20.1 Fair use as a complement to open licensing

The open educational resources movement has long concentrated on the use of licenses to turn material that is copyrighted and permanently transform it into material that is free for anyone to use, copy, and modify. These licenses depend on copyright to work, in that the work has all of the normal entitlements of copyright attached, only some of which the author reserves.

Advantages of licenses include that they are easy to understand; that it’s clear what they forbid, permit, and require; and that they have at least some legal standing no matter where in the world one wishes to use the material they cover. A different concept that also relies on copyright is the American legal doctrine of fair use of copyrighted materials. This doctrine states that there are certain circumstances in which it is legal to use copyrighted materials without the permission of the copyright holder.

Fair use came about from federal court decisions in the nineteenth century that sought to balance the entitlements provided by copyright legislation with the interest of free speech specified by the first amendment to the U.S. Constitution.

Four considerations for fair use

While the origin of fair use lies with federal court decisions, it was also entered into legislation, specifically the Copyright Act of 1976. This legislation stated:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

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;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The first consideration is the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. When it comes to purpose and character, courts have ruled that whether the use of the work is fair use requires that the new work be not merely derivative of the original, but transformative of it. It’s important to note that while court decisions have said that a stronger case can be made for fair use that is in an educational setting, particularly a non-profit one, even that class of use does not make it a given that use of material is fair use – the other considerations are still in effect.