"Fair Use" and OER: Not Bedfellows

As previously mentioned, the automatic copyright you own on your work guarantees your exclusive right to copy, distribute, import/export, adapt/modify, and sell, with some exceptions.  In certain cases, bits of your work may be repurposed in criticism, review, parody, research, and education.  This is called the "Fair Use doctrine Links to an external site." and it's what makes, in certain circumstances, it okay for an instructor to make photocopies of a magazine article and distribute them to a classroom full of students.  You may or may not be familiar with the guidelines of fair use, and since it doesn't really come into play with OER, we won't be talking about it for long.  If you would like an overview of fair use guidelines, the Columbia University Libraries copyright site Links to an external site. provides a very helpful resource Links to an external site. for determining whether or not what you are doing in class with copyrighted material is "okay." 

Byte: Briefly summarized, educational "fair use" refers to guidelines by which an educator can defend her or his educational use of materials to which someone else owns the copyright.

 

Why "Fair Use" Doesn't Apply to Open Resources

According to the most common definitions of OER (refer back to Open Educational Resource: Definition), an open resource must be expressly licensed for sharing, and this is done by the person or organization that owns the copyright.

Byte: The educational "fair use" defense of copyright violation does not apply to open educational resources because the creation or modification of a legitimate open resource can only be done by the owner of the copyright or within the requirements of a sharing license.  In other words, OER need no defense.

This is seen as a sword with two sharp edges (and not a "double-edged sword," since all swords have at least two edges).  On the one edge, when operating according to the terms of the sharing license, there's nothing to worry about because it is 100% legit and there is no need to be concerned about how the use of a work would need to be justified.  On the other edge, however, this prima facie limits what we can use in our courses.  I say "prima facie" because it doesn't, really, in the end, limit us all that much--we just have to get used to different ways of building course materials that don't require the inclusion of copyrighted content.

And there's the reason why so many instructors of composition, rhetoric, and literature simply throw up their hands and say, "Ain't gonna work." 

But it can work.