Open Educational Resources and Fair Use

Educators, librarians, and institutions have invested in the creation of openly licensed, freely distributed open educational resources (OER) to advance a wide range of goals within the educational system. Open educational resources enable flexible and open pedagogy; increase access to authorship and facilitate representation of different student experiences; and increase equity by reducing the barriers of cost in accessing high-quality learning materials. OER exist for all levels of education, from primary to postsecondary, and across disciplines. Creators and users of OER are often motivated by a shared commitment to increase access to materials and to contribute to the common good.

However, to meet the full pedagogical, pragmatic, and social functions of those teaching and learning materials, educators must have the ability to incorporate and reference existing copyrighted content, both historical and contemporary. Uncertainty about the copyright rules that govern these incorporations can warp both what subjects are covered in open educational resources and how those subjects are taught. Fortunately, such uncertainty is not inevitable, and OER makers already have the professional skills and pedagogical judgement they need to make good copyright choices. Indeed, 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.

The fair use doctrine in United States copyright law enables incorporation of a wide range of copyrighted inserts into OER for common teaching and learning purposes. This Code follows on the experience and expertise with community-authored codes of best practices for groups such as documentary filmmakers, art educators, media literacy teachers, and academic and research librarians, which have provided those practitioners with clear, well-documented, and reliable ways to evaluate fair use. National copyright law in many other countries also recognizes these interests, as discussed in Appendix Four.

Fair use enables the creation of new and different OER – resilient materials that give educators the control and flexibility to meet the needs of their students and the pedagogical goals of their courses. In competition with this vision, subscription- based, one-size-fits-all, and time-limited models restrict the ability of educators to adapt their materials to their students’ needs and experiences, while imposing inflexible demands on limited budgets. Educators must also be able to modify and adapt materials to fully meet the needs of all learners, including students with disabilities, marginalized students, and students facing emergent situations, such as disaster or dislocation. Educators should not be constrained to only what commercial publishers choose to offer and the formats they choose to offer it in. When OER authors are able to understand and rely on fair use, it allows them to create materials that are compelling, impactful, and adaptable.

This Code is a tool for educators, librarians, and authors to evaluate common professional scenarios in which fair use can enable them to incorporate inserts, including those protected by copyright, to create OER. It can provide groups working on OER projects with a shared framework for evaluating and understanding when and how to incorporate existing content to meet pedagogical needs.

Open Educational Resources, Inserts, and Universal Access

At the outset of this project, we spoke to a broad cross section of OER professionals (authors, advisers, librarians, instructional designers, publishers, network organizers, adopters, and more). Some of the findings from those conversations are summarized in Appendix One. Four core conclusions were shared among participants:

• The strategic use of selections from preexisting copyrighted materials – what we call “inserts” in this document – can provide crucial support for pedagogical goals by making OER clearer, more engaging, and more persuasive;
• The use of appropriate inserts can also help make OER more accessible to learners with varying backgrounds, circumstances, and abilities;
• To date, many OER makers have felt constrained to use only Creative Commons-licensed inserts in most cases. However, the kind and range of materials that are available on this basis means that their choices often fall short of fulfilling their pedagogical goals;
• Concerns about copyright compliance limit the effectiveness with which OER makers actually employ inserts by slowing down new projects and by driving practices, such as linking out to sources rather than incorporating them, that reduce the effectiveness and durability of OER. These choices pose particular risks to students with disabilities and students who face other access barriers.

In effect, uncertainty or even misunderstanding about how copyright operates in the domain of educational practice is contributing to suboptimal choices about using textual, visual, audio, and other inserts to improve the quality and reach of OER. As a result, OER makers report feeling faced an unpalatable range of choices where a potential insert is concerned: to leave it out altogether, to substitute a less pedagogically satisfactory alternative, or to invoke it without actually incorporating it – typically by linking to an online location where it can be found on a proprietary website or social media platform, which generally is perceived as a “safer,” if unreliable and potentially costly, work-around.

There are obvious practical reasons to prefer incorporating inserts over linking out – links can change or break, and sometimes they take students to unintended places. But there are principled ones as well. A clear finding from our interviews was that the OER community is strongly committed to principles of accessibility, both in the strict legal sense of the term, and more broadly. Making OER accessible to students with impaired vision, hearing, or physical mobility is both a formal necessity and a pedagogical opportunity – and it is not adequately met by reliance on linking.

