Let’s revisit that cookbook you are creating with your hiking and camping group. You already decided to openly license your compilation of recipes, but you are encountering some struggles in your casserole of contributors. For instance, you aren’t entirely sure what is copyrighted. Additionally, you have the perfect cover image of you gathered around a fire with your buddies. Unfortunately, you were not the photographer, and the copyright of the image is held by a hiker who has since moved to Colorado. What do you do?

Creating OER with a reliance on openly licensed materials may help you realize your reliance on copyrighted materials. You may feel thwarted by copyright when stumbling across the perfect figure or wanting to include a seminal article. We have good news: not everything is copyrightable, and the principle of fair use allows for educational exceptions to copyright. In this chapter, we will share guidelines for what is copyrightable, provide guidance for using copyrighted materials under fair use, and ask you to practice applying fair use to be a better-equipped OER author.

Copyrighted Materials

As we previously shared in our overview of copyright, copyrighted materials are “original works of authorship [are] fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”^[1]

But not everything is copyrightable. Information that cannot be copyrighted include:^[2]

• lists, including lists of ingredients
• ideas
• facts
• procedures
• processes
• systems
• methods of operation
• principles and discoveries
• titles, slogans, and other short phrases
• creations that are not fixed in a tangible form, like an improvisational comedy sketch
• familiar symbols or designs, like a “Stop” sign
• simple geometrical shapes
• mere variations of typographic ornamentation, lettering, or coloring

Despite these exceptions, the creative expression or explanations of these items may be copyrightable. Moreover, using copyrighted material in an openly licensed OER is more restrictive than it is for face-to-face teaching because OER are freely accessible online. Generally speaking, copyright laws and exceptions for educational purposes are more liberal for face-to-face teaching, more strict for teaching in a university password-protected learning management system (LMS), and even more strict for publishing content in the open.^[3] Copyright law is more restrictive when openly sharing copyrighted content online than in a private, face-to-face classroom. This includes publishing copyrighted material in an OER. 

Fair Use

As an educator, however, it is important to flex your right to use copyrighted materials to ensure we maintain the rights of fair use. Educational uses of copyrighted materials are enabled by fair use and a number of legal exceptions.^[5] Fair use is legal doctrine that allows for people to engage in such activities as criticizing, commenting upon, and using a work for teaching, research, and scholarship. Many of your daily uses of fair use are applicable to OER — quoting snippets from research or critiquing the lighting shown in a screenshot of a film would probably be fine. There may be some pedagogical practices you cannot replicate in your OER, though.

Four-Factor Fair Use Test

To evaluate your use of copyrighted materials and works licensed under CC’s NoDerivatives, follow the four-factor fair use test, detailed below. Select the plus signs (+) to read each factor of fair use. 

Library Resources

Some of you may want to supplement your OER with library resources, such as whole journal articles. While library resources are a great way to reduce the educational costs for students, they are copyrighted materials licensed for use by a university under many, many conditions.

Copyright and licensing conditions restrict you from revising, remixing, and redistributing library resources. Your students cannot perpetually access the password-protected sources after graduation (or if a library has to cancel a subscription). That is, you cannot engage in David Wiley’s 5 Rs with copyrighted library resources.

Please contact your OER or subject librarian to discuss any plans to supplement your OER with copyrighted resources.