Fair use serves as a cornerstone legal doctrine enabling the creation, adaptation, and dissemination of open educational resources (OER). As a provision within U.S. copyright law that permits limited use of copyrighted materials without permission, fair use directly addresses critical challenges in education: prohibitive textbook costs, accessibility barriers for students with disabilities, and curricular inflexibility imposed by commercial publishers. Without robust fair use protections, educators and OER creators face significant legal uncertainty that constrains pedagogical innovation and reduces access to diverse educational materials. The doctrine is particularly vital for OER because it enables educators to incorporate existing copyrighted content into openly licensed educational materials—a practice essential for creating compelling, contextually relevant learning resources while maintaining legal defensibility.
The Legal Architecture of Fair Use in Educational Contexts
Fair use represents a deliberate balance built into U.S. copyright law through Section 107 of the Copyright Act. The doctrine permits individuals to use copyrighted works without permission or payment when the use is limited and serves specified purposes, including teaching, scholarship, criticism, and research. Educational institutions occupy a privileged position within fair use doctrine because education itself is explicitly recognized as a favored purpose.
The legal test for fair use requires analysis of four factors, though courts increasingly emphasize the concept of “transformative use” as the primary lens through which fair use claims are evaluated. A use is transformative when it employs copyrighted material in a new manner or context, distinct from its original intended purpose, thereby creating new expression, meaning, or insight. This framework is particularly advantageous for educational applications because pedagogical use of materials almost invariably serves a different purpose than the original creation—a document, image, or video originally produced for commercial or entertainment purposes becomes transformed when incorporated into a lesson to illustrate historical context, scientific principles, or critical analysis.
The four statutory factors operate together in a holistic assessment:
| Factor | Implications for OER |
|---|---|
| Purpose and Character | Educational, nonprofit, and transformative uses strongly favor fair use; emphasis on whether new work adds value beyond mere reproduction |
| Nature of Copyrighted Work | Factual works more amenable to fair use than creative works; published status generally more favorable |
| Amount and Substantiality | Small quantities favor fair use, but amount must be appropriate for transformative purpose; taking the “heart” of work disfavors fair use |
| Market Effect | Whether use competes with or displaces sales of original work; availability of licensed alternatives relevant |
Educational context provides substantial weight to fair use analysis, but it is essential to understand that educational purpose alone does not guarantee protection. Instead, courts examine whether the use genuinely transforms the copyrighted material through new pedagogical application.
Fair Use as Enabler of OER Creation and Adaptation
Fair use directly enables the creation of high-quality OER by permitting educators to selectively incorporate copyrighted third-party content into openly licensed educational materials. This capability addresses a fundamental paradox in open education: creating truly excellent, contextually rich educational resources often requires referencing, analyzing, or illustrating concepts using published works not originally created for educational purposes. Without fair use protection, educators would be constrained to using only materials explicitly licensed for open reuse—a significantly smaller pool that may not include the most pedagogically appropriate content.
The Code of Best Practices in Fair Use for Open Educational Resources, developed by the American University Center for Media & Social Impact and endorsed by major educational associations, provides a practical framework recognizing that “resource materials suited to the learning objectives of an OER may be incorporated in reliance on fair use” when the materials are properly contextualized and annotated. This framing acknowledges that scholarly analysis, critical discussion, and pedagogical integration of copyrighted materials constitute transformative uses that align with copyright law’s underlying purpose: promoting education and knowledge dissemination.
Consider two illustrative applications: (1) An OER history textbook can include a copyrighted photograph from the Civil Rights era, accompanied by detailed historical analysis and study questions that contextualize the image within broader historical narratives—a use that is transformative because it reframes the photograph from documentary artifact to pedagogical tool. (2) A biology educator can incorporate brief clips from commercial documentaries into an OER video explaining climate change, provided the clips are limited in duration and the educator’s new work adds independent educational value through narration, annotation, and synthesis of multiple sources.
Both examples benefit from fair use protection because they demonstrate transformative purpose (using materials for educational analysis rather than entertainment), appropriate scope (contextual integration rather than reproduction of entire works), and non-competitive effect (enriching educational access rather than substituting for original commercial products).
Accessibility and Compliance with Legal Obligations
Fair use serves an essential function in ensuring educational institutions can meet legal obligations to provide accessible materials for students with disabilities. Title II of the Americans with Disabilities Act and the Individuals with Disabilities Education Act establish that schools must provide educational content in accessible formats. However, the vast majority of published educational materials are not available in accessible formats such as large print, audio, braille, or digital text designed for screen readers.
The Chaffee Amendment (Section 121 of the Copyright Act) provides one mechanism for authorized entities to create accessible copies, but publishers have consistently argued that most educational institutions do not qualify as “authorized entities” under this provision. As a result, fair use becomes the critical legal tool enabling compliance with disability access mandates. The Second Circuit Court’s decision in Authors Guild v. HathiTrust (2014) explicitly affirmed that libraries can rely on fair use to justify digitizing works and providing full-text access and search functionality for people with disabilities.
