In the Code itself, and in Appendix One, we have addressed in some depth how to understand and apply fair dealing and how to understand the limitations of copyright law. However, fair dealing is not the only aspect of Canadian copyright law, and of intellectual property (IP) law more broadly, that can apply to allow the lawful creation of open educational resources. Without attempting to be comprehensive, we offer additional information below about low-risk practices that may help to lighten the burden of legal compliance. We have included copyright doctrines other than fair dealing that may apply to potential OER inserts, as well as some other areas of IP law which may be relevant to the OER community.

Our goal here is to address various areas of potential concern, indicating situations in which the use of an insert may not even require a fair dealing assessment. These include situations in which copyright might seem to apply to a source work but actually doesn’t, such as when the work is in the public domain.

The Public Domain: Materials and Content Not Protected by Copyright

In making a first pass through plans for an OER project, authors may identify content that is seemingly subject to copyright (images, texts, compositions) that they might like to incorporate as inserts, in whole or in part. It’s possible that some of those works may be usable because they aren’t protected by copyright, for one or more reasons.

A work falls into the public domain in Canada when copyright protection has expired. When sourcing material from the internet it is important to note that much of the material is not in the public domain, despite it being publicly available. In addition, copyright protection is assigned automatically upon creation of an original work; therefore, absence of a copyright statement or symbol is not evidence of a work being in the public domain.

Works in the public domain can be freely used without having to seek permission, pay royalties, or rely on Copyright Act exceptions. In Canada, works enter the public domain in a number of ways:

• The general rule is that copyright in a work lasts for the life of the last surviving author, plus an additional 70 years if the last surviving author died in 1972 or later. If the author died prior to 1972 then the copyright term was 50 years past the year of death of the author.

There are exceptions to this rule for certain categories of works, such as:

• Some posthumously published works, which are subject to rules based on the date of the author’s death as well as the subsequent publication date (if any). Works which are published posthumously prior to 1999 expire after whichever is the longer of 50 years after publication or 70 years after the death of the author. And works of authors who died between 1949 and 1999, if not published prior to 1999, are protected whichever is the longer of: until 2049 or until 70 years after the death of the creator.
• Works produced by federal government agencies in Canada are generally subject to Crown copyright, which expires 50 years after publication. Crown copyright is perpetual in government works that are never published. Most works that are subject to Crown copyright may be used for non-commercial purposes, however, it is important to check the source for terms of use. Government of Canada legislation, statutes, regulations, court decisions and tribunal decisions are not protected.
• Sound recordings and non-dramatic cinematographic works remain in copyright for 70 years following the date on which they are made, unless they are published prior to copyright expiring, in which case they remain protected for either 75 years after publication, or 100 years from the date they were created, whichever time period is the shortest.

Putting aside the above exceptions, it’s otherwise safe to assume that a work is in the public domain in Canada if all the authors have been dead for at least 70 years.

Once it is determined that a particular work is in the public domain, it is free for anyone to use and adapt, as far as Canadian copyright law is concerned. But sometimes challenges arise when public domain materials are subject to restrictions based on where they are housed or hosted. For example:

• When the source copy of a public domain work resides in a library, archive, or museum, that institution can dictate terms of use and restrict what can be done with the work, as a condition of access. Often such conditions have nothing to do with copyright, but unfortunately may limit the ways in which the works in question can be used. It is important to note that restrictive terms of use are specific to the institution, and that a copy of the same public domain work, if it can be obtained elsewhere, may be used without having to negotiate with the owner of the original.
• Some institutions may also assert copyright in their own photographs or digital reproductions of works in their collections. However, these claims have little or no merit in the case of verbatim reproductions of flat objects (texts, photographs, paintings, etc.). Photos of three-dimensional objects (like sculptures), on the other hand, are more likely to enjoy some level of copyright protection. In addition to fair dealing, there may be other exceptions available when making use of such works.
• While the focus of this document is on considerations for Canadian creators of OER in the Canadian environment, creators of OER who anticipate global adoption and adaptation may need to give consideration to when materials enter into the public domain in other jurisdictions.

Another category of public domain works that can be used freely and in their entirety, without needing to make any more detailed inquiry are works that consist entirely of data or other factual information arranged in common or well-established ways – for example, a chronological list of reigning monarchs, a table of rainfall statistics, or a pie chart of government expenditures. This is because facts and data, when presented and organized in a simple and unoriginal fashion, are not subject to copyright protection. In other words, a simple data set (or representation of data) is likely to be in the public domain whether it is newly created content or historical data.

While there are cases where Indigenous knowledge may be in the public domain according to Canadian copyright laws, creators should endeavour to seek guidance from appropriate Communities of practice and knowledge sharing protocols. To learn more about the respectful use of Indigenous knowledge, please see Appendix Three: Indigenous knowledge and considerations for inclusion in OER.

Built-in Constraints on the Scope of Copyright

Copyright doctrine also makes it clear that even where a work is protected by copyright, not everything found in it can be protected. In fact, copyrighted sources include more available material than might first be imagined, and a good place to start in assessing the availability of specific content is by asking whether the elements to be used are actually subject to copyright protection.

