Like its counterparts in other jurisdictions, the US-based OER community aims to produce materials that are as conveniently accessible as possible – and to create opportunities for their adoption and adaptation not only within the US, but in other jurisdictions. This shared objective helps to explain the community-wide preference for the incorporation of inserts (for purposes of critique, illustration, etc.) on the basis of Creative Commons (or equivalently open) licenses, which have world-wide reach, rather on the basis of transactional licensing, which tends to be territorial in scope. Historically, this aspirational bias also has been a factor in concerns about relying on fair use for OER inserts: if this particular exception exists, as such, only in the laws of the US and a large – and, it must be said growing – handful of other countries, could reliance on it actually impede (rather than promote) cross-border flows?
How realistic is this concern? Or, to put it differently, would the copyright laws of other countries also support choices about inserts that US OER authors made on the basis of fair use? It goes without saying that all countries of the world have copyright exceptions for limited, value-added uses of preexisting copyrighted material. But they are expressed differently from one jurisdiction to another. Some inquiry undoubtedly is in order before “porting” an OER from one copyright environment into another, but when it comes to fair use inserts, the practically important question is how onerous the task, and how favorable or unfavorable the results, are likely to be. Based on recent scholarship on comparative copyright law, it seems clear that the inquiry will be fairly straightforward, and the results overwhelmingly positive.
Where to begin the search for relevant legal principles in a non-fair use jurisdiction? The “educational exceptions” authorized in Article 10(2) of the Berne Convention (1971), and in fact provided in many national laws, are a good point of entry. Although it should be noted that in many countries these provisions have not been updated to take account of new applications of digital technology, many do include clauses that allow excerpts from copyrighted materials to be used in “educational publications” generally – thus reaching OER in all formats. Even in jurisdictions that provide no specific allowance of this kind, adopting and adapting OER for strictly intramural use (including – perhaps – those undertaken by way of closed institutional networks) are potentially covered by the nearly ubiquitous clauses authorizing individual teachers’ use of copyright excerpts “for purposes of illustration.”
Moreover, the criteria applied to determine whether particular educational uses of copyrighted material do, in fact, qualify under these exceptions should be familiar to readers of this document: for example, whether attribution was given and whether the extent of the use was proportional to the educational objective. Many national laws also confine these exceptions to non-commercial educational activities – but this is a low hurdle for typical adopters and adapters of OER.
So far, so good. But what about the minority of jurisdictions that lack clear exceptions for educational materials or impose potentially onerous restrictions on those they do recognize? These might include (for example) remuneration requirements, strict quantitative limits, or anti-retention rules. As it happens, there is another (sometimes underappreciated) feature of national copyright laws – the so- called “quotation right” – that may help to fill any gaps and even out any discrepancies where OER inserts are concerned. Unlike educational exceptions, which are merely authorized under Art. 10(2) of the Berne Convention, the quotation right is made mandatory under Art. 10(1), and – one way or another – it is almost universally recognized. In the US, it is not separately articulated because it is folded into fair use, while in the UK it is given expression within the “fair dealing” doctrine. As Professors Aplin and Bently have described, however, Article 10(1):
requires contracting [nations] to permit quotation from a work, and is subject to a series of conditions, the most important of which is that such quotation be in accordance with ‘fair practice’. Importantly, such ‘quotation’ must be permitted whatever the purpose of the use, as long as the material taken is proportionate to the purpose of its user. We suggest that the term ‘quotation’, understood in terms of its ordinary use across the entire cultural sphere, describes a broad range of practices of reuse of copyright-protected material, including in some situations the whole of that material. For sure, the ‘fair quotation’ exception does not encompass every act that currently falls within the US ‘fair use’ doctrine – in particular, private copying and certain technological uses. However, it does require that many transformative expressive uses be permitted if the use is fair, proportionate and appropriately attributed.
As this passage suggests, the criteria for determining whether a particular use falls within the quotation right are likely to be satisfied for an OER insert that has been identified as fair use in the United States pursuant to this set of Best Practices. For example, the UK’s new rules on quotation as fair dealing provide ample justification for the incorporation of copyrighted inserts as objects of critique and as illustrations in OER.
There are a few outlier countries where potential local adopters and adapters of US- made OER should be especially careful about following suit on the inclusion of inserts based on fair use. A striking example is France, where the strong “authors’ rights” tradition has given rise to an especially (if not uniquely) grudging approach to copyright limitations and exceptions. As a consequence, its 2016 law recognizes no exception for educational publications as such, imposes a duty of remuneration on teachers and school using copyrighted works for purposes of illustration, and restricts the quotation right to “brief” excerpts only (in arguable breach of its international treaty obligation to respect the principle of proportionality). Such a deviation from the general norm, in fact, only serves to help “prove the rule” that, overall, fair use inserts in US-made OER should encounter little difficulty under the vast majority of national legal regimes.
- See Jonathan Band and Jonathan Gerafi, Fair Use/Fair Dealing Handbook (May 7, 2013), at https://ssrn.com/abstract=2333863 or http://dx.doi.org/10.2139/ssrn.2333863. ↵
- This is, of course, also true in any situation where assertedly “public domain” material is present in an OER, because (1) rules for the ascertainment of this status differ from country to country, and (2) authors may not always understand and apply those rules correctly. Likewise, due diligence for adopters and adapters might well extend to checking the CC licenses on which “upstream” authors have relied to be sure that they were properly interpreted in the first instance. ↵
- See Daniel Seng’s monumental 2017 Updated Study and Additional Analysis of Study on Copyright Limitations and Exceptions for Educational Activities, at https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=337160, providing an invaluable at-a-glance reference comparing the laws of 136 countries of the WIPO. ↵
- The mandate extends to the 178 countries (out of 195 in the world) that form part of the Berne Union, as well as a few others that have agreed to be bound by the treaty’s substantive norms by way of the TRIPS Agreement, which forms part of the larger 1994 World Trade Organization Agreement. ↵
- The 2014 amendments to Section 32 of the Copyright, Designs and Patents Act 1988 recognize fair dealing for “the sole purpose of illustration for instruction,” as well as for critique and commentary. ↵
- Tanya Aplin and Lionel Bently, Global Mandatory Fair Use (Cambridge University Press 2020), at p. 2 (footnotes omitted). ↵
- Art. L122-5.3(e), Intellectual Property Code (amended by Act No. 2016-925 of July 7, 2016). ↵