Schools and institutions of higher education have legal and ethical obligations to make resources universally accessible to their communities. Such access reflects educational values and is necessary in order to comply with long-standing legal requirements such as the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. In cases, such as Authors Guild, Inc. v. HathiTrust, courts have strongly affirmed that fair use is an important tool to address accessibility issues, including access by the print disabled to digitized works in a full text database. In sum, fair use can help educational institutions to comply with state and federal disability laws, while also fulfilling their broader missions.

Moreover, schools and institutions increasingly express broader commitments to the principle of accessibility, through ensuring that students with varying life situations and backgrounds have full access to learning opportunities. The theory of “universal design” teaches that when objects of any kind – from chairs to textbooks – are engineered to reach people with accessibility needs, the result is frequently that they become more useful to others, as well. During the COVID-19 pandemic, we became more acutely aware of how self-contained teaching materials available in portable off-line formats (digital or analog) can help overcome barriers to effective distributed learning, including the lack of digital devices or reliable high-speed internet connections. All the more reason, then, to seek greater clarity about how the copyright fair use doctrine can apply to OER inserts.

The OER movement represents a bold and important experiment that faces many challenges. It is inevitable and appropriate that the members of OER community should feel protective of their individual projects and the movement in general, and that this protectiveness may sometimes take the form of risk aversion where “difficult” issues like copyright are concerned. And, of course, there may sometimes be good prudential reasons for OER makers to forgo exercising their fair use rights. But before weighing the benefits of risk avoidance against the costs – which include shortchanging the core mission of making the best possible OER available to the widest possible range of learners – it is important to know what those rights are!

Behind the Code: Copyright Flexibilities and Fair Use in OER

The good news for OER is that intellectual property law, and copyright in particular, operate as less of a meaningful constraint on otherwise sound pedagogical practice than is generally understood. This is because the rights enjoyed by intellectual property owners are limited, by design, when compared (for example) with property rights in real estate or tangible goods. This, in turn, reflects the fact that where the calibration of intellectual property rights is concerned, policymakers recognize that there are various interests at stake – especially those of information consumers (including teachers and learners). Indeed, it is the public interest in the spread of knowledge that the Constitution identifies as the primary rationale for copyright.

Appendix Five of this Code goes into some detail about various copyright principles that favor broad dissemination of information. Among them are the “idea/expression” distinction and the related “merger” doctrine, which have the effect of assuring that “ideas” (i.e., the facts, theories, and concepts embodied in copyrighted materials) are always available for reuse, and that sometimes (when there are only a few good ways of making a point in words or images), the way those ideas have been expressed is also free for the taking. One consequence is that the real extent of copyright protection for information-heavy objects (such as a chronological account of a historical event or a table capturing observed data values) is considered “thin” at best, and therefore doesn’t significantly constrain educational reuse. Also reflecting the public interest in access to information is the copyright carve-out for “de minimis use,” which applies to small borrowings of protected material.

The Copyright Act also provides “safe harbors” for some educational uses in Secs. 110(1) and (2). But because these two sections focus on real-time teaching (in both physical and virtual settings), they don’t generally apply to the creation of educational materials as such. On the other hand, neither does the presence of these narrow “specific exceptions” limit the potential reach of the broad, general “fair use” right found in Sec. 107 of the statute – which is by far the most important copyright doctrine operating in favor of OER authors and distributors.

Appendix Two describes the state of fair use law at greater length, but at the outset a few points are worth emphasizing:

