Main Body
1 THE CODE: Principles, Considerations, and Challenging Cases
A. Using inserts as objects of criticism and review
DESCRIPTION
As with all textbooks and educational materials, OER depend on the inclusion of third-party content to enable analysis, critique, and review. A textbook surveying modern poetry will be more effective if its arguments about stylistic trends are supported by discussions of specific poems included for this purpose. A film studies course seeking to develop close analysis skills will benefit from examining the construction of film clips from actual motion pictures. And media literacy students require access to real-world ads in order to master the skills needed to assess the accuracy of the claims of political advertising. Similar examples can be drawn for all academic fields, including social sciences and STEM subjects. Whether the critique is modeled by the OER author, or engaged in by the students, the ability to select copyright-protected inserts and include them as objects of criticism and review ensures that OER can achieve their maximal value.
PRINCIPLE
Including inserts for the purpose of criticism or review will almost always fall within the scope of the fair dealing exception, given that these two purposes are explicitly enumerated in the Copyright Act. Furthermore, as such inserts are specifically selected as objects of critique or review, there is arguably no reasonable pedagogical alternative to including them in the OER.
Once the general purpose of criticism or review has been established, an OER author must still evaluate whether the use of the insert falls within the bounds of fairness. In doing so, the assessment will need to focus on the following fair dealing factors: the specific purpose of the use, the amount of the original work being copied, the availability of any reasonable alternatives to the use, and the impact the use of the inserts may have on the market for the original work.
The amount of a work that comprises the insert should always be appropriate in relation to the pedagogical purpose that it serves. Using an entire poem or illustration may be justified, if it is reasonably necessary in order to perform the intended analysis or critique. But in other cases, only a representative portion of a work, such as a movie clip or excerpt of text, may be required in order to fulfill the pedagogical purpose.
Determining if there are alternatives to the use of a particular insert will also be important in assessing the fairness of the use. If there is an openly licensed or free-to-use4 alternative that fulfills the same pedagogical purpose and enables the same depth of critical analysis and review, the use of a protected insert is less likely to be fair. However, if an OER is addressing a specific text, image, or other object directly – or inviting readers to do so – there is often no equivalent pedagogical alternative to including that item.
Lastly, OER authors will need to evaluate whether the inclusion of an insert may have a detrimental effect, such as diminishing the sales of the original work. While an OER may be in direct competition with other commercial works (such as textbooks), the inserts included for the purpose of criticism and review are unlikely themselves to impact the value of the original work (e.g., the poem, or film from which a clip has been taken).
In conclusion, fair dealing can enable the use of inserts for the purpose of criticism and review based on evaluation of the factors described above, and subject to the following additional considerations:
CONSIDERATIONS
- Applying fair dealing to inserts for this purpose should generally be restricted to objects or source materials that are being directly examined. When inserts are included to facilitate students practicing critical skills, the OER should include guidance, such as annotations or reflection questions, to demonstrate an objective pedagogical purpose.
- The inclusion of an insert under fair dealing should be quantitatively and qualitatively appropriate. In each instance, consider the scope of the commentary or analysis: fair dealing may justify including an entire work such as a poem if the work in its entirety is being critiqued, but not an entire feature-length film if only a portion is being examined.
- OER authors should consider drawing on a range of source works. The inclusion of inserts from multiple sources is likely to be fair so long as each insert is limited to the amount necessary for the purpose at hand.
- Attribution must be provided for all inserts included for the purpose of criticism and review. While attribution should generally be consistent with the prevailing standards of the discipline, the Copyright Act specifies that the work’s source and creator (author, performer, maker, or broadcaster) must be mentioned when relying on fair dealing for criticism or review. Ethical attribution practice also provides students with a good model for their own use and is essential for future OER adaptation of the work.
CHALLENGING CASES
The use case above contemplates potentially including whole works as inserts, which may lead to an OER containing a number of entire protected works. While the fair dealing analysis discussed above applies to each individual protected work, questions remain as to when and how fair dealing can be employed to create a freestanding OER anthology or collection of protected works. For example, while a selection of poems for use in contemporary literature courses might be permissible according to the Principle and Considerations discussed above, the assessment would (among other factors) depend heavily on how much critical context the collection includes. Projects of this type require discussion with someone who has appropriate copyright expertise to evaluate the advisability of relying on fair dealing or whether permission should be sought.
