Three legal provisions provide the basis for using materials in the creation of open educational resources:
By definition, open educational resources--though they may be copyrighted--are made available under various open licenses that permit free reuse, revision, and customization by educators and students.
The most commonly-used open licensing scheme for these materials is one of the six Creative Commons licenses. Our librarians are happy to answer questions about these licenses.
More information about Creative Commons can be found on our Open Access guide.
Under U.S. law,
... 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.
The four determining factors for fair use outlined in 17 U.S. Code § 107, "Limitations on exclusive rights: Fair use," are:
The authors of the 2021 report Code of Best Practices in Fair Use for Open Educational Resources encourage creators and educators to ask themselves two questions when considering the incorporation of copyrighted material into classes and open educational materials:
They add: "If yes to both, it's unlikely that you'll be providing a "substitute" for the copyright work in its intended market--which is the only pocketbook issue relevant to fair use."