Libraries at University of Nebraska-Lincoln


Date of this Version


Document Type



Version 1.0 Publication date February 17, 2021


Creative Commons Attribution 4.0 International License.


Code of Best Practices in Fair Use for Open Educational Resources 5

Open Educational Resources and Fair Use ... 5

Open Educational Resources, Inserts, and Universal Access .... 6

Behind the Code: Copyright Flexibilities and Fair Use in OER 7

Applying This Code 9

THE CODE: Principles, Considerations, and Hard Cases ... 11

A. Using inserts as objects of criticism and commentary 11

B. Including inserts for the purpose of illustration 12

C. Incorporating content as learning resource materials 13

D. Repurposing pedagogical content from existing educational materials ... 14

Signaling Fair Use . 16

Appendix One: Background findings .... 18

Appendix Two: Fair Use Then and Now ... 24

The Fair Use Right and the Function of Copyright ... 24

Fair Use and Education ... 25

Fair Use and Access to Educational Materials .... 26

The Developing Law of Fair Use 26

Fair Use in a Nutshell ... 28

Appendix Three: Educational Fair Dealing in Canada . 30

The Development of Fair Dealing in Canada . 30

The Common History of Fair Dealing and Fair Use .. 30

Fair Dealing as a User Right 31

The Copyright Pentalogy 32

The 2012 Copyright Modernization Act .... 33

US-Canada Cross-Border Considerations for the OER Community 34

Appendix Four: Educational Exceptions and Quotations Rights Around the World .. 37

Appendix Five: Beyond fair use: more good news about copyright for OER .... 40

The Public Domain: Materials and Content not Protected by Copyright .. 40

Built-in Constraints on the Scope of Copyright 42

What About Other Areas of Intellectual Property? Trademark Law Considered 44

What About Patent Law? ... 45