note: Author - Steve Foerster, "Fair Use as a Complement to Open Licensing". Originally submitted November 14th, 2007 to the OSS and OER in Education Series, Terra Incognita blog (Penn State World Campus), edited by Ken Udas.
The open educational resources movement has long concentrated on the use of licenses to turn material that is copyrighted and permanently transform it into material that is free for anyone to use, copy, and modify. These licenses depend on copyright to work, in that the work has all of the normal entitlements of copyright attached, only some of which the author reserves.
Advantages of licenses include that they are easy to understand; that it's clear what they forbid, permit, and require; and that they have at least some legal standing no matter where in the world one wishes to use the material they cover. A different concept that also relies on copyright is the American legal doctrine of fair use of copyrighted materials. This doctrine states that there are certain circumstances in which it is legal to use copyrighted materials without the permission of the copyright holder.
Fair use came about from federal court decisions in the nineteenth century that sought to balance the entitlements provided by copyright legislation with the interest of free speech specified by the first amendment to the U.S. Constitution.
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