This is not the last resort; there are a lot of other decent resorts.

You can always seek permission to use some portion of a copyrighted work. This may be easy or hard, depending on what you are trying to secure. It is true that this can take a bit of time to do, but you only have to do it once. That's a running theme with OER: a little bit of extra work up front and things are a little bit easier in perpetuity. Here are some tips for being successful in your efforts.

Pick Your Battles

Be honest with yourself about what you are trying to do. If a favorite textbook of yours contains a dozen perfect practice exercises that you would like to somehow integrate into your open resource, you're probably not going to be very successful getting the copyright holder to let you reproduce and distribute those exercises under an open license.

Dig Around for the Copyright Holder's Preferred Method of Pursuing Permission

Major publishers often have forms somewhere on their website that you can fill out if you want to reproduce their content in some way. There is usually no "for educational use in an open resource" option to select, and that's either because they don't want that to happen or because OER is still an emerging field. That said, it's worth rooting around on the publication's website for information about permissions, reproduction rights, licensing, or clearance. For example, the New York Times has this information in the "Help" section of its site. This usually won't pop right up, so look patiently. If you don't locate a form, a contact email or phone number may be provided.

Byte: Should you contact a copyright holder by phone, don't consider the verbal agreement binding; instead, follow up with an explicit email or letter sent through the mail.

The contact email method is preferable, since you can send an email containing some quasi-legal boilerplate (see below) that can be easily adopted to your specific purpose. If you're stuck with a form to fill out, be sure to communicate clearly that the use is educational but open and distributed under a specific license (again, see below).

For smaller publishers, contacting the editor(s) directly is sometimes the only option. When you have to contact someone via email, it's good practice to have all of the precise details of your proposed use worked out, so as to be clear in what you are asking and to not waste the poor stranger's time.

Repurpose the Work

It is highly unlikely that any publication will permit the inclusion of a work in an open resource if its educational purpose is the same as its original purpose. For example, an editorial published on a newspaper's website is intended to be read as an opinion essay. If you want to use the editorial in this way, you should just link to it or reference the work in the OER and let the student seek it out on their own. If, however, you want to excerpt a brief passage for practice analysis or to be fashioned into some kind of individual or group activity, and therefore incorporated into an open-licensed work, you are more likely to get the permission that you need. Remember that quoting a copyrighted work is fine when you're a student writing a paper, but, as an educator creating and licensing an open resource, you must secure permission for even this seemingly innocuous usage. Generally, excerpting just a few sentences of a larger work is much more likely to be approved by the copyright holder, since it's more clearly a repurposed use.

Use Standard Legalese in Your Letter

You want to be as specific as possible in describing how, exactly, the material is going to be repurposed, used, and shared. Include a question about how the owner of the material would like to be attributed. WikiEducator's OER Handbook provides sample text for such an inquiry. This language may not be legally-binding, but it is nonetheless a great format for your correspondence.

Don't Give Up So Easily

It is very possible that you won't hear back from the copyright holder the first, second, or even x time that you reach out. Whatever you do, don't quit trying and just put the passage in your work, thinking that you are covered by fair use in that you made significant efforts to authorize your educational use of the material. As previously discussed, that fair use defense could work limited to the classroom, but by creating and sharing an open resource, you are required to secure the permission for exactly that use.

Keep a Hard Copy in a Safe Place

The internet is great and all, and we (hopefully) all know that whatever we send through email is likely stored forever in some way, but don't let the response from the copyright holder just sit in your email to eventually be archived (or expunged, if that's an option). Instead, and we hate to have to recommend the use of paper, you would be well-advised to print both the initial inquiry and the response and keep them in a folder for quick reference, should you need it. This is kind of the, uh, "cover your rear" action that, while most likely not necessary, will provide you peace of mind and physical proof of the response should your email account suddenly become unavailable.