Fair use and Creative Commons licensing represent fundamentally different legal frameworks for accessing and reusing copyrighted materials in open educational resources. Fair use is a defensive legal doctrine that permits certain uses of copyrighted material without permission, relying on case-by-case analysis of transformative purpose and other factors. Creative Commons licensing, by contrast, is a proactive system where creators grant explicit permissions upfront through standardized licenses. Rather than competing approaches, these frameworks are complementary: fair use provides flexible access to copyrighted content when pedagogically necessary, while Creative Commons licensing provides legal certainty and global compatibility through explicit permissions. OER creators achieve optimal results through an “open-first” strategy that prioritizes CC-licensed materials as the foundation while selectively employing fair use to fill pedagogical gaps and incorporate specific copyrighted content that no openly licensed alternative adequately addresses. Understanding the strategic strengths and limitations of each framework—and their interaction—is essential for creating high-quality, legally defensible open educational resources.
Foundational Distinction: Doctrine vs. License
The fundamental difference between fair use and Creative Commons licensing lies in how each framework operates within copyright law:
Fair use is a legal doctrine codified in Section 107 of the U.S. Copyright Act that permits individuals to use copyrighted works without permission when the use is limited and serves specified purposes including teaching, scholarship, criticism, and research. Fair use is defensive in structure: it does not grant permission upfront but rather protects a user if their use is later challenged in court. A fair use claim requires evaluation of four statutory factors specific to each situation, with no predetermined rules guaranteeing protection.
Creative Commons licensing represents a fundamentally different mechanism: rather than relying on doctrine, Creative Commons provides standardized legal tools that enable creators to grant permissions in advance. When a creator applies a CC license, they explicitly communicate which uses are permitted—for example, “CC BY permits any use, including commercial and adapted versions, provided the creator is attributed”. These permissions are immediate and do not depend on case-by-case analysis.
A critical principle clarifies their relationship: Creative Commons licenses cannot restrict rights already protected by fair use. A CC license sits atop the copyright system rather than replacing it. Even if a creator applies a restrictive CC BY-NC license (prohibiting commercial use), a for-profit entity engaging in fair use—such as quoting the work in a critical essay—retains that right. Conversely, if a work is in the public domain or qualifies as fair use, a CC license adds nothing legally necessary but serves a transparency function by explicitly communicating permissions.
This architectural relationship means fair use and Creative Commons are not mutually exclusive. Rather, Creative Commons licenses expand permissions beyond what fair use provides, while fair use remains available as a backstop for any use not explicitly permitted by the license.
The Four Pillars of Fair Use Analysis
Evaluating whether a use qualifies as fair use requires analysis of four statutory factors, none of which alone determines the outcome:
Purpose and Character of the Use examines whether the new use serves a different function than the original. Educational and nonprofit uses receive favorable consideration, and increasingly, courts emphasize whether a use is “transformative”—whether it uses copyrighted material for a purpose fundamentally different from the original. An illustration from a commercial photographer’s portfolio is transformed into a historical document when incorporated into an OER history textbook with pedagogical annotations. The transformative purpose—using the photograph to teach history rather than showcase the photographer’s artistic technique—weighs heavily toward fair use.
Nature of the Copyrighted Work considers whether the source material is factual or highly creative. Factual works (news articles, scientific papers, documentaries) are more amenable to fair use incorporation than purely creative works (novels, films created for entertainment). Published materials receive more favorable treatment than unpublished works. This distinction reflects copyright law’s assumption that authors have a stronger interest in controlling the initial public release of unpublished materials.
Amount and Substantiality of the Portion Used examines how much of the original work is incorporated. Generally, using smaller portions favors fair use, but there is no magic percentage threshold. The controlling principle is whether the amount is contextually appropriate to the pedagogical purpose. An entire photograph may be necessary and appropriate to illustrate an architectural style in a design course; an entire film clip would likely be excessive when only a segment illustrates a cinematic technique.
