Open educational resources (OER) are openly licensed¹, freely distributed educational materials that advance a wide range of goals within the educational system. They enable flexible and open pedagogy, support equitable access to academic authorship, facilitate representation of different student experiences, and reduce the cost barriers associated with high-quality learning materials. Creators and adopters of OER are often motivated by a shared commitment to increase access to materials and to contribute to the common good.

If OER are to fully achieve their pedagogical, pragmatic, and social functions, OER creators must have the ability to responsibly incorporate and reference copyright-protected works. They must not be constrained to only what commercial publishers choose to offer and the formats they choose to offer it in, nor should obtaining permission or a licence be the only consideration when it comes to the allowable use of content that has a clear pedagogical goal.

For many OER creators, however, a lack of familiarity with copyright law and its application can result in uncertainty, and even anxiety, when it comes to incorporating third-party materials into their work. Commonly referred to as copyright chill, this is further exacerbated for OER authors who do not have access to specialized copyright support to assist them with questions as they arise, and for whom the prospect of doing their own copyright research may be daunting. Time pressures may also contribute to the reluctance to tackle copyright related questions, and as a result, they may decide to avoid the use of any copyright-protected materials in their OER. This may result in a reliance on Creative Commons or other openly licensed content, which may be adequate but less than ideal in terms of the pedagogical objectives of the OER.  In many cases, a creator may need to examine, critique, or analyze a specific work, and only by including relevant portions of that work can the examination be effective.

Fortunately, it is possible for OER creators to make judicious and legally defensible decisions about the content they wish to use in their work. Canada’s copyright law is structured to balance the rights of copyright owners with those of the users of copyright-protected works; as such it contains numerous exceptions to enable a range of permissible uses. In particular, the fair dealing exception provides a broad and flexible user right intended to facilitate the use of copyrighted materials for purposes such as education, private study, research, criticism, and review – all purposes which are relevant to the creation of an OER.  Judicial decisions over the past two decades have provided much clarity with respect to the application of fair dealing principles, particularly in educational contexts.  Furthermore, most educational institutions in Canada have adopted fair dealing policies or guidelines which provide sound guidance on using copyright-protected works fairly for educational purposes.

The Canadian Context

This Code, adapted from its U.S. counterpart, the Code of Best Practices in Fair Use for Open Educational Resources (U.S. Code), explores the legal and practical application of fair dealing in the context of OER creation in Canada. While there are similarities, in both purpose and scope, between the U.S. fair use exception and Canadian fair dealing, the two doctrines are not identical. By providing Canadian legislative and legal context and relevant practical examples, this adaptation provides an effective model for the application of fair dealing to OER in Canada. Generally, fair dealing guidelines used at Canadian educational institutions are intended to apply to instructional scenarios in which the audience is limited. However, the fair dealing exception in the Copyright Act is relevant to a broader range of use cases. This Code describes clear, well documented, and reliable ways to evaluate fair dealing specifically in the context of OER creation. It draws extensively on Appendix Three of the original U.S. Code, written by Canadian legal scholar, Dr. Carys Craig, to whom we are indebted. The Canadian version has also benefited from the in-depth and robust consultation process undertaken by the authors of the U.S. Code. Our hope is that this Code will empower Canadian creators and adopters of OER to make use of fair dealing, while also fostering institutional and legal support for doing so.  

The benefits of incorporating selections of third-party copyrighted material – what we call inserts in this document – into an OER are significant. The ability to draw on a wide range of relevant resources, regardless of their copyright status, ensures the development of high-quality educational resources that effectively meet the specific learning objectives identified by their creators. When compared to their commercial counterparts, these quality resources are easier to keep accurate and up to date and more likely to be widely adopted and adapted by other educators, thereby positively impacting greater numbers of students. The use of OER in preference to commercial educational resources removes significant barriers to access for students while fostering a superior learning experience.  Not only are students provided with immediate, affordable access to the learning materials they require, but those materials can be tailored to address specific course objectives, teaching approaches, or contexts, and to ensure access and suitability for diverse audiences, including students with disabilities and those from marginalized communities.

