A. Using inserts as objects of criticism and commentary

DESCRIPTION. OER, like all textbooks and educational materials, depend upon the inclusion of outside content to enable analysis, critique, and commentary. A textbook offering a survey of modern poetry will be more effective if its arguments about stylistic trends are supported by critical discussions of specific poems included for this purpose. In a film studies course, skills of close analysis are best taught by examining the construction of specific film clips from actual motion pictures, and students of media literacy cannot master the skills needed to assess the truth of claims of political advertising without real-world ads to practice on. All academic fields, including social science and STEM subjects, are replete with additional instances. Sometimes, OER authors will themselves be performing or modeling critique, while at others, they will be providing selected content with which students themselves can engage critically. Either way, OER will be most successful if the authors incorporate the most apposite words, pictures, sounds, etc., as objects of criticism and commentary – including those subject to copyright.

PRINCIPLE. Including inserts for critique and commentary represent non- controversial instances of fair use; if an OER is addressing a text, image, or other object directly – or inviting readers to do so – there is no equivalent pedagogical alternative to including that item. The Principle applies without regard to the medium in which the OER is expressed or the platform on which it is housed, and across the full range of source materials, subject to the following:

CONSIDERATIONS.

1. Fair use inserts for this purpose should generally be restricted to objects or source materials being directly examined. Where inserts are presented so that students can practice critical skills, the OER should also include appropriate guidance such as annotations or reflection questions.
2. The extent to which any insert is included on the basis of fair use should be quantitatively and qualitatively appropriate; thus, depending on the scope of the commentary or analysis, fair use might justify including a whole popular song but not an entire feature-length film if only a portion were being examined.
3. Where the use of multiple inserts in an OER (or a section of one) is pedagogically justified, the author should draw, where possible and appropriate, on a range of source works.
4. Attribution should be provided for fair use inserts, consistent with generally prevailing standards in the discipline; ethical practice also provides students with a good model for their own use.

HARD CASES. While there was broad agreement about the appropriateness of including individual inserts when the narrative of a textbook relates specifically to them and is enriched by them, questions remained about when and how fair use could be employed to create a freestanding OER anthology – for example, a selection of poems for use in contemporary literature courses. Although this might sometimes be accomplished in line with the Principle and Considerations discussed above, depending (among other things) on how much of critical context the collection includes, projects of this type may require individualized legal guidance to evaluate specific cases.

B. Including inserts for the purpose of illustration

DESCRIPTION. Inserts from various sources and media are regularly incorporated into teaching materials for illustrative use, to anchor what is being taught in tangible examples. A lab photograph may engage the attention of a class studying a classic experiment, just as an iconic news image may galvanize students’ interest in the 1960’s Civil Rights Movement, or clips from a series of Hollywood movies can support an educator’s generalizations about how cultural attitudes toward working women have changed over decades. In these instances (and others including quotations from scholarly articles, literary epigraphs, scientific drawings, and many more), the function of the inserts is to reinforce and enrich the pedagogical narrative of teaching materials rather than to function as objects of critique. Such illustrative uses represent the most common category of inserts used in all teaching materials (including OER) and are effectively indispensable to both instructional practice and learning. Typically, illustrative inserts were originally created in non-educational use contexts such as journalism, entertainment, or scientific documentation. Moreover, their learning value is closely associated with their authenticity, so they cannot be effectively “recreated.”

PRINCIPLE. For the purpose of illustration, fair use supports the incorporation of thoughtfully selected inserts in all subject matter areas, derived from a full range of sources and media, subject to the following:

CONSIDERATIONS.

1. When relying on fair use, authors should be prepared to explain the intended significance of an illustrative insert in the context of the OER where it appears; such significance may relate to what the insert depicts or describes, to its relationship to the text, or to the characteristics of the insert itself.
2. Likewise, authors should avoid uses that are exclusively or primarily decorative and do not substantially enrich the pedagogical purpose and narrative of teaching materials.
3. The extent to which any insert is included on the basis of fair use should be quantitatively and qualitatively appropriate in light of its pedagogical relevance; thus, illustrative fair use might justify including an entire photograph, but only a selected segment of a motion picture.
4. In relying on fair use for illustrative inserts, it is important to (i) select illustrations to avoid repetition or redundancy, and (ii) draw or rely, where possible, on a range of source works.
5. Authors of OER should be aware that some texts and images may be free to incorporate because they are subject to limits on copyright protection for factual content.
6. Attribution should be provided for fair use inserts, as discussed above.