Effect on the Market evaluates whether the use displaces or competes with sales of the original work. Educational use typically has lower market impact because instructional incorporation rarely substitutes for purchase of the original for its intended purpose. A textbook including copyrighted photographs for historical analysis is unlikely to reduce demand for the original photograph collection; the photograph serves a fundamentally different market function in each context.
These factors operate holistically rather than mechanically. A use might score well on three factors but fail the fourth (market effect), or demonstrate transformative purpose (favorable on factor one) that supports fair use despite using the entire work (unfavorable on factor three). Courts apply what legal scholars term “equitable rule of reason” analysis, weighing all facts and circumstances to determine whether benefits of the use exceed costs to the copyright owner.
Creative Commons Licensing: Architecture and Strategy
Creative Commons provides six standardized licenses built from four fundamental permission elements, enabling creators to specify precisely what permissions they wish to grant:
Attribution (BY) is mandatory in all six CC licenses, requiring that users credit the creator by including name, title, source, and license information. This universal requirement reflects commitment to authorship and accountability across all CC-licensed works.
NonCommercial (NC) restricts uses to noncommercial purposes. Importantly, this restriction applies to the nature of the reuse, not the entity reusing—a for-profit company engaging in noncommercial reuse (such as internal training) is permitted, while a nonprofit’s commercial reuse is not. This nuance prevents misunderstanding: a creator choosing CC BY-NC is protecting against commercial exploitation of their work, not restricting nonprofit entities generally.
NoDerivatives (ND) prohibits creating and sharing adapted versions. Works licensed ND cannot be translated, modified, or used as foundations for new creations, severely limiting educational utility. For this reason, the OER community strongly discourages ND licenses for educational materials.
ShareAlike (SA) requires that adapted works use identical license terms. Popularized by Wikipedia, ShareAlike ensures that improvements made by downstream creators remain open under the same terms—preventing “license laundering” where an openly licensed work is incorporated into a proprietary derivative.
These elements combine to create six licensing options ranging from maximally open (CC BY) to restrictive (CC BY-NC-ND):
| License | Permissions | Restrictions |
|---|---|---|
| CC BY | Any use, any purpose, adaptation, commercial | Attribution only |
| CC BY-SA | Any use, adaptation, commercial; must use same license | Attribution + ShareAlike |
| CC BY-NC | Any adaptation; noncommercial only | Attribution + NonCommercial |
| CC BY-NC-SA | Adaptation allowed; noncommercial + must use same license | Attribution + NonCommercial + ShareAlike |
| CC BY-ND | Sharing/distribution only; no adaptation | Attribution + NoDerivatives |
| CC BY-NC-ND | Sharing/distribution noncommercial only; no adaptation | Attribution + NonCommercial + NoDerivatives |
For open educational resources, CC BY is the community standard. CC BY maximizes reusability and remixability—educators can customize materials for specific learner populations, translate into different languages, integrate with other open resources, and share improvements with the community without legal barriers. This permissiveness directly supports OER goals of accessibility and adaptation for diverse learning needs.
CC BY-SA serves valuable functions for collaborative projects where contributors want assurance that improvements remain open (the Wikipedia model), but the share-alike requirement can complicate integration with other CC-licensed materials using different licenses. More restrictive licenses (NC, ND) substantially reduce educational utility by preventing adaptation or commercial educational use.
Strategic Comparison: Fair Use vs. Creative Commons
Flexibility and Adaptability
Fair use excels in accommodating unforeseen circumstances and emerging uses. Because fair use is principle-based rather than rule-based, it adapts flexibly to new technologies, new commercial practices, and new pedagogical approaches without requiring legislative amendment. When the internet emerged, fair use doctrine evolved to permit search engine indexing and thumbnail generation without requiring Congress to update copyright law. When AI and machine learning generated novel questions about data-mining copyrighted works, fair use doctrine provided a framework for analyzing these new uses without explicit statutory permission.
