Introduction

Copyright is a legal protection granted to creators of original works—such as books, articles, images, videos, music, and software—once these works are recorded in any fixed form. This protection gives the creator exclusive rights to reproduce, distribute, adapt, perform, or display their work. Copyrighted works are simply works that enjoy this legal protection. They cannot be used, copied, or shared without permission unless an exception (like fair use) applies.

Open education materials (OER) materials often, where possible, integrate third-party copyrighted materials. Incorporating such material frequently presents significant challenges. Under certain circumstances, those producing OER will be required to secure permission from copyright owners and “clear the rights” in order to proceed with the intended use. The process of securing permissions or licenses from copyright owners is rarely an easy, inexpensive, certain, or straightforward enterprise. Fortunately, there are instances under U.S. copyright law where rights clearance is not necessary. Fair use is one such instance.

Fair Use

Fair use is a U.S. legal principle allowing certain uses of copyrighted material without permission, especially in educational contexts like OER. Whether a use is fair involves weighing four key factors:

1. Purpose and Character of the Use:

   Noncommercial, educational uses generally favor fair use. Uses that are “transformative”—adding new meaning, analysis, or context and repurposing for a new audience—are especially likely to be considered fair.

2. Nature of the Copyrighted Work:

   Using factual, published works generally supports fair use more than using highly creative or unpublished works.

3. Amount and Substantiality of the Portion Used:

   Limiting use to the smallest necessary portion and avoiding the “heart” of the work supports a fair use claim.

4. Effect on the Market for the Original:

   If the use does not diminish the original’s market value, it is more likely to be considered fair.

A classic example of fair use is using a snippet of something for parody or news commentary. Such a use is transformative, adding new meaning, humor, or analysis to the original work, aligning with educational or public interest purposes. They typically use factual or published works, which supports fair use, and limit their use to only what is necessary, avoiding excessive copying. Additionally, these uses do not compete with or harm the market for the original work; instead, they provide critique, commentary, or insight, targeting a different audience and serving a distinct purpose.

Note that media in the public domain are not copyrighted. Public domain media includes very old works like classic literature (e.g., Shakespeare), historical documents, classical music (e.g., Beethoven), and government-created content (e.g., NASA images), which are free to use without permission. Many museums and archives, like the Smithsonian and Project Gutenberg, also provide public domain materials.

Related Doctrines and Concepts That Shape Copyright Boundaries:

• Idea/Expression Dichotomy: Copyright protects the expression of ideas, not the ideas themselves. Facts, methods, and concepts remain free for all to use.
• Merger Doctrine: When there are only a limited number of effective ways to express a given idea, none of those expressions are protected. This ensures no one can monopolize an idea by controlling its only feasible expression. E.g. a table to communicate basic data. For example, this notion has influenced MIT’s IP counsel to inform OCW that OCW can include someone else’s graph or table by claiming fair use — to be contrasted with a complex, creative infographic, which typically cannot be included just by claiming fair use.
• Scènes à Faire: Common, standardized elements necessary to convey a certain idea or theme are not protected by copyright. For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a deadly woman, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects.
• “Thin” Copyright: Some works, like factual diagrams or historical accounts, have only a thin layer of copyright protection because they incorporate substantial unprotected content (like a timeline of factual events). In these cases, it’s often easy to avoid infringement simply by altering the minor creative elements while retaining the factual or functional core.

By carefully considering these factors and doctrines, OER creators can more confidently determine if their use of copyrighted materials is permissible under fair use.