Open Educational Resources (OER) are broadly defined as teaching, learning and research materials in any medium – digital or otherwise – that are in the public domain or have been released under an open license that permits no-cost access, use, adaptation and redistribution by others with no or limited restrictions. While many similar definitions of OER exist, UNESCO states “OER typically encompass free, online learning content, software tools, and accumulated digital curricula that are not restricted by copyright license and available to retain, reuse, revise, remix, and redistribute.” They have been shown to improve student performance, pace to graduation, and to reduce barriers that particularly impact the most vulnerable students including first-generation, Pell eligible, and students of color.

Over five months in late 2019 and early 2020, our team (Meredith Jacob, Peter Jaszi, Prue Adler, Will Cross and Jeselene Andrade) interviewed approximately 25 people involved in the making and dissemination of OER in both K-12 and higher education. These hour-long interviews, which were conducted under conditions of strict confidentiality, were carefully structured and wide-ranging. We wanted to investigate (1) how well the community understood the relevance of copyright law in the production and adoption of OER, (2) if they perceived it as a significant constraint on their practice, and (3) whether an improved understanding might benefit the OER movement.

When we began our interviews, some members of our team brought more experience with OER communities and practices, while others had a broader background in fair use as applied in library and education settings. These different perspectives allowed us to ask some very basic questions, as well as to pursue more detailed lines of inquiry. Here are some highlights of what we found:

• Makers and distributors of OER form a close-knit and highly motivated sharing community, and are collectively motivated by an idealistic vision of how education at all levels would benefit from the available of low-cost, high- quality, customizable learning materials embodying the principle of universal design as an alternative to commercial textbooks, worksheets, assessment materials, etc.
• From its inception, the OER movement has had at least four major goals:
  • Providing comprehensive, up-to-date, free and low-cost learning materials for all learners;
  • Supporting teachers at all levels of professional development, working in a range of instructional environments;
  • Assuring that learning materials can be readily adapted to meet students where they are, with respect to accessibility, cultural appropriateness, etc.; and
  • Enabling a range of educational practices that reliance on commercial textbooks (print or electronic) may serve to inhibit.
• In general, those active in the movement believe that OER have the capacity to help engage a diverse range of learners more actively and creatively in their own development as independent thinkers and competent participants in civil society.
• Although OER materials should be free to use, they are not free to develop or distribute. Most people who aspire to create OER will need to receive some form of support or compensation (in money or in kind) for their work, and the associated costs of production are themselves non-trivial.
• The internal challenge to the OER movement is twofold: (1) to persuade the educational establishment of the efficacy of its model, and (2) to attract sustainable financial support to defray the real costs associated with it.
• Positive teacher and student experiences with OER are gradually helping to spur adoption and creation, although the process is ongoing. Where financial sustainability is concerned, school systems and educational institutions have recognized the contribution that OER can make toward realizing the goal of “zero textbook cost” (ZTC), and have been willing to provide limited support on that basis.
• In general, however, the other benefits of OER have not been “costed in” to the levels of support its creation and dissemination are receiving.
• The external challenge now facing the OER movement is competition from for-profit vendors, more of whom are moving into this space with products that are being advertised as more cost-effective and more flexible than traditional print but also more “polished” (and superficially more teacher- and student-friendly) than OER. In the past two years this challenge has been exemplified by digital automatic billing programs often marketed as “all-in” or “inclusive access.”
• The shortcomings of these “all-inclusive” products are clear, when contrasted with high quality OER, but so is their appeal.
• One source of that appeal is that their producers are budgeted to license or commission attractive and appropriate textual, graphic, and audiovisual inserts. Like most commercial publishers, these producers also generally have internal procedures for relying on fair use for incorporating third-party content when developing their own materials.

It is likely that the winners and losers in the contest between open and closed models will be determined in the next decade. So, for proponents of OER, there is no time to lose in making their products as appealing and effective as possible.

Which brings us back to the OER-copyright connection, where we should begin by noting that it is a truism that educational practice occupies a highly privileged location in the increasingly well-mapped landscape of copyright fair use. Explicitly identified as an area of special attention in Sec. 107 of the Copyright Act, educational practice frequently represents a straightforward instance of “transformative and non-substitutional” use, to invoke two of the touch phrases in contemporary fair use case law. This is as true of fair uses in making (and using) OER as it is in any other domain of education.

The rationale for relying on fair use as appropriate in producing OER is straightforward enough. Although openly licensed (and to a less extent) public domain sources may sometimes suffice, incorporating the most apt illustrations, reference texts, and other inserts often will mean choosing excerpts from copyrighted works. It’s hard to imagine a class on American poetry taught from materials that don’t incorporate twentieth century poems by well-known writers, an effective media literacy lesson that doesn’t refer to real-world examples of news, commercials, and political ads, or a college-level science textbook that doesn’t include text or figures from significant research publications. Hence, the importance of fair use.

Nevertheless, we came away from our interviews with one overarching conclusion. Most professionals who work with OER often avoid relying on fair use in developing and deploying these learning materials despite recognizing that fair use could enhance their efforts. Participants cited various reasons: uncertainty about the doctrine, concerns about professional responsibility, and doubt about institutional support. they were anxious about perceived uncertainty and felt little institutional support for doing so. We identified different explanations for and implementations of this general policy of avoidance – and, even, in some cases, identified exceptions to it.

