The annual celebration of the important copyright doctrine of fair use will be held from February 21-25, 2022. In commemoration of this year’s event, the SCOOP will examine the latest volume in the Best Practices in Fair Use series, which covers the application of fair use in the creation and use of open educational resources (OER). This topic is also timely as Atla will be hosting the ACRL Virtual Roadshow on OER and Affordability on March 9 and 11, 2022. There is still time to register for this important learning and professional development opportunity.
As with past Codes, the Code of Best Practices in Fair Use for OER presents a non-exhaustive list of scenarios, which they refer to as principles, where the application of fair use occurs most commonly, along with considerations that will help a user ensure that their fair use argument is strong. Additionally, this Code presents “hard cases” where creators of OER should exercise special care. Below, these principles, considerations, and hard cases are briefly described. You are strongly encouraged to refer to the full text of the Code including the preliminary content and appendices before acting on the advice as summarized here.
Principle A – Using Inserts as Objects of Criticism and Commentary
In all subject areas, OER, like traditional commercial textbooks and other learning materials, often depends upon the inclusion of copyrighted objects to enable analysis, critique, and commentary. This dependence results from there not being any pedagogical equivalent to the copyrighted object to be included. Although this is a relatively non-controversial application of fair use, there are some instances, such as the creation of an anthology of literature, where extra care should be exercised. Further, OER creators should be mindful of the following considerations:
- Only include those copyrighted objects that will be directly examined and refrain from including supplementary or additional “examples” that are not necessary to the inquiry.
- The amount of a copyrighted insert should be quantitatively and qualitatively appropriate to the scope of the analysis.
- Where multiple objects of comparison will be included, the creator should draw from a range of sources.
- Always provide attribution.
Principle B – Including Inserts for the Purpose of Illustration
Copyrighted works are often inserted into OER for the purpose of providing illustrative examples of an idea, theory, or practice. Fair use supports the incorporation of such materials when done so thoughtfully and appropriately and from a full range of sources and media and where the following considerations are made:
- OER creators should, in the text, explain why this particular example is significant in the context where it appears.
- OER creators should avoid the use of copyrighted works that are exclusively or primarily decorative and that do not further the pedagogical purpose and narrative of the OER.
- The amount of a copyrighted work included as an illustrative example should be quantitatively and qualitatively appropriate to the pedagogical relevance.
- When evaluating copyrighted works for inclusion, OER creators should be aware that some factual content may be freely used due to limitations of copyright protection.
- Always provide attribution.
Principle C – Incorporating Content as Learning Resource Materials
In subjects or courses where practice-based learning is enhanced by utilization of real-world resource materials (e.g., foreign language courses), fair use may support the inclusion of these copyrighted forms of materials in OER. Where this becomes tricky, however, is where those resource materials are considered “high value” contemporary pop culture pieces such as music videos or television shows. OER creators should exercise caution when incorporating these works and provide enough contextualization (e.g., glossaries, annotations, study questions) to enhance their value as learning resources. Additionally, OER creators should follow these recommendations:
- Resource materials should include references to newly-authored contextual materials.
- If including popular culture content, OER creators should be prepared to explain their pedagogical value beyond mere entertainment or informational content.
- The extent to which a copyrighted resource material is included should be quantitatively and qualitatively appropriate.
- Resource materials should always be derived from the original or primary source and not from versions that have been edited or simplified for educational purposes.
- Where multiple resource materials are incorporated, they should come from a range of sources.
- Always provide attribution.
Principle D – Repurposing Pedagogical Content from Existing Educational Materials
Out-of-print but still copyrighted textbooks and practice or user manuals common to a profession often provide critical fodder for new OER. Provided the current market, including available licensing schemes, are considered and respected, fair use supports selective incorporation from these types of sources into new OER. The following considerations should be made before incorporating these types of materials into new OER:
- Determine whether the source material is protected by copyright as some factual content is not protected by copyright.
- OER creators should be prepared to explain the learning value of the content selected from existing educational materials and why it represents the best choice for the intended purpose.
- OER creators should also be prepared to explain why their OER does not function as a market substitute for the existing educational materials they are incorporating content from.
- When incorporating content from superseded educational materials, the range of source works should be diversified.
- Always provide attribution.
Additional Resources
- The Association of Research Libraries hosted a webinar and workshop on the Best Practices in Fair Use for OER when it was released in 2021. You can view the recording of this event here.
- In 2021, Atla offered a four-part webinar series on copyright and fair use. You can search for the recordings of these webinars on Atla’s On Demand Learning webpage.
- Diversity and accessibility are also critical to OER design. Check out our advice in this SCOOP column.
The SCOOP, Scholarly COmmunication and Open Publishing, is a monthly column published to inform Atla members of recent developments, new resources, or interesting stories from the realm of scholarly communication and open access publishing.
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