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Coming Soon: Code of Best Practices in Fair Use in OER!

I have observed that educators and librarians have a deep fear of relying on fair use in their teaching, and forget about relying on it during OER creation. At the same time, every lawyer that I hear speak on fair use describes it as way underused. I get it, copyright, and fair use in particular, is complicated and intimidating. But it’s time for us to stop fearing fair use.

Everyone’s favorite bow-tied lawyer-librarian Kyle Courtney has been telling us for years, fair use is like a muscle: use it or lose it. We create the norms of what is considered fair use by the decisions we make everyday and we should make this limitation on copyright law work for us. This idea of proactively embracing the power of fair use was revisited at the 2020 Open Education conference by Peter Jaszi, Meredith Jacob and Will Cross in their presentation, How Would You Teach If Copyright Weren’t in the Way?  

And then they announced an excellent development for the OER community, something that is going to help a lot of us overcome our fear of fair use: a Code of Best Practices in Fair Use for Open Education.  Final review and edits are taking place now and it is expected to drop sometime in January, (sneak peek below.)

I am SO pumped about this, and if you create OER, you should be too.  Here’s why.

If you’re not already familiar with Fair Use codes of best practices, they are, for those of us without law degrees, hands down the best and easiest path to making use of the fair use exception.  

The first code came out in 2005, and there are now at least 12.  They are created thusly: actual lawyers talk to actual practitioners in a field (some, but not all, listed below) and identify the practices where consensus already exists that these activities are fair use. There is vetting and editing and then results are written up in brief, reader-friendly documents with clear descriptions of examples and limitations.

For understanding real-life, commonly occurring fair use scenarios, you are infinitely better off finding the code in your area, reading it thoroughly and getting on with your life, than say perpetually studying fair use, the four (or basically 2 now) factors, and how courts are ruling in various cases.  I can say this having attempted both approaches.  (Also learning fair use can be tough on students, but in my experience they really like the codes.)   

Peter Jaszi reminded us how “surprisingly non-controversial” these codes have been.  Since these started coming out there has not been a single lawsuit involving someone operating within one of these codes.  It’s not just that no one has lost a lawsuit, but rather that not a single suit has been brought.  And that is why codes are so awesome – they tell practitioners what they should not be afraid to do, and they signal to copyright holders: don’t bother people doing these things because there is broad consensus that they are fair use and a suit will be a waste of time.

Here is a sneak peak at the fair use practices that will appear in the OER code (some of this wording is lifted from the slide deck of the presentation.) These are the practices where there is already broad consensus that they constitute fair use.

  1. Commentary & Criticism: this has always been the bread and butter of fair use.  “…if an OER is addressing a text, image, or other object directly – or inviting readers to do so – there is no reasonable pedagogical alternative to including that item.” (emphasis mine)
  2. Illustration: “Fair use supports the incorporation of thoughtfully selected illustrations…” Not illustrations in the sense of picture books, but rather examples in any kind of media or genre. Even if you’re not providing or inviting commentary or criticism, there are times when examples need to be included so readers will know what you’re talking about.
  3. Resource Materials: Students need practice. They need material and content to work on, to test out their skills on, and to work on their mastery of.  It’s ok to use content derived directly from primary sources, (rather than edited or simplified versions.)
  4. Orphaned Educational Materials: Here they seem to be using a slightly different meaning of the word “orphaned” than what I was expecting.  Rather than meaning works whose copyright holder cannot be identified or located, they mean works no longer in wide use or that are out of print.  Taking short bits or possibly even problem sets from such works is fair use.

I would be remiss if I didn’t remind you here that no code of best practices is comprehensive.  Just because something isn’t described in a code doesn’t mean that it isn’t fair use – it may well be.  The codes just describe the most common situations that everyone already agrees on.  

A few things that came up over and over in the OER examples, and frankly across all the codes that I’ve read:

  • Diversify the sources you’re pulling from. Whenever possible, take examples from different sources, rather than relying too heavily on one particular source.
  • The amount used should be appropriate to the educational purpose.  Think about how much text, how long of a clip, what image resolution, etc. is required for your pedagogical aim.  
  • Where applicable include the “apparatus” or appropriate guidance such as annotations and reflection questions alongside the materials.
  • Attribution. We’re academics, we do this anyway.  But it’s an important ethical (if not necessarily legal) obligation.
  • Signal fair use. When you reuse something under fair use, make it clear to your audience exactly what content is being reused and that you are applying fair use.  Anyone seeking to reuse your openly licensed material needs to know which chucks of content your open license does not apply to, and clearly signalling fair use will prompt future reusers think about whether fair use applies in their case as well.

There’s a variety of ways to signal fair use and the idea here is similar to signalling when you’ve reproduced content that has a different CC license to the one you’re using for your overall work.  You could put an acknowledgement in the front matter, for example:

“Unless otherwise indicated, third-party texts, images, and other materials quoted in these materials are included on the basis of fair use as described in the Code of Best Practices for Fair Use in Open Education.”

You could insert the information into the text itself:

“this illustration, from [SOURCE] is included on the basis of fair use” 

Or use a combination of both.  Signalling fair use is pretty new territory for everyone, so there’s no one “right” or agreed upon way to do it.  I’ve even heard it suggested that a symbol of an “f” in a circle could be adopted to indicate fair use, but I’ve yet to see it in the wild. 

The main thing that participants of the OpenEd20 session asked for were more specific examples.  I think this put the lawyers in a tricky spot; since they aren’t *our* lawyers they can’t offer legal advice on specific situations.  They hedged and said maybe they could do some sort of “office hours” thing in future.

Not being a lawyer, I can’t offer legal advice either, but I’m comfortable enough in my understanding of fair use that I would be happy to have to have an informational conversation with any of my PSU/USNH/CCSNH colleagues about it.  Keep an eye out for the code and I’ll update this post with a link when it becomes available in January. And let’s embrace the power of fair use!

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