We also learned that while some professionals embrace this state of affairs, many more are (to various degrees) dissatisfied with it. They recognize that, in an uncertain and highly competitive environment, they are being called to do important work with limited resources, and that while some of those limitations may be unavoidable, others – like the effective prohibition on exercising fair use – are wholly artificial and largely self-imposed.

Several factors appear to help explain the existence of this anomalous situation:

• OER professionals experience a dearth of reliable information about copyright in general and fair use in particular. Few have access to specialized legal advice about their projects, and their default is to rely on informal (often online) sources, most out-of-date and inaccurate, and some of them little better than “urban folklore.” Too many sources of information about which the educational community relies on for information about fair use are outdated and overly conservative, thus failing to represent the full scope of the doctrine as it stands today. When these sources do address fair use, they tend to portray it as indeterminate and uncertain – whereas in fact it is both predictable and reliable.
• Specifically within the OER subsection of the educational community, this problem is exacerbated by the fact that trusted guidance documents designed to introduce the OER process to new authors contain statements about copyright and fair use which are not only negatively biased but also significantly inaccurate.
• As a result, members of the OER community share an exaggeratedly heightened sense of risk – both financial and reputational – around fair use. They are aware of a small universe of situations – none of which are analogous to their own – in which individuals (i.e., the defendants in the file-sharing cases of twenty years ago) or school systems (such as, recently and spectacularly, the Houston Independent School District) have paid settlement costs, or even substantial damages. But they often fail to recognize that those cases represented not failed good faith reliance on fair use but out-and-out unjustified infringement.
• Because they understand that fair use determinations are made case-by-case, taking account of the context, many professionals believe that authors of OER relying on fair use would do a disservice to “downstream” users who adapt the materials for use by students with different profiles and different needs, perhaps especially for downstream users in different jurisdictions. Unlike openly licensed inserts, the reasoning goes, those included on the basis of fair use may turn out to be legally unavailable to adopters and adapters – thus undermining the promise of reproducibility and modifiability to which the movement for “open information” in general is devoted. This is a significant concern, but (again) one based on a misunderstanding of underlying copyright principles. Precisely because fair use determinations are contextual, the same outcome is likely where the same material is used in the same or a similar context. Thus, the fair use status of an exemplary news story included in an AP history curriculum for high schoolers will not change because the lesson is transplanted (perhaps in simplified form) to a middle school government course or recast in simplified form for English Language Learners.
• Members of the OER community, like all educators, aspire to model good practice and behavior for their students. To the extent that they perceive relying on fair use as something suspect or even transgressive – as, in other words, “getting away with” something by cutting corners – they naturally recoil from it. Again, the reaction is based on a misapprehension exacerbated by inaccurate or unsophisticated legal advice. In fact, as the Congress and courts have made clear, fair use is not a breach of copyright etiquette but a user’s “right.” Instead of derogating from the purpose of the copyright system – the promotion of shared knowledge – fair use is designed to promote it.
• The final straw, as it were, is that many (if not most) aggregators and publishers of OER operate under formal policies categorically barring materials that rely on fair use from their platforms or catalogues. While many institutions informally allow noncontroversial fair uses, such as short quotations, they feel that they have no meaningful way to responsibly evaluate or provide guidance about when fair use is acceptable and low-risk.

Because fair use is undervalued or stigmatized, various work-arounds for incorporating copyrighted materials into OER have arisen, including relying on inserts from institutionally licensed digital collections and linking out to copyrighted materials available on the open web. Both tactics have shortcomings that threaten both the value and the reach of OER that rely on them. The coverage of institutional subscriptions differs from place to place, and (in any one place) from time to time. And links can break, or direct students to content that is both distracting and (as in the case of embedded advertising) beyond what teaching institutions wish to promote.

Even more to the point, linked text, video, etc., often is presented in forms that are inaccessible to students with disabilities, as well as those who do not have reliable or consistent access to high band-width internet. It was clear that OER authors and providers experienced tension between their commitment to providing inclusive and equitable access to all materials (including supplemental materials) for all students, including those with disabilities, and their fear of the consequences of copyright law.

In addition, only a fair use-based approach to incorporating inserts into OER can guarantee that the materials in question can be produced and delivered in whatever format (streaming access, digital storage media, paper copies, etc.) students require. Experience in the COVID-19 pandemic emergency is a reminder that if OER is to achieve its objectives, learning materials must be robust and versatile. Materials built by relying on fair use (as well as openly licensed and public domain sources) have this potential; those which rely on work-arounds do not.

Finally, we note that the ability of the OER movement to fulfill its promise is further threatened by another strain in the discourse of the field around copyright. Not only are OER authors being warned about including fair use content in their materials, but adopters are being cautioned against using non-licensed copyrighted inserts when they localize OER for their areas or their classrooms. As already noted, adaptability is a key advantage of OER over commercial learning materials. However, teachers’ and learners’ ability to make best use of OER inevitably will be compromised by draconian (and entirely unnecessary) restrictions about how they should go about revising and remixing them.

To sum up: many OER veterans and newcomers are frustrated by the current situation not only because it makes their work harder, slower, and less satisfying. They recognize that efforts to encourage the adoption of OER in the place of commercial materials will suffer – perhaps fatally – as a result. More fundamentally, they perceive a tension between the OER field’s ingrained hesitance about explicitly relying on fair use and the accomplishment of its core mission. The tension is real, and efforts to resolve it are not only overdue but urgent.