How to Fight Fair Use Fear, Uncertainty, and Doubt: The Experience of One Open Educational Resource

Lindsey Weeramuni

doi:10.17161/jcel.v3i1.9751

Abstract

At the launch of one of the early online open educational resources (OER) in 2002, the approach to addressing copyright was uncertain. Did the university or the faculty own their material? How would the third-party material be handled? Was all of its use considered fair use under Section 107 of the U.S. Copyright Act (Title 17, United States Code) because of its educational purpose? Or was permission-seeking necessary for this project to succeed and protect the integrity of faculty and university? For many years, this OER was conservative in its approach to third-party material, avoiding making fair use claims on the theory that it was too risky and difficult to prove in the face of an infringement claim. Additionally, being one of the early projects of its kind, there was fear of becoming a target for ambitious copyright holders wanting to make headlines (and perhaps win lawsuits). It was not until 2009 that the Code of Best Practices in Fair Use for OpenCourseWare was written by a community of practitioners who believed that if fair use worked for documentary film makers, video creators, and others (including big media), it worked in open education as well. Once this Code was adopted, universities and institutions were able to offer more rich and complete course content to their users than before. This paper explains how it happened at this early open educational resource offering.

Highlights

In October 2003, the Massachusetts Institute of Technology (MIT) officially launched an ambitious project to offer what it was calling an “open educational resource” (OER). This was after a grand pronouncement in a 2001 article by Carey Goldberg in the New York Times: “Auditing Classes at MIT, on the Web and Free” (Goldberg, 2001)
Why would it succeed where others had failed in the Web educational technology landscape (Arnone, 2001; Carlson & Carnevale, 2001)? Why was MIT giving the content away for free? What if no faculty wanted to participate? What about intellectual property? As Goldberg (2001) wrote, “there is the question of intellectual property, already a thorny one in academia as the promise of Internet riches exacerbates the question of who owns the electronic rights to a professor’s lectures and research.”
As the university’s faculty advisory committee and senior administrators considered the way in which they wanted the OER to be used, it was decided that the principle of allowing users to take advantage of what is known as the “Five R’s” identified by Wiley (n.d.), “retain, reuse, revise, remix, and redistribute,” was the common goal

Summary

ATTRIBUTION:

Unless I decline below to have my name associated with the Materials, MIT will require all users of MIT OCW to attribute any use of any of the Materials in a form that will include my name, my title or status, the year the Materials were created (as indicated on the Materials), and any copyright information (as indicated on the Materials).

STATUS OF COPYRIGHT

STUDENT WAIVER: