If you’re an educator, you may know that you can sometimes use copyrighted works in your course through a principle known as fair use (learn more from Oregon State University’s copyright guide). In the U.S., whether or not something might be defended as fair use in court hinges on four factors:
- The purpose of the use (transformative, non-profit, and educational uses may be more allowable),
- The nature of the work,
- The amount taken,
- The impact on the market for the original.
When an educator makes 12 copies of a newspaper article for their class, this is unlikely to have a large impact on the market for the New York Times. The same educator might want to exercise more caution when distributing a copyrighted article in an open course they create because of the fourth factor: since your open course is available to everyone, sharing copyrighted content widely could impact the market.
When possible, it’s best to find a replacement for copyrighted materials when creating open educational resources. Find a similar article that’s open access, link to the article rather than reproducing it, or include a citation rather than the full text. If you want to use a copyrighted image, see if there’s a similar one that has a Creative Commons license, or make your own! This may seem like a lot of work, but it protects you and your institution, and it will also make your open educational resources more useful to others down the line.
Fair use exists because sometimes it is impossible or unreasonable to make these types of substitutions. Re-users of your open educational resources will need to make their own fair use determination for that content. To learn more about how fair use applies to openly licensed works, see the Center for Media and Social Impact’s Code of Best Practices in Fair Use for Open Educational Resources.
If you use fair use to reproduce all-rights-reserved content, be sure to indicate that the content you’re using is in copyright and you’re relying on fair use in your attribution. Here are three ways to do this, suggested by the Code:
Include a statement in the front matter of your open educational resource. Example: “Unless otherwise indicated, third-party texts, images, and other materials quoted in these materials are included on the basis of fair use as described in the Code of Best Practices for Fair Use in Open Education.”
Use image captions, page footers, or attribution lists to note the copyright status of materials close to where they are used in your open educational resource. Example: “This illustration, from [SOURCE], is included on the basis of fair use.”
Combination of front matter notice and chapter/page-level notice.