Open Educational Resources (OER) have transformed learning by making high-quality educational materials freely available to educators, students, and self-learners around the world. Yet incorporating copyrighted content—such as images, text excerpts, audio clips, or videos—into these resources can feel daunting. The doctrine of fair use provides a legal framework that allows educators and OER creators to use limited portions of copyrighted works without obtaining permission, provided they carefully evaluate four key factors. This guide demystifies fair use in an educational context and offers practical strategies for crafting legally sound, engaging OER.
Why Fair Use Matters for OER Creators
Fair use exists to balance the rights of copyright holders with the public interest in education, research, and commentary. For OER developers, understanding fair use is crucial because:
- It expands access by allowing reuse of quality materials when permissions are impractical or cost-prohibitive.
- It helps avoid copyright infringement, which can lead to takedown notices, legal disputes, and reputational harm.
- It underscores the importance of ethical attribution and respect for original creators.
By mastering fair use principles, OER creators can confidently blend copyrighted materials with their own content, enriching lessons while staying within legal bounds.
The Four Fair Use Factors Explained
When evaluating a potential use under fair use, U.S. copyright law directs us to consider these four factors in their totality:
- Purpose and Character of the Use
- Is your use transformative, meaning does it add new expression, context, or insight?
- Is the use noncommercial and educational in nature? Courts are more likely to favor fair use when the material is repurposed for commentary, criticism, scholarship, or teaching rather than for profit.
- Nature of the Copyrighted Work
- Was the original work highly creative (e.g., a novel, song, film) or primarily factual (e.g., news report, scientific data)?
- Uses of factual or nonfiction works tend to weigh more heavily in favor of fair use because they further educational goals and public discourse.
- Amount and Substantiality
- How much of the original work are you using? Using smaller, less significant excerpts generally supports fair use.
- Avoid copying the “heart” of a work; even a brief but highly memorable passage may count as substantial.
- Effect on the Market
- Will your use compete with or diminish the market value of the original work?
- If your OER could serve as a substitute for the copyrighted work—thereby reducing sales or licensing opportunities—this factor may lean against fair use.
No single factor is dispositive. Instead, weigh all four factors together, documenting your analysis to demonstrate good faith and due diligence.
Applying Fair Use to Common OER Scenarios
Textual Excerpts and Commentary
Scenario: Quoting a paragraph from a peer-reviewed article to illustrate a research methodology.
Best Practice:
- Use only the specific sentences required (e.g., 1–2 brief paragraphs).
- Surround the excerpt with your own analysis—explain what the example shows and why it’s relevant.
- Include a clear citation and hyperlink to the original source.
Images, Diagrams, and Charts
Scenario: Including a chart from a published study to discuss statistical trends.
Best Practice:
- Crop the image to show only the relevant data.
- Add annotations or labels to clarify your teaching point.
- If available, consider redrawing or recreating the chart based on publicly available data, which can be transformative and avoid direct copying.
Audio and Video Clips
Scenario: Embedding a 30-second clip from a documentary to analyze filmmaking techniques.
Best Practice:
- Use only a short excerpt—typically no more than 10% of the total runtime.
- Provide commentary before and/or after the clip to highlight the specific elements under discussion.
- Host the video on a secure platform (e.g., your learning management system) rather than posting it publicly, minimizing wider distribution.
Poetry and Literary Works
Scenario: Analyzing a stanza from a poem in a literature unit.
Best Practice:
- Limit quotation to a few lines necessary for the analysis.
- Use italics or blockquote formatting, and introduce each excerpt with context that frames your critique.
- Always attribute the poet and original publication.
Practical Steps for a Strong Fair Use Defense
- Create a Fair Use Checklist
Develop a simple form to record:- The copyrighted work’s title, author, and publication details.
- The purpose, amount used, and your rationale for why it’s transformative or educational.
- Notes on market impact and any alternatives considered (e.g., public domain or Creative Commons works).
- Seek Alternatives First
Whenever feasible, use:- Public domain materials (e.g., works published before 1927 in the U.S.).
- Creative Commons–licensed content that explicitly permits reuse with attribution.
- Provide Clear Attribution
Even if you rely on fair use, always credit the original creator. A standard format includes:- Work title
- Author name
- Source or publication
- Date of publication
- License statement (if under a specific license)
- Include a Usage Statement
Within your OER, add a note such as:“This excerpt is used for critical analysis and commentary under fair use (U.S. Copyright Act §107).” - When in Doubt, Ask for Permission
For extensive use, high-resolution images, or materials whose fair use status is uncertain, contact the rights holder. Many publishers grant educational permissions upon request.
Navigating Digital and Distance Learning
The TEACH Act (2002) augments fair use for online instruction by allowing limited performance and display of copyrighted material within accredited distance education. Key requirements include:
- The material is part of the instructor’s own course materials.
- Access is restricted to enrolled students through secure, password-protected systems.
- The use must directly relate to course content and discussion.
Consult your institution’s copyright policy or instructional technology office for platform-specific guidelines and compliance checklists.
Building Institutional Support and Culture
Fair use thrives when creators have access to resources and peer support. Consider:
- Workshops and Webinars: Collaborate with your library or copyright office to offer training sessions on fair use analysis.
- Online Guides and Templates: Develop easily accessible checklists, attribution guides, and sample usage statements.
- Peer Review: Encourage colleagues to review each other’s fair use documentation, fostering shared learning and confidence.
For OER creators, fair use is both a powerful enabler and a responsibility. By thoughtfully applying the four statutory factors, opting for open-licensed alternatives when available, and meticulously documenting each decision, you can enrich your educational materials with diverse perspectives and high-quality content. Embrace fair use as a toolkit for innovation—transform copyrighted works into dynamic learning experiences—while upholding ethical standards and legal compliance.