• The development of fair use in the U.S. courts over the last 25 years has been rapid and highly positive, and a doctrine that once promised more than it actually offered has been remade as a reliable source of support for an expansive list of artistic and practical undertakings that depend for success on reasonable levels of access to preexisting copyrighted content for use in new contexts.
• The list of activities supported by fair use definitely includes education, as one would expect of a doctrine that exists to help fulfill the constitutional mission of copyright: to promote cultural and scientific flourishing. By the same token, however, not all educational uses are necessarily fair – duplicating entire commercially available textbooks or review materials to distribute to students definitely wouldn’t qualify, for example.
• This is because contemporary fair use doctrine is frequently keyed to the question of “transformative” purpose: does an unlicensed use of copyrighted material have a goal and an audience different from those for which the material originally was created? The inquiry into transformativeness isn’t the only relevant one – it also matters, for example, whether the amount of material being used is contextually appropriate – but it is the invariable point of departure.
• Importantly, the fair use doctrine also works to uphold and fulfill guarantees of equal access to knowledge for those with disabilities, complementing a range of other state and federal laws.
• Fair use is a “unified field theory” in at least two important respects. First, the same analytic approach applies regardless of the setting in which the use occurs, so we can generalize from decisions about (for example) filmmaking to situations involving education; second, fair use applies similarly to all kinds of copyrighted content – text, image, audiovisual works, music, and the like. This helps make fair use a predictable, reliable tool for creators of all kinds.

Applying This Code

Educators can apply fair use confidently within a consistent legal framework in the repeated professional situations they encounter while authoring, adapting, and adopting open educational resources. The Code describes an approach to reasoning about the application of fair use to issues both familiar and emergent. It does not provide rules of thumb, bright-line rules, or other decision-making shortcuts. For instance, the Code does not (and could not) prescribe what percentage of a work or word count is permissible to include. Rather it lays out an analytical framework to understand how much of a work, up to or including the whole, is appropriate for a specific purpose, in light of the user’s professional goals and other considerations.

Likewise, the Code refers users to generally applicable professional standards, which, in turn, may evolve over time. This is the case, for example, where it invokes the concept of “appropriate attribution” (which might include information about the title, creator, date, publisher, and other characteristics of a work), the scope of which may differ according to the relevant discipline, the nature of the incorporated material, and other context.

Throughout, the Code employs the term “inserts” to refer broadly to the full range of material from third-party sources that educators may wish to incorporate into OER. As the Code itself stresses, these can be of any kind (texts, images, moving images, music, other sounds, computer code, etc.). The reasoning process described here applies equally without regard to the type of inserts involved, or the media in which the OER is distributed.

Fair use is a right. But there may be times when – in the interests signaling support for open resources – an OER author who could make fair use of a particular copyrighted insert to illustrate a point might prefer to use an equally effective one that is in the public domain or is covered by an open license. But there is no legal obligation to do so and no author should ever 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.

It is important to emphasize that decisions about whether to utilize the Principles of the Code are not affected or limited by the possibility that others may make further uses of the copyrighted material in question. As the law has been interpreted, such “downstream” uses do not give rise to legal liability on the part of educators who themselves have relied appropriately on fair use in making the material available and are not promoting or actively aware of widespread misuse of it by others.

Although the Code has been drafted with a particular emphasis on the creators of OER, its Principles apply with equal force to educators who adopt and adapt existing OER to serve new or additional audiences of learners. Thus, for example, an adapter who wants to add or substitute illustrative inserts in a college-level OER to make a better connection with mature students in lifelong-learning programs can take advantage of the Code’s guidance on how to accomplish this.

The Code that follows states four consensus “Principles” that reflect best practices by members of the OER community in applying fair use in certain repeated scenarios. Each of the Principles is given shape by its associated contextual “Considerations,” which are integral to application of the Principle. Each Principle is also accompanied by a brief description of “Hard Cases,” which reflect agreement about some situations in which educators relying on fair use should exercise special care. Some situations can be analyzed under more than one of the headings that follow, and indeed inserts that are embedded into OER may serve multiple teaching purposes. Further, the Code includes only Principles and Considerations about which there was near-universal consensus. As a result, these Principles do not necessarily exhaust what is permissible.

More specifically, the Code does not describe all the situations in which fair use might be available to members of the OER community. Rather, it addresses only the most common situations that members of the community encounter. By the same token, the Code’s Principles and Considerations are subject to interpretation, and we expect that members of the community will apply and adapt the approaches outlined in the Code to new situations as they arise.

Finally, just as this Code is not exhaustive, it is also not mandatory. For reasons of relationships, risk management, or other considerations, authors and institutions may choose not to claim the full scope of their rights. However, before such risk management decisions are made, it is useful and important to know what those rights are, as a baseline.