B. Including inserts for the purpose of illustration
DESCRIPTION
Inserts from various sources and media are regularly incorporated into teaching materials for illustrative use, to anchor what is being taught in tangible examples. A lab photograph may engage the attention of a class studying a classic experiment, just as an iconic news image may galvanize students’ interest in the Canadian labour movement, or clips from a series of Hollywood movies can support an educator’s generalizations about how cultural attitudes toward working women have changed over decades. In these instances (and others including quotations from scholarly articles, literary epigraphs and many more), the function of the inserts is to reinforce and enrich the pedagogical narrative of teaching materials rather than to function as objects of critique. Such illustrative uses of inserts are common and are effectively indispensable to both instructional practice and learning. Typically, illustrative inserts were originally created in non-educational use contexts such as journalism, entertainment, or scientific documentation. Moreover, their learning value is closely associated with their authenticity, so they cannot be effectively “recreated.”
PRINCIPLE
For the purpose of illustration, fair dealing supports the incorporation of thoughtfully selected inserts in all subject matter areas, derived from a full range of sources and media. While illustration itself is not one of the enumerated fair dealing purposes in the Copyright Act, the pedagogical purpose served by including inserts for illustration is aligned with several fair dealing purposes, including research, private study, and education. The next step is to ensure that the use is fair. For illustrative inserts, the critical factors to assess include the real purpose and motive for the use, the amount of the original work being copied, available alternatives to using the selected inserts, and the impact the use of the inserts may have on the market for the original work.
When selecting inserts for the purpose of illustration, the value of the inserts is often derived from their breadth and variety. OER authors should consider the amount they copy from any one source and only use the amount necessary to fulfill the illustrative purpose. Selected materials should also avoid unnecessary repetition or redundancy.
Because inserts for the purpose of illustration often come from materials that were not created with an educational purpose in mind, it may be important to consider whether the use of the work impacts the market for the original work. An author should avoid using a copyright-protected work when an open or free-to-use alternative is available and would serve the same illustrative purpose.
In addition to assessing the fair dealing factors described above, OER authors using inserts for the purpose of illustration will also need to take into account the following considerations:
CONSIDERATIONS
- OER creators should be prepared to explain the intended significance of an illustrative insert in the context of the OER where it appears; such significance may relate to what the insert depicts or describes, its relationship to the text, or the characteristics of the insert itself.
- Likewise, creators should avoid uses that are exclusively or primarily decorative and do not substantially enrich the pedagogical purpose and narrative of teaching materials.
- The extent to which any insert is included should be quantitatively and qualitatively appropriate in light of its pedagogical relevance; thus, a thoughtful analysis might justify including an entire photograph, but only a selected segment of a motion picture.
- Authors should avoid copying multiple inserts from a single source unless there is a clear pedagogical motivation for doing so.
- Attribution should be provided for illustrative inserts, and should generally be consistent with the prevailing standards of the discipline.
CHALLENGING CASES
It is clear that there are many ways in which visual, textual, or musical illustrations can support OER pedagogy, some quite literal and others more oblique. Thus, the use of epigraphs is a well-established fair dealing practice, but introducing chapters in a history text with photos of adorable (but unrelated) photographs of baby animals is unlikely to be fair. And practices that might be acceptable in a classroom setting, with a limited audience (such as the use of topical cartoons to begin a class period) may be harder to justify in an OER context in which the work is made widely available publicly. The question that persists is how persuasive an argument can be made that the insert in question is serving (even indirectly) an identifiable and genuine pedagogical purpose. Seeking permission may be an appropriate option in these cases.
C. Incorporating content as learning resource materials
DESCRIPTION
Across disciplines, students often engage with content to build analytical skills, familiarity, or fluency; this practice-based learning is greatly enhanced if those resource materials accurately reflect what they will encounter outside of the classroom. In an introductory French class, students may be exposed to selected episodes of popular TV shows to better understand how native speakers employ the language, while in an intermediate course they may benefit from being guided through readings of selected essays. Likewise, a political science course may be enriched if students are exposed to the ways theoretical issues are mirrored in newspaper editorials and op-eds. By their nature, inserts of this kind are likely to be protected by copyright. When they are included in primary or secondary learning materials (including textbooks and workbooks), the intended purpose is neither enabling critique nor providing illustration but promoting mastery of the subject matter. Supplying students with essential opportunities to practice their skills and deepen their insights is crucial to the practice of education. Sometimes the materials chosen for this purpose are ephemeral in nature, and sometimes they possess more enduring value; however, in many cases these materials were created for purposes other than educational use. They are often materials that students would not otherwise have encountered, and they should always be contextualized to enhance their value as learning resources.
PRINCIPLE
Fair dealing can enable the inclusion of a wide range of resource materials in an OER that were created for purposes other than educational use, provided their inclusion supports the learning objectives of the OER.