This application of fair use exemplifies how the doctrine serves purposes beyond mere convenience: it operationalizes civil rights law by ensuring students with disabilities have substantively equal access to educational materials. OER creators who understand and exercise fair use rights can similarly create accessible versions of copyrighted works for inclusion in openly licensed materials, ensuring that accessibility concerns do not force pedagogically inferior choices.
Economic Impact and Student Affordability
Fair use supports OER adoption by enabling educators to create freely available alternatives to increasingly expensive commercial textbooks. U.S. textbook costs have risen 88% since 2006, far exceeding inflation rates. One study found that 65% of students chose not to purchase assigned textbooks due to cost, while 48% reported that textbook expenses influenced their course selection. Beyond immediate financial hardship, research demonstrates that high textbook costs negatively impact student learning outcomes and course completion rates.
By enabling educators to selectively incorporate existing copyrighted materials into OER—without requiring either permission or licensing fees—fair use reduces the barriers to creating high-quality, freely available alternatives. Institutions implementing OER initiatives have documented substantial cost savings: James Madison University, for example, saved students over $830,000 through OER adoption in 2023-24 alone.
Fair use is particularly valuable for this economic function because open licensing alternatives cannot satisfy all pedagogical needs. While Creative Commons-licensed materials provide a growing resource pool, no single licensing framework comprehensively covers all disciplinary content, current examples, or pedagogically diverse approaches that educators might incorporate. Fair use fills this gap by permitting educators to create compelling educational resources using a broader palette of source materials.
International Comparative Analysis
The significance of fair use for OER becomes apparent when comparing the U.S. framework to international copyright exceptions. While many countries recognize similar doctrines—Canada’s “fair dealing,” European “copyright exceptions,” and comparable provisions elsewhere—these frameworks are substantially narrower and more prescriptive than U.S. fair use.
Canadian fair dealing, added to the Copyright Act in 2012, explicitly includes “education” as a fair dealing purpose. However, fair dealing doctrine differs fundamentally from fair use: Canadian courts must apply the doctrine within narrowly defined categories (research, private study, education, parody, satire, criticism, news reporting), and the Supreme Court decision in the case of educational photocopying established that only “short excerpts” qualify. This more restrictive framework contrasts with U.S. fair use, which provides flexible factors applied case-by-case without categorical limitations.
The European Union’s approach is even more fragmented. EU law permits member states to create education exceptions, but implementation varies significantly—Estonia maintains broad exceptions while Austria’s are restrictive. This heterogeneity creates substantial challenges for international OER collaborations. When educators and institutions across borders collaborate to develop OER, they must navigate multiple legal systems and typically adopt the most restrictive framework to ensure compliance everywhere—a practice that effectively limits the openness of international OER projects.
This comparative context underscores fair use’s value: the doctrine provides educators with a relatively flexible, interpretable framework that acknowledges evolving pedagogical practices rather than encoding specific categories that may become outdated.
The Chilling Effect of Copyright Uncertainty
Despite fair use’s legal availability, evidence demonstrates that copyright anxiety creates a “chilling effect” that causes educators to underutilize the rights the doctrine provides. Research indicates that over 60% of educators refrain from using copyrighted materials in their teaching to avoid copyright problems, even when the intended use would likely qualify as fair use. In higher education specifically, more than 25% of respondents reported abandoning projects due to copyright-related anxiety.
This chilling effect substantially undermines educational goals because it causes educators to make pedagogically suboptimal choices. Rather than using the most appropriate copyrighted source material, educators select less effective alternatives licensed under open terms, or omit important content entirely. The cognitive and emotional labor of copyright anxiety diverts institutional resources from pedagogical planning and innovation toward compliance concerns.
Several factors contribute to this chilling effect. First, fair use interpretation is deliberately case-specific and contextual, with no bright-line rules or safe harbors that provide absolute certainty. Legal scholars emphasize that fair use “does not lend itself to bright-line legal tests” and instead requires “a reasoned and balanced application”. This interpretive flexibility, while enabling fair use doctrine to adapt to new technologies and pedagogical contexts, creates discomfort for institutional decision-makers and individual educators who prefer explicit guidance.
Second, institutional support structures significantly influence educator confidence. Research correlates formal copyright training or education with substantially increased understanding and confidence: educators who completed internal or external copyright workshops were two to three times more likely to understand fair dealing compared to those with no training. However, many institutions lack robust fair use education programs, leaving faculty uncertain of their rights.
Third, institutional administrators sometimes fail to support educators’ fair use determinations. Respondents reported scenarios where “university council disagreed with the librarian’s assessment of risk” or administrators refused to “back up” educators’ decisions related to copyright. This institutional hesitation undermines individual educator confidence and encourages conservative choices that don’t utilize available fair use protections.