HARD CASES. Members of the OER community pointed out that there are many ways in which visual, textual, or musical illustrations can support pedagogy, some quite literal and others more oblique. Thus, the use of epigraphs is a well-established fair use practice, but introducing chapters in a history text with photos of adorable (but otherwise unrelated) photographs of baby animals might be a step too far. And practices that might pass muster in a classroom setting (such as the use of topical cartoons to begin a class period) may be harder to justify in an OER context. As always, the question is one of “nexus” – that is, how persuasive an argument can be made that the insert in question is serving (even indirectly) an identifiable pedagogical purpose.

C. Incorporating content as learning resource materials

DESCRIPTION. Across disciplines, students often engage with content to build analytical skills, familiarity, or fluency; this practice-based learning is greatly enhanced if those resource materials accurately reflect what they will encounter outside of the classroom. In a beginning Spanish class, students may be exposed to selected episodes of popular TV shows to better understand how native speakers employ the language, while in an intermediate course they may benefit from being guided through readings of selected short fiction. Likewise, a political science course may be enriched if students are exposed to the ways theoretical issues are mirrored in newspaper editorials and op-eds. By their nature, inserts of this kind are likely to be protected by copyright. When they are included in primary or secondary learning materials (including textbooks and workbooks), the intended purpose is neither enabling critique nor providing illustration, strictly speaking, but promoting mastery – by supplying students with essential opportunities to practice their skills and deepen their insights. Sometimes the materials chosen for this purpose are ephemeral in nature, and sometimes they possess more enduring value; however, these materials were created for purposes other than educational use. They often are materials which students would not otherwise have encountered, and they always should be contextualized to enhance their value as learning resources.

PRINCIPLE. Resource materials suited to the learning objectives of an OER may be incorporated in reliance on fair use, subject to the following:

CONSIDERATIONS.

1. Resource materials incorporated on the basis of fair use should include or reference whatever newly authored contextual materials are required to make them accessible and available to students, and (as appropriate) to direct students’ use of them, including glossaries, annotations, study questions, etc.
2. Although popular appeal may be a factor in the selection of resource materials, authors should be prepared to explain the pedagogical value of each selection beyond its mere entertainment or informational content.
3. The extent to which any insert included on the basis of fair use should be quantitatively and qualitatively appropriate; thus, fair use might justify incorporating an entire short article or story for reflection or response, but not a longer text when students are only expected to engage with a portion.
4. Wherever possible, resource materials should be derived directly from primary sources, rather than from versions that have been edited or simplified for educational purposes.
5. When consistent with pedagogical objectives, the various resource materials incorporated in a particular OER should be derived from a range of sources, rather than from only a few.
6. Attribution should be provided for fair use inserts, as discussed above.

HARD CASES. Although using items of “high value” contemporary popular culture is often permitted for purposes of critique or illustration, members of the OER community voiced hesitation about using them in their entirety (music videos, for example) as resource materials for a more generalized educational purpose. This concern stemmed in part from a perception that these high-profile inclusions were more likely to be challenged, and that it might be difficult to enunciate the pedagogical considerations which were predominant in their selection. OER authors who wish to include materials of this kind should be especially well-prepared to explain their reasons for doing so.

D. Repurposing pedagogical content from existing educational materials

DESCRIPTION. Making OER is hard as well as valuable work, and there is little reason to force those who do it to engage in unnecessary reinvention for its own sake. Authors of new OER sometimes want to draw on existing educational materials, and there are a set of considerations in copyright law that allow them to do so in certain cases. Sometimes the source materials were never intended for use as course materials, and these instances can be analyzed in terms of transformative fair use; for example, a nursing program preparing students to interpret patient monitoring systems seeking to illustrate its teaching materials with excerpts from manufacturers’ operating manuals – works originally prepared for a substantially different audience. Other potential source works that were intended for educational purposes have outlived their useful commercial lives but remain protected under copyright law. Here, fair use factors such as the amount of copyrighted material involved and the impact on the market for the original work may come into prominent play. Authors of a new OER biology textbook may want to reproduce the structure of a once-popular predecessor’s chapter on cell-level metabolism, along with only a few specifics of the discussion itself. Or the author of an OER general math book may want to borrow and modify a problem set from an out-of-print algebra text. In each example, the amount of protected material actually involved may be quite limited (after considering the non-copyrightable material), and the risk of economic harm to the copyright owner is somewhat speculative.

