Introduction to OER for Social Justice
Remixing Right: Fair Use of Copyrighted Materials
Karna Younger
Learning Objectives
By the end of this chapter, you will be able to
- Apply the four factors of fair use to copyrighted materials
OER: A Recipe for Compilation
Creating and remixing an OER can be complicated, especially when you start compiling existing copyrighted or openly licensed works. You can think of your OER as a cookbook filled with recipes from various contributors. A chapter of your OER may contain an H5P tutorial, a photo, and text all written by authors outside of your project team. It is preferable that each of these elements are licensed under Creative Commons or another type of open license. Some elements, however, may be copyrighted and used under fair use.
Compilation works
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Compilation works are given special copyright consideration because they are a whole composed of many parts. Let’s continue with our cookbook and recipe analogy to understand U.S. copyright of compilations works and their relation to remixed OER.
First, let’s remember what is considered copyrightable and not. In the age of food bloggers, recipes would seem to be a creative expression accessible and achievable to anyone with a toaster oven and just the right cookie recipe. Section 102 of U.S. Copyright, though, eschews lists, procedures, processes, systems, and methods of operation — many of which could describe a recipe — as not copyrightable. Essentially, a recipe alone is not seen as creative and more like an idea, fact, or concept, which is not copyrightable.
If a recipe is part of a compilation, though, the creative compilation may be copyrightable. This means that all those food blogs are copyrightable because of the blogger’s creative arrangement of a recipe with eternity-long reflections and step-by-step photos.
Your OER will remix a variety of ingredients, preferably public domain or openly licensed content. Like any good recipe, though, there are rules and tricks to mixing your content to legally create an openly licensed compilation.
Copyrighted Materials
In higher education we enjoy some educational privileges of copyrightable materials. Educational use is made possible through a variety of legalities that you can learn more about in a crash course. In your daily work, you are probably familiar with your ability to cite research in your own publications and library services such as archiving and lending copyrighted materials. Educational allowances are intended to foster learning and spark innovation.
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. During the Pandemic, you may recall, many publishers relaxed licensing to allow emergency instructional adaptations to an online environment. Now, however, we have resumed restrictions placed on teaching with copyrighted works. Again, copyright law is more restrictive when openly sharing copyrighted content online than in a private, face-to-face classroom.
Generative AI and OER
If you plan to create OER content with Generative AI, we recommend you review
- Affordable Learning Georgia’s “Guidelines for Using Generative AI Tools in Open Educational Resources“
- The U.S. Copyright Office’s guidance and cases on the topic, particularly their the second part of their report on Copyrightability of Generative AI materials.
Fair use
Educational uses of copyrighted materials are enabled by fair use and a number of legal exceptions. 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. To evaluate your use of copyrighted materials and works licensed under CC’s NoDerivatives, follow the four-factor fair use test, detailed below.
Four-Factor Fair Use Test
Fair Use Evaluation Tips and Tools
Fair use advocates often equate the provision to a muscle: if you don’t use it, you lose it. We advocate that you utilize fair use, but start your evaluation with the “Fair Use Evaluation Tools” provided below and reach out for a consultation.
Fair Use Recap
For a quick overview of fair use, watch the short video below.
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 reach out to us to discuss any plans to supplement your OER with copyrighted resources.
Open Access Materials
Just because research articles and other journal content are freely accessible online, doesn’t mean they are openly licensed. Open Access (OA) materials are not the same as OER because of their licensing. Rather, open access materials may be copyrighted and only licensed for you to retain a copy. That being said, open access materials are eligible for fair use and offer the benefit of being universally accessible online (no institutional log in). Always check the license before using a resource and ask us for guidance.
Tips
Though we are not lawyers and cannot offer you legal advice, we can provide you with recommended practices to empower you to make decisions about licensing and your OER. Below are some of our suggestions.
- Use and properly attribute all used materials.
- Use copyrighted materials in limitation and within recommended fair use practices for OER.
- Properly cite works in accordance with your disciplinary standards.
- Be mindful to apply an open license to your OER that allows for Wiley’s 5 Rs.
Sources
Harper, G. Copyright Crash Course, University of Texas Libraries. CC BY 4.0.
Harper, G. Fair Use, University of Texas Libraries. CC BY 4.0.
Lewis, M. and Childs, L. (2021). “Fair Use in the Real World.” Fordham Library News.
Stim, R. “Measuring Fair Use: The Four Factors,” Copyright & Fair Use, Stanford Libraries. CC BY-NC 3.0.
U.S. Copyright Office, Section 107: Limitations on exclusive rights: Fair use, “Chapter 1: Subject Matter and Scope of Copyright,” in Copyright Law of the United States (Title 17).
Attribution
“Remixing Right: Fair Use of Copyrighted Materials” by Karna Younger is licensed under CC BY 4.0.
