content sourcing decisions, thorough copyright clearing, and transparency about legal frameworks, international OER collaborations can navigate the complex cross-border copyright landscape while contributing to the global commons of open educational resources. As UNESCO’s Recommendation on OER emphasizes, developing international frameworks for educational copyright exceptions represents a critical priority for enabling education’s global development and achieving Sustainable Development Goal 4. Until such frameworks exist, international OER practitioners must work strategically within existing legal complexity.