Authors WTCS OER Network
License CC-BY-4.0
Using Copyrighted Content within Open Educational Resources
This tool is intended to help OER champions readily navigate how and when to appropriately include
Copyrighted materials in open educational resources. This resource is derived from information regarding
Copyright, Fair Use and OER, including:
• Code of Best Practices in Fair Use for OER, available at auw.cl/oer is licensed under CC-BY 4.0
• Code of Best Practices in Fair Use/Fair Dealing for OER: Webinar and Workshop from the Association of
Research Librarians
• Kenneth D. Krews and Dwayne K. Buttler, Fair Use Checklist is licensed under CC-BY 4.0
• Rich Stim, Measuring Fair Use: The Four Factors is licensed under CC-BY-NC
Contents
Using Copyrighted Content within Open Educational Resources .......................................................................... 1
What material can be incorporated without using ‘fair use’? ........................................................................... 1
Copyright Decision Chart .................................................................................................................................... 2
1. Is the content freely available online?........................................................................................................ 3
2. Will the use of the copyrighted content provide something new and important? E.g., Is the purpose of
the copyrighted work changing? Is the use of the copyrighted material addressing a new audience? ........ 3
3. Is the amount of copyrighted material that is being used appropriate for the purpose for which it is
being used? ..................................................................................................................................................... 3
4. Does the copyrighted material have current or potential market value?.................................................. 3
5. Will using the copyrighted material harm the current or potential market value of the work? ............... 3
6. The use is fair. Provide an attribution to the copyrighted material within the OER and cite that the
material is ‘included on the basis of fair use’. ................................................................................................ 3
Justifications for fair use within the context of Open Educational Resources ................................................... 4
Checking licensing requirements ........................................................................................................................ 5
What material can be incorporated without using ‘fair use’?
Materials with a Creative Commons License grant specific permissions to the users (e.g., free to use and share,
can make changes to the work). Material within the public domain, including:
• All pre-1926 U.S. works (as of 2021, see copyright.gov for updated info)
• Works created on the job by U.S. government employees (e.g., NASA videos, White House webpages,
CDC reports). This does not apply to works commissioned by the federal government from third
parties, some materials created by hybrid agencies (e.g., Smithsonian Institute), and non-federal
employees (e.g., state or local government, foreign government). Yet, these works could be
incorporated under fair use (see decision chart).
• Data or other factual information arranged in common or well-established ways. Examples: Table of
rainfall statistics, plant hardiness zone map, pie chart of government expenditures, chronological list of
reigning monarchs.
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Copyright Decision Chart
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Process Description:
1. Is the content freely available online?
• If yes, consider linking to the online copyrighted content. Linking to the content ensures that the use
and presentation of the work fits the intention of the copyright owner. One downside of this approach
is that you will have to fix links that become broken in the future. If your students need to access this
content offline and thus linking is not a great option, proceed to step 2.
• If no, proceed to step 2.
2. Will the use of the copyrighted content provide something new and important? E.g., Is the purpose of the
copyrighted work changing? Is the use of the copyrighted material addressing a new audience?
• If yes, proceed to step 3.
• If no, the use of copyrighted content would not fall under fair use and should be avoided.
3. Is the amount of copyrighted material that is being used appropriate for the purpose for which it is being
used?
• If yes, proceed to step 4. Example: providing commentary of a copyrighted poem and including only
the specific poem or applicable sections of the poem within the OER (e.g., ‘My God, It’s Full of Stars’),
but not, for instance, the collection of poems that the poem is published within (e.g., Life on Mars from
Tracy K. Smith).
• If no, the use of copyrighted content would not fall under fair use and should be avoided.
You may have heard of a rule regarding using up to 10% of a copyrighted work for fair use. This 10% ‘rule’ is
not definitive – as long as the amount of copyrighted content that is used is appropriate for the purpose, then
this would fall under fair use. Also know that even small amounts (much less than 10%) of copyrighted content
that make up the ‘heart of the work’ have been deemed a violation of copyright. See Columbia University
Libraries Fair Use information.
4. Does the copyrighted material have current or potential market value?
• If yes, proceed to step 5. Example: current math textbook that is available for purchase
• If no, proceed to step 6. Example: out-of-print math textbook from 1980s
5. Will using the copyrighted material harm the current or potential market value of the work?
• If yes, the use of copyrighted content would not fall under fair use and should be avoided.
• If no, proceed to step 6.
6. The use is fair. Provide an attribution to the copyrighted material within the OER and cite that the material is
‘included on the basis of fair use’.
For guidance on attributing work within OER, see best practices for attribution. In addition, document your
decision and justification for using this content under fair use. Why is this content the best choice for the
intended purpose of your OER? You could use the Fair Use Evaluator to create a pdf record of your decision.
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Justifications for fair use within the context of Open Educational Resources
Including copyrighted material for the purpose of criticism and commentary. Examples:
• Providing examples of commercial advertisements in an assignment in which students analyze the
messaging and provide a critique on their effectiveness for a Marketing Course.
• In an English Composition text, providing Martin Luther King Jr.’s ‘I Have a Dream’ speech along with an
analysis and deconstruction of the elements within the speech and how this structure advances the
key message.
Including copyrighted material for the purpose of illustration that anchors what is being taught in tangible
examples and enriches the pedagogical purpose and narrative of the teaching materials. Examples:
• Including scientific drawings of human anatomy to provide students with many different ways of
exploring anatomical features within an anatomy and physiology textbook.
• Including clips from a series of Hollywood movies can support an educator’s generalizations about how
cultural attitudes toward working women have changed over decades.
• Providing an iconic news image may galvanize students’ interest in the 1960’s Civil Rights Movement
within U.S. History textbooks.
• Including an image of Children’s Tylenol drug facts and information for use in a weight-based
calculation example in the OpenRN Nursing Skills OER Textbook.
With images, consider whether you are including the image as a ‘nice to have’ or because this is the only image
available that illustrates what you need to convey. If alternative images exist that have more open licensing
(e.g., CC-BY), use these instead.
Including copyrighted material for the purpose of accurately reflecting what students will encounter outside of
the classroom. In this case the original copyrighted material was not intended for educational purposes.
Examples:
• A nursing program preparing students to interpret patient monitoring systems provides excerpts from
manufacturers’ operating manuals within the textbook.
• Including excerpts from a University Extension fact sheet on common diseases of ornamental shrubs
for a Landscape Horticulture textbook. The original intended audience of the fact sheet is ‘home
gardeners and commercial horticulture practitioners’.
Repurposing pedagogical content from existing educational materials. In this case the copyrighted educational
content has limited to no market value (e.g., out-of-print) and still only a limited amount of the copyrighted
content is used.
• In an OER general math book, a problem set from an out-of-print algebra text is borrowed and
modified as needed.
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Checking licensing requirements
It is always a good practice to check the licensing requirements of content that you find online. In some cases,
resources that can appear ‘free’ and available for use, actually have specific terms of use attached elsewhere
on the website. Below are some licensing examples:
• Gratisography license
• Pixabay item license
• Harvard Business Review – posting articles to Canvas
• TED Talks – usage policy
• Sound Cloud – grant of license
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