OER - Open Educational Resources: Fair Use
Meet The Code!
The Code of Best Practices in Fair Use for OER, or "The Code" for short, is a comprehensive and optimistic guide for anybody creating and adapting OER. The Code was published in 2021 and was written by legal scholars and librarians. It provides a rigorous and sensible framework for understanding the boundaries of Fair Use.
The information on this page is meant to tease out the way The Code answers common questions and problems related to Fair Use and OER. For more info and context, please see the full text. Unless otherwise noted, all quoted material on this page is from The Code.
Good News about Fair Use and OER
If you have made tradeoffs in what you include in your OER for fear of running afoul of Fair Use guidelines, this Code of Best Practices in Fair Use for OER is chock full of great news. Written with a rare voice of optimism, the authors assert that instructors can worry less and use the resources that are the best fit for their educational purposes. Far from a call to throw Fair Use out, the Code is a well-reasoned and empowering framework for using the best resources available in an appropriate and thoughtful way, and in full accordance with Fair Use principles.
Read the Code of Best Practices in Fair Use for OER
Check out Open Oregon’s advice for OER based on the principles found in the Code
Continuing with the optimism, consider these two ways the authors of The Code encourage educators to think about incorporating copyrighted into OER:
While Fair Use does not provide a free pass, educators are well supported by Fair Use for the thoughtful and pedagogically appropriate inclusion of all manner of third party content. (25)
There are very few legal cases that include challenges to educational use of inserts: the “highly privileged” role of education makes it undesirable for courts to hear cases from copyright holders regarding educational use. (25)
General Principles from The Code
Below are some basic principles distilled from The Code of Best Practices in Fair Use for OER. All page numbers refer to The Code, which also contains more context and useful examples.
Note that The Code uses the word "inserts" to indicate a variety of third party content that you may want to include in your OER. Includes music, images, text, audiovisual material, etc.
Fair Use is consistent and predictable: it is not an arbitrary practice, but one that should be applied similarly in all cases, regardless of the type of content being used. (28-29)
Use the good stuff! Selecting and including high quality images and other inserts in the text of OER is often better pedagogically and makes OER more accessible and engaging. (6)
Including inserts in the OER--rather than linking out to them--makes them more portable and usable, which increases access and accessibility (6)
Educators should consider the extent of the educational use, and use an excerpt, clip, or single image instead of entire works when appropriate and without sacrificing the pedagogical goal.
If you want to use a full motion picture, exercise caution: Fair Use does not always extend to the full duplication of longer works such as motion pictures. (13, 14)
The "Fair Use Narrative" matters: Educators should be prepared to make a case for why an insert has been included, regardless of whether the pedagogical purpose is indirect. (28)
"Good Faith" matters: if educators are acting in good faith, courts, lawyers and litigants consider it in their calculation of harm. (28)
Images and Fair Use
Confused about how to use images in your OER? You’re not alone! Generally speaking, the use of thoughtfully chosen images to illustrate points made in your text is protected under Fair Use. This includes images that are typically created for non-educational purposes, such as journalism, entertainment, or scientific research.
A few considerations when using images in OER under Fair Use:
Use images from a range of sources rather than a single creator.
Be prepared to justify why an image supports your pedagogical purposes.
The extent of use matters: for illustration purposes, Fair Use is likely to cover one image, but not an entire film.
Always attribute the image! Examples of attribution can be found at Open Oregon and elsewhere.
Images should enrich the text; OER authors should avoid images that are simply decorative.
For more information, please see the Code of Best Practices in Fair Use for Open Educational Resources (2021) from the Center for Media and Social Impact.