Fair Use vs. Open Licensing: Complementary Frameworks
The relationship between fair use and Creative Commons (CC) licensing represents an important strategic consideration for OER creators. These frameworks are complementary rather than competitive: fair use is a legal doctrine that protects certain uses by default, while CC licenses are proactive permissions that creators grant upfront.
A fundamental principle, often misunderstood, is that CC licenses cannot restrict rights already protected by fair use or other copyright exceptions. A creator cannot use a CC license to prevent someone from quoting their work in criticism—that quote is protected by fair use regardless of license terms. Conversely, CC licenses expand the default permissions beyond what fair use might cover; a CC BY license explicitly permits commercial reuse and adaptation without requiring a transformative use analysis.
For OER development, the strategic question is whether to rely on fair use to incorporate copyrighted materials, or to seek out and use only CC-licensed content. Each approach has distinct advantages:
Fair Use Approach: Broader source material availability; permits incorporation of essential content not available under CC licenses; supports international educational collaboration with varying legal frameworks; enables educators to create more comprehensive OER without waiting for openly licensed alternatives.
Open Licensing Approach: Legal certainty—CC licenses explicitly state permissions without case-by-case analysis; global compatibility; encourages remix culture by explicitly permitting adaptation; future-proof permissions (granted for the life of copyright).
The most effective OER strategy combines both frameworks: use openly licensed content as the foundation where available, leveraging CC BY licenses for maximum adaptability and remix potential, but rely on fair use when necessary to incorporate specific copyrighted materials that no open alternative adequately addresses. This “open-first” approach maximizes both legal certainty and pedagogical quality.
Challenges and Emerging Issues
Despite fair use’s legal availability, OER creators and educators face several practical constraints in exercising fair use rights:
Quality and Consistency Concerns: While fair use enables incorporation of diverse source materials into OER, the quality of OER varies substantially. OER creators must balance the flexibility to adapt content with maintaining pedagogical rigor and curriculum alignment. Quality assurance frameworks are emerging but remain inconsistently applied across institutional contexts.
Accessibility from the Outset: Educators sometimes limit their use of copyrighted materials within OER because they fear that incorporating additional third-party content will complicate accessibility compliance. Rather than supporting accessibility goals, overly conservative interpretations of fair use can paradoxically undermine the objective of ensuring equal access for all learners.
International Collaboration Barriers: When educators collaborate across borders to develop OER, the absence of a global fair use doctrine requires adaptation to the most restrictive jurisdiction’s requirements. This effectively reduces the openness and adaptability of international OER projects.
Institutional Capacity: Smaller institutions and individual educators lack legal and technical resources to confidently assert fair use claims or create high-quality accessible OER incorporating copyrighted materials.
Institutional Best Practices and Policy Support
Institutions maximizing fair use’s benefits for OER development implement several key strategies:
Comprehensive Copyright Education: Institutions providing regular fair use training, workshops, and clear guidance documents (such as the Code of Best Practices in Fair Use for Open Educational Resources) substantially reduce copyright anxiety while increasing educator confidence in legitimate fair use claims.
Institutional Backing: Educational leaders who publicly support fair use determinations by faculty and librarians create institutional cultures where educators feel confident exercising their fair use rights. This backing signal is particularly important given that copyright law’s inherent interpretive uncertainty requires institutional resilience.
OER Policy Integration: Institutions pairing OER adoption initiatives with copyright education create coherent frameworks for faculty. Policies should recognize fair use as a legitimate strategy for OER creation while encouraging open-first approaches where available.
Accessibility-First Design: Rather than viewing fair use as an obstacle to accessibility, institutions should design OER development workflows where accessibility is integrated from creation’s beginning, reducing perceived tension between incorporating copyrighted materials and ensuring universal access.
Conclusion
Fair use represents far more than a technical legal doctrine; it is a foundational principle enabling educational institutions to fulfill their core missions of teaching, learning, and knowledge advancement. For open educational resources specifically, fair use provides educators with the flexibility to create high-quality, contextually responsive, and affordable alternatives to commercial educational materials while remaining legally defensible.
The doctrine’s significance derives from three primary functions: (1) enabling pedagogical innovation by permitting selective incorporation of copyrighted materials that may not be available under open licenses; (2) ensuring compliance with legal obligations to provide accessible materials for students with disabilities; and (3) supporting the economic objective of reducing educational costs by facilitating free, openly licensed alternatives to expensive commercial textbooks.
Yet fair use’s practical impact remains constrained by widespread copyright anxiety, institutional hesitancy, and uncertainty about the doctrine’s application. Addressing this gap requires multifaceted institutional support: comprehensive copyright education, clear guidance aligned with established best practices codes, institutional backing for fair use determinations, and policies explicitly recognizing fair use as a legitimate OER development strategy.
As educational technology evolves and the volume of copyrighted content accessible to educators expands, fair use becomes increasingly critical infrastructure for education. Educators, librarians, and institutional leaders should view fair use not as a risky alternative to be avoided, but as a deliberate statutory right designed precisely to protect the kinds of transformative, educational, and noncommercial uses that characterize high-quality open educational resource development.