No More Skeletons or Swiss Cheese: Fair Use in Open Courseware Works

What difference does a code of best practices in fair use make? Peter Jaszi and I facilitated the creation of such a code of best practices with academics who create open courseware—open-access curriculum materials that give anyone around the world access to course information from some of the best universities in the world. Before they had a code, these designers were unsure about how to employ fair use, and without it, they found they couldn't even share some courses openly--without copyrighted material the courses were so stripped down they looked like "skeletons," as one designer said--or had so many holes they looked like "swiss cheese," as another said.

But is it being used? Has the use been challenged?

Report from the Field

Here’s a report just in from Lindsey Weeramuni, Intellectual Property Supervisor at MIT’s OpenCourseWare project:

"AT MIT OpenCourseWare we’ve made fair use claims quite a bit since the code was launched. It’s now an integral part of our publication process. We’ve published thirty-one courses with instances of fair use content in them and another thirteen are in the pipeline. For context, we publish between 180 and 200 courses per year.

 "Here are two examples of courses where fair use has made all the difference:

• Music and Technology, Lecture Notes and Videos.  The video for Lecture 13 is one file with many pieces of content being retained. Beginning at 64:18 you’ll see a flurry of examples. If not for fair use, we most likely would not have published this course. Especially in the videos, there wouldn’t have been enough material left with all of the proprietary pieces of content removed.
• Microelectronic Devices and Circuits, Lecture notes. In Lecture 2, there is an image on slide 17 of the PDF that demonstrates the concept the professor is teaching. It relates directly to the adjacent diagram and graph. Without it, the concept may be more difficult to understand.

 "You’ll see that our approach has been to include a credit line that directs users to our fair use FAQ page. And, of course, we have not yet been challenged or questioned by anyone on this issue. These examples are admittedly small and granular, but the net effect has been hugely beneficial."

Something Is Better than Nothing

The credit line, explaining that fairly used material is not included the Creative Commons license, is critical. All makers of open courseware use Creative Commons licenses, which permits users to re-use the material in any way they like. The creators of the Code of Best Practices in Fair Use for Open Courseware worried about whether fairly using material would undercut the value of their courses; they finally decided that only fair use would permit some courses (like the ones Lindsey cited) to exist at all. In their entirety, they can be accessed by consumers around the world without a legal hitch. Users who want to repurpose the material, though, need to consider their own laws when attempting to repurpose material that has been fairly used.

These examples vividly illustrate what is possible when creators claim their fair use rights. We’re grateful to Lindsey and her team, including Janet Chuang and Curtis Newton, for sharing the information.