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 open educational resources are 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 to make these types of substitutions. If it’s necessary to use a very small piece of someone else’s work to make a point (a short quote, for example), this is usually allowable. If you do this, be sure to indicate that the content you’re using is in copyright and you’re relying on fair use in your attribution. 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.