The Code of Best Practices in Fair Use for Open Educational Resources, published in February 2021 by American University’s Program on Information Justice and Intellectual Property and NC State University Libraries, represents a transformative tool for OER creators. Developed through extensive community consultation involving hundreds of educators, librarians, and instructional designers, the Code translates abstract fair use doctrine into actionable, context-specific guidance. By providing four core principles addressing the most common fair use scenarios in OER development, coupled with concrete considerations and acknowledgment of hard cases, the Code empowers creators to confidently incorporate copyrighted materials necessary for pedagogically effective, accessible, and equitable educational resources. This framework has already proven instrumental in reducing copyright anxiety, establishing industry norms consulted by legal professionals and insurers, and enabling institutions to create higher-quality OER that better serve diverse learner populations.
The Genesis: Why the Code Was Needed
Before the Code’s publication, OER creators faced a fundamental problem: the abstract nature of fair use doctrine created paralyzing legal uncertainty. While U.S. copyright law explicitly permits fair use for educational purposes, the doctrine provides no bright-line rules, percentage thresholds, or categorical prescriptions. Fair use analysis is intentionally context-dependent and case-specific, requiring careful evaluation of transformative purpose, amount used, and market effects. This interpretive flexibility, while enabling copyright law to adapt to evolving creative practices, creates profound discomfort among educators and institutional administrators who typically prefer explicit guidance.
Research revealed that OER makers confronted an “unpalatable range of choices” when considering whether to incorporate copyrighted materials: leave potentially necessary content out entirely, substitute less pedagogically effective openly licensed alternatives, or link to external sources rather than incorporating them directly. The last option, linking rather than incorporating, posed particular risks. Links break over time, may redirect to unintended destinations, and critically, fail to support accessibility needs of students with disabilities—a concern especially acute during the COVID-19 pandemic when offline, self-contained educational materials proved essential for equitable distributed learning.
This copyright anxiety was not irrational risk aversion; it reflected genuine institutional and legal uncertainty. Many OER creators and educational administrators, uncertain whether their fair use claims would withstand legal scrutiny, defaulted to extreme risk avoidance that ultimately shortchanged the pedagogical mission. The Code of Best Practices was designed to resolve this gap by translating fair use from abstract doctrine into practical professional guidance grounded in actual OER community practices.
The Community-Driven Development Process
The Code’s authority and reliability derive from its rigorous, community-centered development methodology. Facilitated by Peter Jaszi and Meredith Jacob of American University’s Washington College of Law and William Cross of NC State University Libraries, the project conducted extensive consultation with the OER ecosystem: authors creating materials, librarians supporting OER initiatives, instructional designers, institutional administrators, publishers, network organizers, adopters, and educators across educational levels and disciplines.
Rather than legal scholars imposing their interpretation of fair use on practitioners, hundreds of community members participated in interviews, webinars, and workshops, articulating their current practices, expectations, and consensus standards. This collaborative approach is not novel—it followed the successful model pioneered by Aufderheide and Jaszi with other creative communities, including documentary filmmakers (whose statement of best practices became transformative in the field, fundamentally changing business practices and insurance underwriting). The final Code reflects near-universal consensus within the OER community about what constitutes acceptable fair use practice in specific recurring scenarios.
The resulting document was then vetted by leading legal scholars including Rebecca Tushnet (Harvard Law School), Carys Craig (Osgoode Hall Law School, whose expertise in Canadian copyright proved essential for cross-border considerations), and Kevin L. Smith (former Dean of Libraries at University of Kansas), ensuring both legal precision and practical utility.
The Four Principles: A Framework for Confident Creation
The Code articulates four consensus principles addressing the scenarios OER creators most commonly encounter:
Principle A: Using Inserts as Objects of Criticism and Commentary
Fair use has long protected commentary and analysis of copyrighted works. An OER literature survey is most effective when it includes the poems being analyzed; a media literacy course requires students to examine actual political advertisements; a film studies textbook achieves its pedagogical purpose only through critical engagement with actual film clips. The Code recognizes this as “non-controversial” fair use: when an OER addresses a text, image, or object directly, there is genuinely no pedagogical substitute for including that item.