This flexibility is particularly valuable in educational contexts where new technologies and teaching methods constantly emerge. An educator developing an OER course on artificial intelligence can rely on fair use to analyze and discuss AI training materials, techniques, and outputs in ways that copyright doctrine explicitly contemplated but no legislator could have specifically anticipated.
Creative Commons, by contrast, locks permissions into predetermined license terms. An educator choosing CC BY-SA cannot subsequently permit commercial use, and a creator choosing CC BY-NC cannot permit for-profit educational enterprises to use their work even if such use would not harm the creator’s interests. This inflexibility occasionally creates suboptimal outcomes: a nonprofit creator might wish to permit non-profit commercial use (institutional training divisions) but not for-profit publishing exploitation. Creative Commons provides no mechanism for such granular permission-granting without custom licensing.
However, this apparent inflexibility reflects a different value: certainty. Rather than requiring users to analyze whether their intended use qualifies as fair use, CC licenses communicate permissions explicitly. Future users know precisely what is permitted; no legal analysis is required. For educators operating under budget constraints and without ready access to legal expertise, this certainty has substantial practical value.
Legal Certainty and Risk Management
Fair use’s flexibility comes at the cost of interpretive uncertainty. Each fair use claim requires fresh analysis of four factors. Even well-intentioned educators creating clearly pedagogical materials cannot guarantee in advance that their use will be deemed fair if challenged. This uncertainty has produced a documented “chilling effect”—over 60% of educators refrain from using copyrighted materials despite fair use protections because copyright anxiety leads to conservative choices. Institutional administrators, uncertain whether fair use claims will withstand legal scrutiny, sometimes refuse to support educators’ decisions to incorporate copyrighted materials.
The Code of Best Practices in Fair Use for Open Educational Resources substantially mitigates this anxiety by translating abstract doctrine into actionable professional guidance. However, the Code reduces but does not eliminate uncertainty—it represents consensus professional judgment, not absolute legal guarantee. Educators and institutions relying on fair use still assume some legal risk.
Creative Commons licensing eliminates this analytical burden. When using CC BY material, no fair use analysis is required. The license explicitly permits the intended use; legal certainty is complete. This certainty appeals particularly to risk-averse institutions and educators without legal resources to confidently assert fair use claims. For international collaborations where fair use is unavailable or severely limited, CC licensing provides essential certainty.
Global Accessibility and International Collaboration
Fair use is fundamentally a U.S. doctrine. While many countries recognize similar concepts—Canada’s “fair dealing,” European “copyright exceptions,” and comparable provisions elsewhere—these frameworks are substantially narrower and more restrictive than U.S. fair use. Canadian fair dealing, for instance, explicitly includes education as a purpose but provides much more limited scope than U.S. fair use for material amounts or complex adaptation. Civil law countries (most of continental Europe, Latin America, Asia) provide highly specific, enumerated exceptions that permit only narrowly defined copying (e.g., “articles in scientific collections up to 2% of the work”).
This divergence creates critical complications for international OER collaborations. When educators and institutions across borders develop OER together, they cannot reliably predict whether fair use analysis applied in the United States will prove valid in other jurisdictions. International projects typically must adopt the most restrictive jurisdiction’s requirements to ensure legal compliance everywhere—a practice that effectively undermines the pedagogical and collaborative goals of international OER development.
Creative Commons solves this problem through the international, “unported” version of CC licenses (CC 4.0 International). A work licensed CC BY 4.0 International operates identically globally, providing identical permissions regardless of jurisdiction or which country’s copyright law applies. This standardization enables seamless international collaboration without needing to determine which copyright system governs each component. Creators in the United States, Canada, and European institutions can work together on shared OER knowing that CC BY licensing provides consistent permissions across all jurisdictions.
This advantage is increasingly important as OER initiatives become more globally integrated. UNESCO initiatives, international research collaboration, and borderless online learning all benefit from the jurisdictional neutrality that Creative Commons provides but fair use cannot.
