Business OER & Fair Use

Fair use is the right to use copyrighted material without permission or payment in a certain limited capacity. We encourage educators to try to find openly licensed content to include in their resources. We also acknowledge that sometimes the most appropriate content to help students meet your learning objectives may be a copyrighted resource. If you are going to rely on fair use, it’s essential that you first understand the fair use guidelines. You must be able to explain the “specific teaching or learning value of each incorporated [copyrighted] item and why it represents the best choice for the intended purpose”, as stated in the Code of Best Practices in Fair Use for OER (Links to an external site.), written by the American University Washington School of Law and licensed under CC BY 4.0.

Four Factors of Fair Use

The fair use provisions of U.S. copyright law allow use of copyrighted materials for specific purposes without permission of the copyright holder. The law as written is brief and general. Fair use is flexible, which means it can adapt to new situations, but also that there are no black and white rules.  In order to assess fair use, courts apply a holistic assessment of four factors:

1. The purpose and character of your use
   • Nonprofit, educational, scholarly or research use favors fair use
   • Transformative use (repurposing, recontextualizing, using the work for a new purpose) favors fair use
2. The nature of the copyrighted work you are using
   • Using published, fact-based content favors fair use
3. The amount of the work you are using
   • Small or less significant amounts favor fair use
   • Using only the amount needed for a given purpose favors fair use
4. The effect of your use on the market for or value of the copyrighted work
   • If there would be no effect, or it is not possible to obtain permission to use the work, this favors fair use

Applying this four-factor test is not a clear-cut process, and each individual needs to weigh all four factors to decide whether a fair use exemption will apply to a proposed reuse.
 

Simplifying questions for fair use

In most academic uses, two questions are most relevant for a fair use analysis:

• Does the use transform the material, by using it for a different purpose?
• Was the amount taken appropriate to the new purpose? (Did you only take the amount you needed for your purpose?)

If you can answer a clear ‘yes’ to both questions, you generally should have a strong fair use case.

How to improve a fair use case for an image

Suggestions for improving your fair use case:

• Place the image in a new context or use it for a new purpose
• Use lower resolution or thumbnail versions where possible
• Use only the parts of the image needed for the purpose
   

Getting permission

If fair use or another copyright exception does not apply to a copyrightable work, you will generally need to get permission.

• For a general guide of the permissions process, go to this Stanford University Libraries page.
• You may be able to pay a fee to the rights holder in order to use material; for a portion of a book or article, an efficient place to begin is the Copyright Clearance Center, a commercial service.
• For reuse of content from formats other than a book or article (e.g. music or film) consult this University of Texas guide.