The principle’s considerations guide creators: fair use inserts should generally be restricted to materials being directly examined; where students practice critical skills, the OER should include appropriate guidance such as annotations or reflection questions; the amount used should be quantitatively and qualitatively appropriate to the analysis (an entire song might be justified for musical analysis, but not an entire feature film if only a portion requires examination); and creators should draw from a range of source works rather than repeatedly citing the same authors.
Hard cases remain—creating a freestanding OER anthology of poems, for instance, may blur the line between criticism-dependent fair use and collection of literature for its own sake, potentially requiring case-specific legal guidance—but the principle clarifies that most direct analysis and commentary constitute fair use.
Principle B: Including Inserts for Illustration
The most common use of outside materials in teaching is illustrative: an iconic photograph from the Civil Rights Movement helps students grasp historical reality more viscerally than textual description; clips from Hollywood films spanning decades illustrate how cultural attitudes toward working women have evolved; a laboratory photograph of a classic experiment makes abstract methodology concrete. These illustrations were created in non-educational contexts (journalism, entertainment, scientific documentation), but their learning value derives precisely from their authenticity and original context—they cannot be effectively recreated.
The principle acknowledges that fair use supports incorporating such inserts across all subject areas and media, provided several conditions are met: the creator should be prepared to explain the pedagogical significance of each illustration; uses should avoid being “exclusively or primarily decorative” and should substantially enrich pedagogical narrative; the amount should be appropriate to the illustrative function (an entire photograph may justify fair use, while only a segment of a motion picture might be necessary); creators should select illustrations to avoid redundancy and draw from multiple sources; and appropriate attribution should be provided.
The hard case principle recognizes that some connections between illustrations and pedagogy are more oblique than others. Using epigraphs is well-established fair use practice, but introducing history chapters with photographs of adorable (but unrelated) baby animals stretches the principle too far. The controlling question is “nexus”—how persuasive an argument can a creator make that the insert serves an identifiable pedagogical purpose, even indirectly.
Principle C: Incorporating Content as Learning Resource Materials
Beyond analysis and illustration, students learn through practice—reading authentic literature in Spanish classes, engaging with real newspaper editorials in political science, analyzing actual patient monitoring systems in nursing education. OER achieves pedagogical depth when students encounter materials reflecting what they will encounter outside the classroom. These resource materials, while often subject to copyright, serve transformative purpose: they provide opportunities for skill-building and mastery, not reproduction of entertainment or information content.
The principle permits incorporating such materials provided the OER includes or references newly authored contextual materials making them accessible and directing student use (glossaries, annotations, study questions); the creator can explain pedagogical value beyond entertainment appeal; the amount is appropriate to the learning objective (an entire short article may be justified, but not lengthy texts when only portions serve the objective); materials derive from primary sources rather than educational versions already simplified; and various resource materials derive from a range of sources rather than clustering around a few.
Hard cases again emerge: using high-value contemporary popular culture in its entirety (such as an entire music video) as a resource material for general learning purposes—rather than as a text for critique—creates perception of higher challenge likelihood and requires especially well-prepared pedagogical justification.
Principle D: Repurposing Pedagogical Content from Existing Educational Materials
OER creation is “hard as well as valuable work,” and forcing creators to reinvent from scratch when useful materials exist wastes resources. Some educational sources were never created as course materials but can be transformed for educational use—nursing educators might extract relevant portions from manufacturers’ operating manuals, transforming professional documentation into pedagogical tools. Other sources were deliberately designed for education but have outlived their commercial lives while remaining protected by copyright—an out-of-print algebra textbook might contain problem sets worth incorporating into new OER, or a predecessor’s chapter structure on cell metabolism might provide useful organizational guidance.