Pedagogical Quality vs. Legal Safety
Fair use enables educators to incorporate the full spectrum of copyrighted materials their pedagogy demands, unconstrained by the availability of openly licensed alternatives. A history educator can include the most impactful primary documents, whether or not those documents are available under CC licenses. A media literacy course can analyze contemporary commercial media—advertisements, music videos, film clips—as they actually exist, not simplified CC-licensed approximations. A biology course can incorporate authentic scientific literature demonstrating how contemporary scientists work, not outdated materials selected primarily for open availability.
Fair use thus supports what the Code of Best Practices terms “compelling, impactful, and adaptable” educational materials. Fair use prevents educators from having to “choose a pedagogically inferior alternative, or forgo using an insert altogether, out of a misplaced concern that relying on fair use is somehow in tension with the goals of open education”. Instead, fair use becomes a tool for achieving pedagogical excellence.
Creative Commons, by contrast, constrains creators to materials already licensed openly—a valuable but necessarily limited pool. As CC-licensed content expands, this limitation diminishes, but it remains a constraint. An educator developing a course on contemporary media, politics, or culture must choose between incorporating the most pedagogically effective proprietary materials under fair use or restricting to openly licensed alternatives that may be less immediate or impactful.
The Code of Best Practices implicitly recognizes this trade-off: educators should not sacrifice pedagogical quality to avoid fair use analysis. Rather, fair use exists as a right precisely to enable such incorporation when pedagogically justified.
Material Discovery and Metadata
Creative Commons excels in enabling discovery of licensed materials through machine-readable metadata. CC licenses include RDF (Resource Description Framework) metadata embedded in HTML code that search engines understand and can parse. A user searching for “CC BY biology textbook” can filter search results by license type, making discovery of appropriate materials systematic and efficient. Major platforms including Flickr, Unsplash (3 million+ CC0 photographs), Wikipedia, and countless educational repositories provide search filtering by CC license.
Fair use materials have no standardized discovery mechanism. The Code of Best Practices recommends that OER creators signal fair use incorporation through front-matter notices, labeling systems, or hybrid approaches, but no technological infrastructure enables search filtering by fair use status. Discovering fair use materials requires explicit searching and manual review—substantially less efficient than CC-filtered discovery.
This metadata advantage supports broader open education goals by making CC-licensed materials more discoverable and easier to integrate into new resources. However, it does not imply pedagogical superiority; it reflects a practical difference in infrastructure rather than legal standing.
The Strategic Approach: “Open-First” OER Development
Given these complementary strengths and limitations, OER best practice combines both frameworks through what educators term an “open-first” strategy:
Step 1: Foundation using CC-licensed materials. Educators begin by identifying CC-licensed content that addresses their pedagogical objectives. CC BY is preferred, enabling unrestricted reuse and adaptation; CC BY-SA is acceptable for collaborative projects. This foundation layer provides legal certainty, global compatibility, and discoverable content.
Step 2: Supplementation using fair use. Where CC-licensed alternatives prove pedagogically inadequate—where no CC-licensed source adequately addresses learning objectives, or where specific copyrighted content is necessary for authenticity or effectiveness—educators incorporate copyrighted materials under fair use. Fair use fills gaps identified after exhaustive searching for openly licensed alternatives.
Step 3: Transparency about both. The final OER clearly signals where CC licensing applies and where fair use has been relied upon, enabling downstream creators to understand and extend the fair use rationale. This transparency transforms fair use from an individual creator’s risk calculation into community knowledge infrastructure.
This approach balances legal certainty with pedagogical quality. Rather than forcing educators to choose between being legally conservative (using only CC materials) or pedagogically ambitious (relying on fair use analysis), the open-first strategy leverages CC’s legal clarity while fair use’s flexibility enables exceptional pedagogy. International collaborations increasingly adopt this model, licensing the bulk of materials CC BY 4.0 International while documenting fair use reliance where appropriate.
