Date of this Version
Best Practices in Fair Use series, the Program on Information Justice and Intellectual Property, American University Washington College of Law
Version 1.0, February 17, 2021
Alternate title: Best Practices in Fair Use for OER
Also available at https://cmsimpact.org/code/open-educational-resources/ and https://auw.cl/oer
This code of best practices includes descriptions, hard cases, principles, and considerations for fair uses of materials in open educational resources with respect to United States copyright law, and with some discussion of copyright outside the United States context.
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.
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.