The principle permits fair use to support such selective incorporation, provided creators analyze what copyright actually protects (recognizing that facts, ideas, general organizational structure, and “subject matter, general organization, and broad choices about coverage” are unprotected); understand that de minimis quotations may be permissible; explain the specific teaching or learning value of borrowed elements and justify the extent of material used; explain why their OER does not function as a market substitute; diversify sources when incorporating from superseded materials; and provide clear attribution (especially important when inserted text might be confused with newly authored content).
Hard cases arise when legacy works remain subject to straightforward licensing mechanisms, which may weigh against fair use claims, versus orphan works where copyright holder identification is impossible, favoring fair use.
Empowerment Through Clarity
The Code empowers OER creators through multiple mechanisms:
Reduces Copyright Anxiety: Historical analysis of other communities of practice is instructive. When documentary filmmakers adopted a Code of Best Practices, business practice fundamentally shifted—errors-and-omissions insurance companies, whose insurance is essential for distribution, began routinely accepting fair use claims. Critically, no community adopting a code of best practices has suffered a legal challenge for actions taken within its scope. This track record provides credibility to creators that reasonable adherence to the Code provides defensible protection.
Establishes Professional Norms: The Code operates not merely as a creator’s guide but as a standard that lawyers, judges, funding agencies, and institutional administrators consult and respect. When an OER creator can cite the Code’s four principles and point to near-universal consensus among the OER community, legal advisors and institutional risk managers recognize this represents reasoned professional judgment, not amateur improvisation.
Provides Flexible, Context-Sensitive Guidance: Crucially, the Code avoids the trap of false certainty. It deliberately does not prescribe word-count percentages, specific duration limits for video clips, or categorical rules that would paradoxically reduce fair use’s adaptability to evolving circumstances. Instead, it provides an analytical framework emphasizing the two core questions: Is the use transformative (serving a different purpose than the original)? Is the amount appropriate to that new purpose? This framework applies uniformly across media types and content categories, making fair use predictable and coherent without sacrificing flexibility.
Emphasizes Accessibility and Equity: The Code foregrounded OER community commitment to accessibility as a fundamental principle. Fair use is explicitly recognized as a tool for compliance with disability law (ADA, Section 504, ultimately referenced in the Authors Guild v. HathiTrust precedent affirming that fair use justified making works accessible to print-disabled persons). The Code’s emphasis on incorporating materials rather than linking strengthens accessibility: offline, self-contained resources serve students lacking reliable high-speed internet or appropriate devices, an equity concern made acute by pandemic-era remote learning. The principle of universal design—that engineering for accessibility benefits all users—grounds the Code’s support for comprehensive fair use in educational contexts.
Separates Pedagogy from Copyright Anxiety: The Code’s foundational insight is that “good pedagogy is good fair use practice—a careful understanding of the specific pedagogical purpose of an insert is the foundation of the legal determination that it is fair use”. This reframing gives educators permission to prioritize pedagogical quality: creators should not “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, rather than aligned with them”. Fair use is a right, not merely a risky defense.
Supporting Transparency and Community Learning
The Code promotes what the OER community terms “signaling” fair use—clearly acknowledging when inserts rely on fair use rather than licensing or public domain status. Three approaches are recommended:
Indirect acknowledgement: A front-matter notice states, “Unless otherwise indicated, third-party texts, images, and other materials quoted in these materials are included on the basis of fair use as described in the Code of Best Practices for Fair Use in Open Education.” This approach, complementing existing practices of labeling CC-licensed and public domain materials, signals without requiring detailed reasoning for each item.
Direct acknowledgement: Individual inserts are labeled affirmatively (e.g., “This illustration, from [SOURCE], is included on the basis of fair use”) or marked with a symbol (such as an encircled [F]).
Hybrid acknowledgement: Indirect labeling for most inserts, with direct, principle-referenced specifics for items where downstream adopters might benefit from additional guidance.