Although the selected resource materials may not have been created with an audience of learners in mind, incorporating them into an OER to further an educational objective will in most cases align with one or more of the fair dealing purposes. Such inserts may be included to facilitate criticism, review, education, research, or private study. Once the purpose of the use has been established, an OER author must then also evaluate whether the use of the insert in this context is “fair”.
When assessing whether their use is fair dealing, it will be important to identify a genuine pedagogical purpose as opposed to, for example, mere entertainment or enjoyment of the source material. OER authors will need to consider the amount they copy from any one source and only use the amount necessary to fulfill the illustrative purpose.
Because these kinds of resource materials are generally not created with an educational purpose in mind, it will be important to also think about whether the use of the work may impact the market for the original. This is more likely to be the case when the use involves major portions of the source work, such that the use could impinge on the market for the original. In such cases, it may be worth determining whether there is an open or free-to-use alternative that might serve the same learning objective.
In addition to assessing the fair dealing factors described above, OER authors using inserts as learning resource materials will also need to take into account the following considerations:
CONSIDERATIONS
- Resource materials incorporated on the basis of fair dealing should include or reference whatever newly authored contextual materials are required to make them accessible and available to students, and (as appropriate) to direct students’ use of them, including glossaries, annotations, study questions, etc.
- Although contemporary or popular appeal may be a factor in the selection of resource materials, authors should be prepared to explain the pedagogical value of each selection beyond its mere entertainment or informational content.
- The extent to which any insert included on the basis of fair dealing should be quantitatively and qualitatively appropriate. In some cases for example, fair dealing might justify incorporating an entire short article that is needed for a student reflection or response, but not a longer text when students are only expected to engage with a portion of the work.
- Wherever possible, resource materials should be derived directly from primary sources, rather than from versions that have been edited or simplified for educational purposes. The rationale for this is, if you’re copying from edited or simplified works, you should also consider the rights of the party that performed the editing/simplification.
- When consistent with pedagogical objectives, the various resource materials incorporated in a particular OER should be derived from a range of sources, rather than from only a few.
- Attribution should always be provided for fair dealing inserts and should be consistent with the prevailing standards of the discipline.
CHALLENGING CASES
Although using items from contemporary popular culture is often permitted for purposes of critique or illustration, members of the OER community may have hesitation about using them in their entirety (music videos for example) as resource materials for a more generalized educational purpose. This concern may stem in part from a perception that these high-profile inclusions are more likely to be challenged, and that it might be difficult to enunciate the pedagogical considerations which were predominant in their selection. In such cases it may be preferable to link to the content (though this may require other considerations) or seek permission from the copyright holder. When considering including inserts from works of contemporary culture in an OER, consultation with someone who has appropriate copyright expertise is recommended.
D. Repurposing pedagogical content from existing educational materials
DESCRIPTION
OER authors may sometimes find that existing educational materials, such as commercial textbooks, study guides or educational videos, contain relevant content that is ideal for inclusion in their OER. In such instances, it may not make sense for authors to substitute openly licensed alternatives or to reinvent the required content themselves. For example, a figure from an older edition of a biology textbook may be the most appropriate illustration of a particular concept to include in an OER on the same subject. Or, instead of recreating a quiz question, it may make sense for an author to use a relevant question from an existing study guide. Fortunately, fair dealing can often enable the use of such inserts, subject to a number of considerations.
PRINCIPLE
Fair dealing can support the selective incorporation of elements from existing educational resources that are no longer in current use or commercially viable.
Inserts taken from existing educational materials such as textbooks, study guides, or educational videos will almost always be selected to further a pedagogical objective, and as such, will fall under one of the broad fair dealing purposes, whether criticism, review, education, research, or private study. But an OER author must also evaluate whether the use of the insert in this context is “fair”.
In the examples provided in the Description above, the content being used is likely to be a small amount when considered as a portion of the entire work. Some inserts may represent such a small portion of the original work as to be insubstantial, in which case, use can proceed without the need for a fair dealing analysis. For more substantial portions, it will be necessary to determine whether the amount used is fair, from both a quantitative and qualitative perspective, in relation to the purpose. Reproducing chapter summaries from a textbook, for example, may not seem like a large portion of the textbook based on word count, but could represent a core component of the book when considered from a qualitative viewpoint.
A fair dealing assessment must also take into account any reasonable alternatives to using the work in question. If an equally relevant insert could be used from a public domain work, or if the use of the insert did not really further the pedagogical goals of the new OER, this might weigh against a finding of fairness. Authors who are carefully selecting inserts from existing educational materials to support the pedagogical objectives of their OER can readily make the case that their choice of insert was deliberate, and that no alternative would have been suitable or equally effective.
