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While Open CourseWares (OCWs) have been an important venue for publishing open educational resources (OERs) to the world, there are no current OCW initiatives that make any fair use claims in their materials. For example, when a MIT professor uses a photo of a giraffe as an object in one of her courses, if permission cannot be obtained or an open content replacement found, the media must be removed from the OCW course before it is published on the web. Fair uses of copyrighted content within the classroom is strong, but it’s a shame that rich content gets stripped away because we are not supporting a fair use to it.

In an interview, MIT’s Henry Jenkins explains his take on the problem:

I believe in OCW’s mission, but MIT’s leadership is flawed because it is unwilling to make OCW entirely fair use. We should be defending a notion of fair use that allows materials to be widely circulated. I want to be able to represent fairly my use of other people’s materials in my courseware. We haven’t gone far enough with thinking about what it means to be the center of a participatory culture. This is why I haven’t put my courses on OCW yet.

While we can argue about the pedagogical merits of needing the specific photograph of the giraffe, fair uses of copyrighted content becomes essential in Jenkin’s case — here, the use of contemporary copyrighted content is central to media literacy and media studies programs. Copyright law says that it’s cool for Jenkins to use copyrighted content within the confines of the classroom, but MIT OCW says that this same protection does not transfer to the OCW site.

We at Michigan have been exploring how we can work to support fair uses within the OCW framework. There are many, many questions. We’re aiming to have an OCW/OER & Fair Use Workshop sometime in March 2008. I’ll have more later, and we’re looking for input from others involved in this interesting and important topic.