This transparency mechanism enables subsequent adapters to understand and extend creators’ fair use rationales. An educator simplifying a college-level biology OER for high school students can recognize that the fair use justification for including an illustration—its authenticity and pedagogical role in demonstrating cellular function—persists across contexts. In this shared enterprise of creating and adapting OER, signaling transforms fair use from an individual creator’s risk calculation into community knowledge infrastructure.
Impact on OER Quality and Access
The Code’s existence has measurable effects on OER adoption and student outcomes. Institutions implementing OER initiatives supported by Copyright guidance report higher student success rates (73% in OER courses versus 70% in comparable non-OER courses at Sacramento City College) and particular equity benefits: African-American student success improved 6.4 percentage points in OER courses. These gains correlate with broader OER adoption supported by institutions confident in their fair use rights.
Beyond empirical outcomes, the Code enables the creation of qualitatively superior OER. Rather than constraining themselves to openly licensed materials—a pool valuable but necessarily limited—creators can incorporate the full spectrum of source materials their pedagogy demands. A history textbook can include the most evocative primary documents without awaiting Creative Commons licensing. A media literacy curriculum can analyze the actual advertisements students encounter daily. A language course can expose students to authentic media reflecting contemporary native-speaker usage patterns.
Canadian Adaptation and International Extensions
The Code’s impact extends beyond the U.S. context through adaptation and translation. The Canadian Association of Research Libraries published a Canadian Code of Best Practices in Fair Dealing for Open Educational Resources in 2024, benefiting from the U.S. Code’s consultation process while adapting to Canada’s narrower fair dealing doctrine. This adaptation demonstrates the Code’s transferability: the fundamental principles of transformative use and context-specific analysis remain sound across jurisdictions, even where the underlying legal doctrine differs.
The U.S. Code explicitly addresses international considerations in appendices discussing fair dealing in Canada and copyright exceptions globally, acknowledging that international OER collaborations must navigate multiple legal systems. This comparative perspective, unusual in copyright guidance documents, reflects the OER community’s global orientation and commitment to building educational commons that serve learners worldwide.
The Broader Significance: Fair Use as Community Practice
The Code of Best Practices represents maturation of fair use doctrine as practical professional standard rather than abstract legal principle. Rather than awaiting appellate decisions that may take years to clarify ambiguous doctrinal territory, communities of practice can collectively establish norms, articulate consensus standards, and create frameworks that counsel legal advisors, influence institutional policy, and guide individual decision-making.
Patricia Aufderheide and Peter Jaszi, whose pioneering work at American University established this movement, articulated the insight that codes “boost the confidence that content creators have in their own decisions about fair use, thus promoting the generation of new creative works, even in political environments hostile to the legislative reform of copyright law”. For OER specifically, this confidence directly enables the open educational movement’s core mission: ensuring high-quality, affordable, adaptable learning materials accessible to all students regardless of economic circumstances.
Conclusion
The Code of Best Practices in Fair Use for Open Educational Resources empowers creators by translating abstract fair use doctrine into actionable professional guidance grounded in community consensus. Through four carefully articulated principles addressing common scenarios—criticism and commentary, illustration, learning resource incorporation, and repurposing existing materials—accompanied by concrete considerations and acknowledgment of hard cases, the Code provides the clarity necessary for confident decision-making.
Equally important, the Code reframes the relationship between pedagogy and copyright: good teaching is good fair use practice when grounded in clear pedagogical purpose and appropriate scope. By establishing that fair use constitutes a right rather than merely a risky defense, and by emphasizing accessibility and equity as core principles, the Code removes barriers that previously forced educators to choose between pedagogical quality and perceived legal safety.
The Code’s success in reducing copyright anxiety, establishing professional norms consulted by legal professionals and institutional administrators, and supporting measurable improvements in OER adoption and student outcomes demonstrates that communities of practice can effectively govern complex doctrine through collaborative norm-setting. As OER continues to expand globally, the Code’s foundational insight—that fair use should be reclaimed as a positive force for educational access and innovation, not feared as a legal minefield—becomes increasingly vital to the movement’s capacity to fulfill its transformative potential.