Perhaps the most challenging of the fair dealing factors to assess in this scenario, however, is the impact of the use on the market for the original. It is likely when drawing on current educational works that those works may be intended for exactly the same market. As such, the use of inserts from these works could be seen to have a detrimental impact on the current sales of the original. However, there are many potential source works created for educational purposes that have outlived their useful commercial lives but remain protected under copyright law. When assessing the effect of the use on the market for the work, use of content from out-of-commerce works is more likely to be viewed as neutral or tending toward fairness. In addition to assessing the fair dealing factors described above, using inserts from existing educational materials also requires careful consideration of the following:
CONSIDERATIONS
- Fair dealing analysis should begin with an assessment of what parts of the source material copyright actually protects; there are many types of factual information not protected by copyright, as discussed further in Appendix Two.
- As previously explained, copyright flexibilities mean that the subject matter, general organization, and broad choices about coverage reflected in existing learning materials – including those that remain popular – are beyond the reach of copyright protection, and so OER makers can reuse them without needing to undertake a fair dealing analysis.
- Likewise, creators of OER should recognize that the use of short snippets of text from copyrighted sources may be permissible simply because they are not substantial enough to warrant copyright protection, or to warrant a fair dealing evaluation.
- If relying on fair dealing for more extensive borrowings, OER authors should be prepared to explain the specific teaching or learning value of each incorporated item and why it represents the best choice for the intended purpose; justify the extent of the material incorporated in pedagogical terms; and specify in what ways, if any, the material was updated.
- A creator should be prepared to explain why their insert does not function as a market substitute (either because there is currently no market, or because the incorporated work was or is intended for a different market than the OER).
- When possible and as pedagogically appropriate, OER authors incorporating inserts from educational materials should select those inserts from a diverse range of source works rather than drawing on a single work.
- Attribution should be provided for all inserts, a consideration which is of special importance in cases where inserted text may be confused with newly authored text.
CHALLENGING CASES
This Principle reflects the fact that uses of content from educational works that support the pedagogical objectives of the OER can be permitted under the fair dealing exception – provided that they don’t undercut the market for the original. When inserts are drawn from popular, current works that are in widespread use in the education sector, it may be difficult to make a case that their use is fair dealing, particularly if the material is electronic and subject to licensing terms. In these cases, it may be advisable to seek permission (which may require negotiating a licence) from the copyright owner, to permit the incorporation of elements from such materials into the new OER.
Acknowledging Fair Dealing
The OER community is characterized by its commitment to assuring that adoption and adaptation of an existing OER should be as straightforward and transparent as possible. As a result, members of that community have emphasized that when inserts in materials are included in reliance on fair dealing, a clear acknowledgement of this fact would be a best practice.
In Canada, when using material for some fair dealing purposes, namely criticism, review, and news reporting, attribution is actually a legislated requirement. Canada’s Copyright Act mandates that the source, as well as the creator (author, performer, maker, or broadcaster) of a work must be acknowledged in order for a use to be considered fair dealing for these purposes. While this is not a statutory requirement for fair dealing for educational purposes, attribution of the source material should be standard practice when inserts are included in any scholarly works, including OER. In addition to respecting the individual rights of authors and users, acknowledgement that material has been used on the basis of fair dealing is also important for the OER community. As OER are intentionally created with a view to being shared, adapted, and repurposed by future authors, signalling fair dealing provides clarity and certainty for those contemplating adaptations of the OER.
Based on current OER community best practices, direct acknowledgement of each insert included under fair dealing is recommended. This requires labelling inserts included on the basis of fair dealing with a short narrative text that includes the citation to the original work, as well as a fair dealing acknowledgement:
This illustration, from [SOURCE] is included on the basis of fair dealing.
In order to signal to downstream adopters and adaptors of their work the terms under which the content is permitted to be reused, OER authors will assign an open licence, such as a Creative Commons licence, to the completed OER. It is essential that the licence statement for the OER also identifies when individual inserts within the OER may be licensed differently or used on the basis of fair dealing. An example of a licence statement that acknowledges the inclusion of such material (and its exclusion from the OER licence terms) might be:
This work is licensed under a CC BY-NC licence with the exception of content explicitly labeled otherwise.
While it is often useful for authors to maintain their own records of their fair dealing reasoning, it is not generally necessary to communicate this in the OER itself, beyond clearly indicating which materials were original, and which were incorporated from third-party sources. An interested adopter or adapter could request additional information from the maker of the OER materials.
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Footnote
4 This document defines free-to-use materials as those that have no copyright protection or are licensed in such a way that they enable the intended use in the OER.