If you want to include copyrighted material in an OER, it is important to understand your options.

Copyright is best thought of as a bundle of rights, granted to authors by the U.S. Copyright Act. Generally, these rights are reproduction, distribution, making derivative works, public performance, and public display. Authors have these rights just by fixing their idea in writing or another form of expression. A common misconception is that you can use copyrighted materials however you’d like, as long as you credit the author or creator. While attribution is important, you need permission to distribute copyrighted work (in an OER or elsewhere).

For works created on or after January 1, 1978, copyright lasts for the life of the author plus seventy years.  When the copyright for a work has expired, it is part of the “public domain,” meaning it can be used freely without payment or permission, because it is no longer owned by anyone.  Two guides to determine if a work has entered the public domain are Cornell’s Copyright Term website and the Public Domain Slider of the American Library Association Office for Information Technology Policy.  If you determine that a work is still in copyright, the following sections provide some strategies for still using the work.

Using Copyrighted Material

Linking and Embedding

You can generally provide a web link to or embed media from copyrighted material into your own materials without permission from the copyright holder. This is different from copying and pasting the copyrighted material into your own work because it allows the copyright holder to maintain control of their content and to generate revenue through web traffic. The primary exception to this rule would be if you provided a link to materials that should not be publicly accessible and allowed your users to bypass restrictions placed on the content by the copyright holder.

Fair Use

If you’re unable to link to the work, consider if your use of the work falls under fair use, which is discussed in more detail below. Always contact IU Libraries Copyright Program Librarian Naz Pantaloni if you have questions while conducting a fair use analysis.

Getting Permission

If linking or using the material under fair use is not possible, you must get the creator’s permission to use the work. Visit the IU Libraries copyright guide for more information about this process.

Fair Use

As you develop your OER, you may find that you wish to use parts of original works by others in your teaching materials. Original works by others will likely be protected by copyright. However, you may be able to include others’ materials if your use of those materials falls under the criteria of fair use. Think of fair use as a defense against potential claims of copyright infringement. Put simply, “fair use allows limited use of copyrighted material without permission from the copyright holder for purposes such as criticism, parody, news reporting, research and scholarship, and teaching” (Baylor University). While the following page provides guidance, if you have any questions while conducting a fair use analysis, please do not hesitate to contact IU Libraries Copyright Program Librarian Naz Pantaloni.

Four factors, listed below, must be considered when you are determining whether your use of a work falls under fair use. Remember that you must take into account all four factors together.

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
2. The nature of the copyrighted work (e.g., fiction or nonfiction, published or unpublished, important to educational objectives). Factual works (e.g., scientific or historical) are more likely to be covered by fair use than creative works (e.g., literature, movies).
3. The amount of the work used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for or value of the copyrighted work.

See the IU Libraries Fair Use Guide for more information about fair use in general and more details about the four factors.

You can also find more information about fair use as it specifically applies to OER in the Code of Best Practices in Fair Use for Open Educational Resources: A Guide for Authors, Adapters & Adopters of Openly Licensed Teaching and Learning Materials. In particular, pages 9-17 describe specific cases that OER creators might consider ‘fair use’ as they are utilizing copyrighted content. The document is fairly lengthy and technical–always feel free to reach out to Naz for specific guidance for your project.

Guidelines

To determine if the desired use of copyright-restricted material would fall under fair use, ask yourself four questions:

1. Use: Is the use transformative? In other words, is the use significantly different than the purpose of the original? (Yes = Fair Use)
2. Type: Is the work informational/factual in nature? (Yes = Fair Use)
3. Amount: Is the use minimal? (Yes = Fair Use)
4. Impact: Does the use negatively impact the copyright holder’s ability to profit from the work? (No = Fair Use)

Fair use is a judgment call, but the call is made based on the answers to these four questions. Thus, if your answer to all four questions aligns with fair use, then your use would likely be judged as fair. If the answer to one question does not align with fair use, then your use might still be fair, but it increases the potential for it to be judged otherwise. Keep in mind that these are guidelines of best practices. You must evaluate fair use on a case-by-case basis.

On the whole, if you’re exercising fair use, it’s important to articulate to yourself the exact function, purpose, context, and reasoning behind your use of copyrighted material so that, if the need arises, you can explain this to others. Conduct a fair use analysis to determine if your inclusion of a work qualifies as fair use. Refer to this Fair Use Analysis Checklist (Links to an external site.) and this Fair Use Checklist (Links to an external site.).

Helpful Resources/ References

• IU Libraries Copyright Services
• Code of Best Practices in Fair Use for Open Educational Resources
• Fair Use Analysis Checklist
• Fair Use Checklist
• Infographic: Fair Use Fundamentals
• Using Copyrighted Material
• Fair Use Research Guide
• Copyright and Open Licensing by Royce Kimmons is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License

Adapted from ASCCC OERI – Introduction to OER