PRINCIPLE. Fair use supports the selective incorporation of elements from sources which are not currently in wide use as course materials, subject to the following:

CONSIDERATIONS.

1. Fair use analysis should begin with a consideration of what parts of the source material copyright actually protects; there are many types of factual content not protected by copyright, as discussed further in Appendix 5.
2. As previously explained, the subject matter, general organization, and broad choices about coverage reflected in existing learning materials – including those that remain popular – are beyond the reach of copyright protection, and so OER makers can reuse them without needing to undertake a fair use analysis.
3. Likewise, OER makers should recognize that the use of short snippets of text from copyrighted sources may be permissible not just as fair use, but also as de minimis quotations.
4. If relying on fair use for more extensive borrowings, OER authors should be prepared to explain the specific teaching or learning value of each incorporated item and why it represents the best choice for the intended purpose; justify the extent of the material incorporated in pedagogical terms; and specify in what ways, if any, the material was updated.
5. A user should be prepared to explain why their OER does not function as a market substitute (either because there is currently no market, or because the incorporated work was or is intended for a different audience than the OER).
6. When possible and as pedagogically appropriate, OER authors incorporating inserts from superseded educational materials should diversify the range of source works.
7. Attribution should be provided for all inserts, a consideration which is of special importance in cases where inserted text may be confused with newly authored text.

HARD CASES: This Principle reflects the fact that even uses that are only modestly transformative can be deemed fair – if they don’t undercut the market for the original. Therefore, if there is a straightforward licensing mechanism for licensing protected bits and pieces of a legacy textbook, that fact may weigh against fair use. Often, however, it is difficult or impossible to negotiate licenses to permit the incorporation of elements from such materials into new OER materials – or even to identify the rightsholder who has the authority to grant such a license. Here, the same rationale that may justify the reprinting of so-called “orphan works” could come into play in support of the OER maker.

Signaling Fair Use

The OER community is characterized by its commitment to assuring that adoption and adaptation of OER should be as straightforward and transparent as possible. As a result, members of that community emphasized that when inserts in materials are included in reliance on fair use, a clear acknowledgement of this fact would be a “best practice.” This will enable subsequent adopters and adapters in similar pedagogical settings to understand and extend the original authors’ fair use choices. For example, the fair use rationale for using an illustration from a famous experiment doesn’t change when a high-school teacher simplifies an open college-level text about cell biology to a grade-appropriate level. In the shared enterprise of creating, using, and adapting OER, although fair use is a right of individuals, the values of the OER community create a rich environment to communicate the doctrine’s potential for increasing the type and quality of teaching and learning materials.

But what form should such an acknowledgement take, and how can it be accomplished without creating substantial new burdens on OER authors? Based on our discussions with OER practitioners, we can recommend at least three alternatives:

1. Indirect acknowledgement. It is already a best practice to label individual inserts that are included pursuant to licenses (as is required by the attribution clause in Creative Commons licenses). It also is desirable (and relatively straightforward) to mark “public domain” inserts as such. Reliance on fair use could then be signaled by way of a notice in the front matter of the OER to the effect that “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.”
2. Direct acknowledgement. Where OER authors are in doubt about whether the indirect approach will be enough to put downstream adopters and adapters on notice, they could label inserts included on the basis of fair use affirmatively, either with a short narrative text (e.g., “this illustration, from [SOURCE] is included on the basis of fair use”) or a conventional symbol (e.g., [F in a circle]).
3. Hybrid acknowledgement. In this mode, OER authors could use indirect acknowledgement in general, while singling out individual items as to which adopters and adapters might benefit from a more specific notice, perhaps including some indication of the fair use rationale involved, perhaps by reference to the categories of fair uses presented in this Best Practices document.

The choice of a particular form of acknowledgement will depend on the institutional setting, the extent of reliance on fair use in the particular OER, and other considerations. Crucially, however, any of these options would achieve the basic notice function – which the OER community believes will be important as reliance on fair use increases. While it is often useful for authors to maintain their own records of their fair use reasoning, it is not generally necessary to communicate this in the OER itself, beyond clearly indicating which materials were original, and which were incorporated. Participants pointed out that an interested adopter or adapter could – in any event – request additional information from the maker of the OER materials.