This Code will support practitioners in making reasoned decisions when incorporating copyright-protected works into OER creations. It is intended to facilitate discussion and a deeper understanding of the fair dealing right as it relates to OER in Canada. The Code is a practical guide that will complement institutional copyright policies, procedures, and resources. It is a tool to assist OER creators and adapters with making informed assessments regarding the use of copyright-protected works in OERs. Users of the Code should also consult with institutional copyright offices or experts, if available, as needed.

Open Educational Resources, Inserts, and Universal Access

Consistent with the U.S. Code, this Canadian adaptation uses the term inserts to identify an excerpt of protected work from a third-party source that educators may wish to incorporate into an OER. For example, inserts could include an image, figure, text excerpts, video, or audio clip.

In developing the U.S. Code, the authors consulted with a broad cross-section of OER professionals (authors, advisers, librarians, instructional designers, publishers, network organizers, adopters, and more), who collectively made the following observations with respect to the use of inserts:

• the strategic use of inserts can provide crucial support for pedagogical goals by making OER clearer, more engaging, and more persuasive;
• the use of appropriate inserts can also help make OER more accessible to learners with varying backgrounds, circumstances, and abilities;
• concerns about copyright compliance may lead OER makers to feel constrained to use only Creative Commons-licensed inserts in their works. However, the kind and range of materials that are available on this basis means that their choices often fall short of fulfilling their pedagogical goals;
• concerns about copyright compliance may also limit OER makers’ use of inserts altogether, driving practices such as linking out to sources rather than incorporating them. This reduces the effectiveness and durability of OER and poses particular risks to students with disabilities and students who face other access barriers.

OER and Accessibility

The open education community is generally committed to principles of accessibility and strives to ensure OER are accessible to learners with varying backgrounds, circumstances, and abilities. However, OER creators may unwittingly undermine the accessibility of their work in an effort to stay within the limitations of fair dealing. For example, they may decide to simply reference, or provide a link to, a third-party resource rather than incorporating the desired material directly into the OER, because they perceive linking as being safer, even if it is less reliable and less pedagogically satisfactory. Besides the obvious practical reasons to prefer incorporating inserts over linking to them – links can break or change, sometimes they take students to unintended places, and they are not usable in an offline environment – there are principled ones as well. Making OER accessible to students with perceptual disabilities is both a necessity and a pedagogical opportunity, and it is not adequately met by reliance on linking.

Educational institutions in Canada have ethical and sometimes legal obligations to make resources universally accessible to their communities. The theory of universal design teaches that when objects of any kind – from chairs to textbooks – are engineered to reach people with accessibility needs, the result is frequently that they become more useful to others, as well. Fair dealing supports educational institutions in realizing their accessibility commitments and fulfilling their broader pedagogical goals. While there may sometimes be good prudential reasons for OER makers to forgo exercising their fair dealing right, the benefits of risk avoidance must be weighed against the potential costs. Understanding the scope and flexibility that the fair dealing exception offers can help with the risk-benefit analysis and ensure the fulfillment of the author’s core mission – making the best possible OER available to the broadest range of learners.

Behind the Code: Copyright Flexibilities and Fair Dealing in OER

Before beginning a fair dealing assessment, it is important to first consider the numerous copyright flexibilities that favour broad dissemination of information. Among them is the idea/expression distinction which has the effect of assuring that ideas (i.e., the facts, theories, and concepts embodied in copyrighted materials) are always available for reuse. Similarly, content that is in the public domain, either because its copyright has expired, because it does not warrant copyright protection, or because the creator has opted to dedicate their work to the public domain, is generally free for an OER creator to use from a copyright perspective. Also, free to use are small portions of a work which are insubstantial (in amount and significance) when considered in relation to the rest of the work and which therefore do not require a fair dealing assessment. For example, depending on their quantity or quality, very short snippets or quotes from protected material may be considered insubstantial. Appendix Two of this Code provides additional detail about types of content that may not be subject to copyright protection and are therefore available for re-use without needing to consider fair dealing.