Accessibility and Universal Design
Fair use provides explicit legal foundation for accessibility adaptations. The Authors Guild v. HathiTrust court decision affirmed that fair use protects creating accessible versions of copyrighted works for people with disabilities, a principle the Code of Best Practices explicitly references and endorses. When no licensed accessible version exists, fair use permits educators to create one for students with disabilities, then incorporate that adapted version into OER.
Creative Commons licensing also supports accessibility, particularly through CC BY and CC BY-SA. These licenses explicitly permit adaptation, enabling educators to add captions, descriptions, and alternative text without seeking permission. The practical difference is that fair use provides a legal basis even when creators have not explicitly granted permission, while CC licensing makes permission explicit.
More restrictively licensed CC materials (CC BY-ND, CC BY-NC-ND) actually create accessibility barriers by prohibiting the modifications necessary to serve students with disabilities. This limitation has prompted OER community guidance that ND licenses are inappropriate for educational resources precisely because they undermine accessibility commitments.
International Extensions and Variations
Several jurisdictions have developed their own fair use or fair dealing codes reflecting community practice:
Canada published a Code of Best Practices in Fair Dealing for Open Educational Resources in 2024, adapted from the U.S. Code but reflecting Canada’s narrower fair dealing doctrine. The Canadian version benefits from the extensive consultation process behind the U.S. Code while acknowledging that Canadian law, while similar, provides more limited scope.
United Kingdom, Australia, and other common law jurisdictions recognize fair dealing frameworks similar to Canada’s—enumerated purposes (criticism, review, news reporting) rather than the flexible U.S. fair use approach. These jurisdictions are increasingly recognizing education as a fair dealing purpose, but scope remains narrower than U.S. fair use.
European Union and civil law jurisdictions typically provide highly specific, enumerated exceptions rather than flexible standards. These systems often cannot accommodate the breadth of educational incorporation that U.S. fair use permits. As a result, international OER projects rely primarily on CC licensing rather than fair use, since CC provides jurisdictionally-independent permissions.
Practical Decision Framework
OER creators should employ the following decision framework when deciding whether to rely on fair use or seek CC licensing:
Use Creative Commons licensing when:
- Openly licensed alternatives exist that adequately serve pedagogical objectives
- International distribution is intended or likely
- Institutional risk-aversion is high or legal resources limited
- Materials will be part of collections benefiting from discovery metadata
- Long-term stability and future-proof permissions are priorities
Use fair use when:
- No CC-licensed equivalent adequately serves pedagogical purposes
- Specific copyrighted content is necessary for authenticity (primary documents, contemporary media)
- Transformative educational analysis or illustration is the intended use
- The educational institution or creator has sufficient legal support
- Careful signaling and transparency about fair use reliance is feasible
Combine both when:
- Creating comprehensive OER resources addressing multiple pedagogical objectives
- International collaboration is involved (CC forms majority; fair use supplemental)
- Maximizing accessibility and universal design (CC BY/SA + fair use for necessary adaptations)
- Building sustainable open education resources where quality is paramount
Conclusion
Fair use and Creative Commons licensing represent complementary rather than competing legal frameworks for open educational resources. Fair use provides flexible, doctrine-based access to copyrighted materials without requiring creator permission, enabling educators to incorporate pedagogically necessary content unconstrained by what happens to be openly licensed. Creative Commons licensing provides upfront, explicit, standardized permissions that offer legal certainty, global compatibility, and efficient discoverability.
Rather than forcing educators to choose one framework, best practice combines both strategically. An “open-first” approach prioritizes CC-licensed materials as the foundation—leveraging their legal clarity and international compatibility—while selectively employing fair use to fill pedagogical gaps and incorporate specific copyrighted content that no openly licensed alternative adequately addresses.
OER creators operating in this integrated framework achieve outcomes neither framework alone could accomplish: the legal certainty of Creative Commons combined with the pedagogical flexibility of fair use, creating high-quality, legally defensible open educational resources that serve diverse learners globally. Understanding each framework’s strategic strengths—and how they work together—empowers educators to make principled decisions that prioritize both legal compliance and educational excellence.