Contributed by Will Cross & Meredith Jacob

Open Education is Not a Closed Book Exam

Open education aspires to be a global movement centered around a shared body of inclusive and resilient materials. In order for open education to fulfil this aspiration, educators must have the ability to reference and incorporate the most current and relevant materials even when those materials are protected by copyright. Developing OER cannot be a closed book exam where creators are forbidden from referring to what came before or from including examples of the world as it exists today. Likewise, OER must be able to engage with the vast majority of resources that are not openly-licensed, including the great body of materials created by authors who worked before the mid-2000s when the Creative Commons came into broad use and newer materials developed by creators and communities that have not openly-licensed their work. 

Limiting OER to only the small body of openly-licensed materials can warp both what subjects are covered in open educational resources and how those subjects are taught. Conceding these resources greatly reduces the quality and impact of OER and reduces the potential for these works to be inclusive in the communities and sources represented. It also ignores one of the most significant aspects of copyright law itself: the users’ rights reflected in copyright’s limitations and exceptions.  

Good Pedagogy is Good Fair Use

Copyright law has always depended on a balance between the limited monopoly provided to rightsholders and the exceptions and limitations that permit broad public use without permission. Without specific limitations and exceptions, copyright would not be workable in the real world or constitutionally permissible. In US law that balance has been especially powerful when analyzed through the lens of fair use, a flexible exception that permits socially-valuable uses like education, particularly when they repurpose existing materials in ways that add new meaning, message, or creativity; what courts have called  “transformative uses.”

Fair use plays a critical role in education, particularly because it centers transformative practices. Unlike many legal rules that focus on technical details such as when a format has become “obsolete” or semantic nuances about what constitutes “mediated instructional activities transmitted via digital networks” fair use asks the simple question: “are you using works in the creative ways that a good teacher or student should?” As we often say when discussing fair use with clients, patrons, and friends, “good pedagogy is good fair use.”

Despite the importance of fair use for effective education, many open educators have shied away from relying on fair use due to some combination of anxiety and confusion. In order to clarify the law and empower open educators in North America, a group of librarians, lawyers, and open educators have developed a Code of Best Practices in Fair Use for Open Education. Building on interviews and focus groups with creators, publishers, and legal experts in the open education community, we have developed a resource that explains how copyright exceptions like fair use can empower educators and publishers. Since the Code’s release in the spring, we have seen tremendous enthusiasm for this resource as a tool for offering new opportunities to live up to our aspirations and build open resources based on pedagogy and inclusivity, unencumbered by legal uncertainty and anxiety.

Good Pedagogy is Good Fair Dealing, Too

Because fair use is a US-specific law, however, we have also begun to explore the ways that the laws of nations around the world align to support the practices we describe. If we aspire to make open education a truly global movement, the community must understand how copyright impacts these uses in different nations and across national borders. 

The good news for open educators is that, while national laws often differ in their specific terminology, most nations have a similar set of fundamental expectations about what good educational practice looks like, particularly when incorporating third-party materials as quotations. A US-based OER developer who includes a brief quotation from a foundational text in her new open textbook relies on 17 USC §107’s right to fair use. In Canada, that same researcher would rely on fair dealing as described in sections 29 and 30 of the Copyright, Designs and Patents Act 1988. Every nation’s laws describe the right differently, but essentially every nation permits the practice of scholarly quotation.

This shared set of practices reflects a core understanding about the role of education in a functioning copyright system. This understanding ultimately comes not from legislators but from the traditions and best practices of educators themselves. Quotation is necessary in order to build on and engage with the foundational works in a field and with the lived experiences of students in the classroom and the world they are being prepared to enter. 

Fortunately, these shared understandings exist not just in the grassroots of professional practice or even in the national laws that codify these understandings. They are also recognized in international treaties like the Berne Convention for the Protection of Literary and Artistic Works, which provides a framework for international copyright harmonization. Among other things, Berne includes a requirement that all nations recognize some form of quotation right as described in Article 10(2), which some scholars argue goes a long way towards creating some form of global mandatory fair use right. It’s no surprise that every nation has some version of a right to quote: global communities of educators and international law both demand one!

Globalizing OER with Codes of Fair Practice

In light of this potential harmony and the success of the Codes of Best Practice, nations outside of the United States have begun to develop their own codes of fair practice. Canadan librarians are deep into the work of adopting Codes for Software Preservation and are exploring a parallel code of fair practice for OER, as discussed in the keynote at the most recent ABC Conference. 
Other nations are also exploring codes of their own. The UK Copyright and Creative Economy Centre (CREATe) at the University of Glasgow is developing Codes for the UK, and the UK Association of Learning Technologies (ALT) recently hosted a webinar on the topic as well. As these Codes continue to develop, it will be interesting to see how they align with existing codes and each other. We hope these resources can be useful for individual open educators and as a foundation for a truly global body of OER.

References

• The Code of Best Practice in Fair Use for OER
• Deep Dive: Legal Backgrounder on the Best Practices in Fair Use and Their Validity 
• Global Mandatory Fair Use: The Nature and Scope of the Right to Quote Copyright Works
• Strengthening Canadian User Rights through Shared Understanding: Adapting the Codes of Best Practices in Fair Use for Canada
• Building Copyright Literacy for a Global Community of Open Educators with the Code of Best Practice in Fair Use for OER

Will Cross (he/him) is the Director of the Open Knowledge Center & Head of Information Policy in the NC State University Libraries, an instructor in the UNC SILS, and an OER Research Fellow. His current research focuses on copyright literacy as core infrastructure for open science and knowledge. In addition to the Code of Best Practice, he is currently working on two research streams embodied in IMLS-funded projects: the Scholarly Communication Notebook and the Library Copyright Institute.

Meredith Jacob (she/her)serves as the Assistant Director for Academic Programs at the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law. Her work includes student outreach and advising, curriculum coordination, and academic research and advocacy. Currently her work also includes research and advocacy focused on open access to federally funded research, flexible limitations and exceptions to copyright, and public interest in international intellectual property. Previously, Meredith worked with state legislators on a variety of intellectual property and regulatory issues affecting pharmaceuticals and the privacy of prescription records.

This post is by Will Cross and Meredith Jacob and is released under a Creative Commons Attribution 4.0 International license, except where otherwise indicated. Please reference OER and Beyond and use this URL when attributing this work; for more information on licensing, see our Open Access Policy.