Many instructional designers will agree that development of materials is tedious but important in the design process. Increasingly, the task of developing materials involves using copyrighted materials. To ensure this is done ethically regarding the material’s creator, instructional designers should understand fair use. Fair use is the use of copyrighted materials for limited purposes such as criticism, parody, educational purposes, or to comment upon them. Such uses do not require the permission of the copyright owner (Stim, 2021).
Fair use involves the abovementioned uses because they are minimally “transformative.” This is a vague adjective and indeed legal discourse around the idea of fair use evolves frequently. Just like free speech, legislators and the judicial system has purposefully kept the concept vague so as to not limit its definition. Fair use is often judged in two categories: commentary and parody. Commentary allows for small portions of content to be quoted so long as they are referenced. Parody by nature involves copying aspects of the content being paradied. For this reason, parody is often allowed more flexibility than commentary (Stim, 2021).
When determining how and when to use copyrighted material for fair use, there are four aspects to consider. First, the purpose the content will serve whether educational or commercial. Most often educational purposes will fall under fair use. Second, the essence of the material whether factual or fiction. Factual content usually intended to be shared and understood by the masses and therefore will usually fall under fair use. Third, the amount of the content you intend to use matters. Small amounts of content will usually be considered fair use. Lastly, the potential for market gains. If there is profit to be made, the copyright owner should be compensated and would therefore not fall into the category of “fair use” (Fair use for teaching and research, 2023).
There are many resources available to those who want to practice fair use. Copyright.gov is a wonderful repository of information about the current state of fair use law. They upload information about fair use and ongoing court cases frequently. They also have past judicial decisions organized into a Search Index that allows you to sort by the type of content involved such as photographs, music, news reporting, etc. Instructional designers should also be aware of Creative Commons that has a wealth of resources which each include how to give credit to the copyright owner.
Because fair use is usually more hospitable to educational settings, there are many fair use resources available for educators of all grade levels. While systems such as Teacher Pay Teacher exist that allow for paid content, there are other systems that provide free lesson plans and classroom resources such PBS Learning. I have personally used PBS Learning in the classroom with success. Each of their resources is watermarked to prevent copyrighting, and if necessary I can slightly tweek them to meet the needs of my class. In addition to full lessons, PBS Learning shares videos, photos, newspaper articles, interactive webpages, and more.
PBS Learning is an open educational resource repository. Open educational resources are any educational materials that either exist in the public domain (free to anyone) or published under creative licenses such as Creative Commons to specify how and when they can be used (All guides: Open educational resources, 2023). An organization I keep my eye on is the Texas Higher Education Coordinating Board (THECB) which advocates and provides resources to higher education institutions of Texas to promote a competitive Texas workforce. My mentor works in the digital learning division of the agency and shared with me a project that her division has worked on for several years.
In August of 2020, the THECB launched an Open Educational Resources Repository for Texas learning institutions. Because these resources are free to access, they will greatly increase Texas learner’s access to education. One of the largest barriers to higher education is the cost not just of tuition but text books and other resources for class. This repository will take care of that financial burden for hundreds of thousands of Texas students. My mentor recently shared that the repository has just gained a large count of Nursing school textbooks as the cost of Nursing school textbooks is one of the highest in higher education.
The quality of education largely depends on the quality of resources available to teachers and students. Fair use of open educational resources has expanded education past the walls and confines of a classroom and put learning materials at people’s fingertips. Access to materials that could have been a hurdle to education are now increasingly available and allowing more people to seek education, both formal and informal.
All guides: Open educational resources (oers): What are oers. What are OERs – Open Educational Resources (OERs) – All guides at RMIT University. (2023, March 1). Retrieved March 12, 2023, from https://rmit.libguides.com/openeducationalresources
Fair use for teaching and research. Fair use for teaching and research | UC Copyright. (n.d.). Retrieved March 12, 2023, from https://copyright.universityofcalifornia.edu/use/fair-use.html
Stim, R. (2021, November 25). What is fair use? Stanford Copyright and Fair Use Center. Retrieved March 12, 2023, from https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
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