A basic premise of copyright law in Canada as well as many other jurisdictions is that while copyright may exist in a work, the underlying ideas in a work are not protected by copyright. This is known as the idea/expression distinction – the proposition that underlying discoveries and insights or general themes and abstract concepts are just too fundamentally important to be walled off, even though the specific choices about how to present those ideas using words, sounds, or visual elements may qualify for copyright protection.

For example, an OER author may be inspired by a commercial textbook author’s survey of Canadian history from a feminist perspective to create a set of open learning resources employing a similar theme. The new work in this case would not infringe copyright in the commercial textbook. However, other applications of the idea/expression distinction are more complicated. Suppose, for example, that the author of an OER intended to familiarize nursing students with new medical technology and wanted to quote at some length from the manufacturer’s operating instructions of a particular imaging device – a work that is obviously rich in unprotected factual elements, but which also may contain some potentially copyrightable content that expresses or conveys a particular bit of practical information. In this case, it can be argued that when there are only a limited number of useful ways in which it is reasonable to express a given idea, none of them should be subject to copyright protection.

Perhaps the most important implication of the idea/expression distinction for OER makers can be stated as follows: When drawing on source material that enjoys only thin copyright because it contains high proportions of unprotected content (whether a scientific diagram or the factual narrative of a famous battle), it is generally easy to work around the protected elements by replacing them with original creative content of one’s own. It should be recalled, however, that the protected elements may include the way in which the unprotected information or content was selected and arranged in the original work.

OER creators can also consider the use of a few lines of a work an ‘insubstantial use’ that would not trigger any copyright protection or require the permission of the copyright owner.³⁷ Although not defined in the Act, the concept of insubstantiality has been addressed in case law and considered by the Canadian Copyright Board in their tariff decisions. Furthermore, the Supreme Court has stated that a “substantial part of a work is a flexible notion. It is a matter of fact and degree […] As a general proposition, a substantial part of a work is a part of the work that represents a substantial portion of the author’s skill and judgement expressed therein.”³⁸ Like any use of third-party materials, it is important to properly acknowledge the source of the insert.

Other Copyright Act Exceptions

Canada’s Copyright Act contains exceptions other than fair dealing which may be useful to OER creators wishing to make use of third-party content. Added to the Act in 2012, the non-commercial user-generated content (UGC) provision, also known as the “mash-up” or “YouTube” exception, states that “it is not an infringement of copyright for an individual to use an existing, published work in the creation of a new work if the use/dissemination of the new work is done solely for non-commercial purposes.” Attribution of the source is required if reasonable, and the new work must not have a substantial adverse effect, financial or otherwise, on the exploitation of the existing work (including by substituting for it). This can be understood as a new, if limited, transformative use defence in Canada. The application and limits of the UGC exception have yet to be tested, but it is interesting to note that a non-commercial OER could fit the description of a “new work.”

Additional exceptions for educational institutions were also added in 2012. These included, for example, an explicit exception for works available through the Internet, according to which it is not an infringement of copyright for an educational institution, or a person acting under the authority of one,” to reproduce a work that is “available through the Internet” for “educational or training purposes.”³⁹ This could bring added reassurance to members of the OER community acting for an “educational institution”⁴⁰ when they make copies of or communicate materials that they find lawfully available online in the absence of any notice or digital lock prohibiting them from doing so. Conditions, such as attribution, should be reviewed when considering these exceptions.

Other Areas of Intellectual Property

Trademark Law

Trademark protects brand owners against a certain range of commercial misrepresentations that may cause confusion in the marketplace or depreciate the value of goodwill in the brand. For example, it limits coffee companies other than Starbucks from using in the course of trade a confusingly similar round, green, mermaid logo as their own and it can lead to litigation battles over “swoosh”-like markings on sneakers other than Nike. So, it might be a mistake to use a variant on the name of a commercial textbook publisher to label an OER, even if it is done tongue-in-cheek. On the other hand, most conceivable uses of trademarks in OER cannot trigger concerns of that kind because they aren’t “uses in the course of trade” – designed to sell or promote to or engage customers.

Thus, OER makers should feel confident when:

• including pictures that include trademarked names and logos, if otherwise permitted by copyright law;
• using trademarks in the context of providing realistic examples or question prompts; or
• directly examining marketing or branding.

OER makers should avoid, when possible:

• using trademarks in a way that might suggest sponsorship or branding on a cover of a resource, or in its naming or marketing;
• choosing trademarks related to only a single brand, when creating new examples and hypotheticals; and;
• using visual marks for strictly decorative purposes unrelated to the pedagogical purposes of the OER (which may also infringe copyright).

Patent Law

Just as trademark law operates only in a narrow range of commercial practices, the same is true of patent law. Unless the work is “practising” a patented invention or directly encouraging others to do so, this type of use is not operating within the area that patent law controls. Patent law controls the right to make, sell, or use an invention, not to depict, describe, or teach about it. The only theoretical risk would be liability if the work encourages others to infringe a known preexisting patent – a highly unlikely case in teaching materials. Furthermore, remedies would be available only if a patent owner suffered meaningful financial harm as a result, making it even harder to imagine how teaching materials could give rise to a patent suit.

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Footnotes