"Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works.
Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings." - World Intellectual Property Organization (WIPO)
Copyright clearly defines Creators' rights, outlining the ways in which users of a work can use a work created by someone else.
United States Copyright Law by 
This link opens in a new windowThe following five "R's" are five permissions that are typically reserved for creators under standard copyright law:
Open Educational Resources licensed under a Creative Commons License allow creators to grant users of their work the permission to conduct these five activities, making it possible for users to make copies, adapt, combine, and share OERs in ways that standardly copyrighted materials could not be used.
As we've covered, Open Educational Resources are licensed with Creative Commons Licenses, which are more permissive Copyright Licenses than the standard All Rights Reserved License. We have also established that OERs are free resources. So what is it that makes a resource "Open"?
As you can see, it is not just the Price of a resource that makes a resource "Open" - this means that even if a resource is free to access online, it is not necessarily Openly Licensed.
For a resource to be considered an "Open" Educational Resource, it must be Free AND Openly Licensed, meaning it should be licensed with a Creative Commons License, part of the Public Domain, or similarly free from the restrictions of a standard Copyright License.
Fair Use is an exemption to copyright law that educators must consider when deciding whether or not they can use a copyrighted resource in a way that would typically be prohibited by copyright restrictions.
The following four factors must be considered to determine whether the use of a work can be considered Fair Use:
Each of the four factors must be taken into consideration and deemed to be appropriately met by the proposed use of the copyrighted work for the use of the work to fall under the copyright exemption.
Moreover, there is no blanket statement that can be made about a situation that a certain use will "always" be Fair Use. All four factors must be considered on a case by case basis to determine grounds for Fair Use. Click on each of the following tabs for an in-depth look at what each of these factors involves.
Best Practice: Whenever you make use of a copyrighted work, provide a citation or attribution statement for the original work.
Best Practice: Whenever you deem your use of something to be a "Fair Use" exception to copyright law, make note of your reasoning. Keep a file or appendix of citations for the works with your reasoning for "Fair Use", as well as the date you used the resource. That way, if anyone questions your use, you can provide the reasoning that you applied at the time of your use.
This link opens in a new windowIs your use Commercial or Non-Commercial?
Nonprofit educational and noncommercial uses are more likely to be considered fair use than commercial uses.
"This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work." - US Copyright Law: More Info on Fair Use
Is it Fact or Fiction?
This factor examines the degree of creative or imaginative expression displayed within a work. The more creative a work, the less likely it is to support a claim of fair use.
Factual works (like news articles) are more likely to support claims of fair use than fictitious works.
How much of the work are you using?
The larger the portion of the work you use, the less likely your use is to be considered "Fair Use".
"That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work." - US Copyright Law: More Info on Fair Use
Will your use of the work (or portion of the work) affect the marketability of the original work?
If your use of the work could harm the sales of the original work, your use is most likely not "Fair Use".
Another point of consideration on this factor is whether your use of the work could cause substantial harm to the original work's market if your use of it were to become widespread.
The more likely your use of the work is to affect the original work's market and sales, the less likely your use is to be considered "Fair".
Remember that Creative Commons Licenses are Copyright Licenses - as such, this also means that they are subject to the same exceptions as standard Copyright Law, including Fair Use.
The Four Factors of Fair Use must be considered when your use of a Creative Commons Licensed work would go against the terms of its license (e.g. would develop a derivative of a No Derivatives work).
As with standard Copyright Licenses, all Four Factors must be considered and met for your use of a CC Licensed work to be considered "Fair Use".
A Member of Minnesota State