However, if other copyright flexibilities have been considered and rejected, conducting a fair dealing assessment will allow an OER creator to evaluate if their use of an insert is “fair”. The following information serves as a practical guide to assessing fair dealing for inserts in the OER context. For a more thorough explanation of fair dealing, including important details about its history and evolution in the Canadian context, see Appendix One.

Fair Dealing in Canada

User Rights, of which fair dealing is the most expansive, are an integral part of copyright law in Canada. The fair dealing exception in the Canadian Copyright Act allows creators a limited right to copy and communicate protected works without permission or payment, if certain qualifying factors are met. The courts have identified two steps when evaluating whether the use of a work might be considered fair dealing:

Step 1:

The purpose for using the work must be for one of the eight fair dealing purposes specified in the Copyright Act: research, private study, education, parody, satire, criticism, review, or news reporting. In step one, the purposes are to be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.

Step 2:

The use of the copied material must also be fair. The courts have introduced and consistently applied several factors as a framework for assessing whether a dealing was fair. These factors include: why the copy was used, how widely the copy is being made available, the amount of the work being copied, the nature of the original work, whether there was any reasonable alternative to copying the work, and the impact of the copying on the market for the original work.

Most material that is inserted into an OER – to further a pedagogical purpose, not merely as a decorative or entertaining addition – will fall under one of the allowable fair dealing purposes listed in Step 1 above, such as education, private study, criticism, or review.

However, Step 2 of the fair dealing assessment requires that the user also evaluate whether their specific use is fair. While the Supreme Court of Canada has established that the threshold for the first step is relatively low, it is the second step where the rigorous fair dealing analysis takes place. The Supreme Court of Canada has identified the following six factors in the second step to determine whether or not the dealing is fair.

The six factors are:

1. The purpose for making the copy. Having addressed the broad purpose in step one, this factor examines the user’s real purpose or motive in reproducing or distributing a work. Works created for non-commercial purposes are generally likely to be more fair. When determining the purpose, the predominant perspective is that of the end user (e.g., the student, in the case of an OER). The copier’s purpose is not irrelevant, but the maker of an OER is unlikely to have a separate purpose or ulterior motive that makes the dealing unfair.
2. The character of the copying. This factor reviews the intended use of the work. Generally, a single, one-off copy is more likely to be fair than multiple and/or widely distributed copies. This factor will almost always tend towards unfairness in the OER context as discussed below.
3. The amount of work that will be copied. This factor assesses the amount or proportion of the work used in relation to the purpose of the use. A small portion tends to be more fair than a large portion of a work. No more of the work should be used than is reasonably necessary to achieve the purpose of the dealing.
4. Whether there are alternatives to copying. Copying of a work is more likely to be fair if there are no reasonable alternatives to doing so. When copying content for inclusion in an OER, carefully curated selections used for pedagogical purposes will tend towards fairness. If the pedagogical point could have been made effectively without using the copyright-protected work, this will tend towards unfairness. Additionally, it is not necessary to acquire a work that is available under a licence or subscription as an alternative to copying the work.
5. The nature of the work being copied. This factor examines the type of work being copied. Copying works that are not confidential or were intended to be widely shared is more likely to be fair.
6. The effect of the copying on the market for the original work. This factor assesses any impact the copying may have on the commercial market for the original work. Copying will tend to be fair if it has no detrimental impact on sales of the original.

It is important to work through all six factors when determining if fair dealing enables the inclusion of a selected insert in an OER. And it is critical to note that not all factors may apply nor be equally weighted with respect to each insert’s use case. Some factors may be neutral, neither fair nor unfair, while others will clearly tip the balance. For example, as noted in the description of the six factors above, the character of the copying in the context of OER will almost always tend towards unfairness. This is because in order to achieve the underlying objective of making OER available without restriction, wide distribution is not only inevitable but pursued. Conversely, the purpose factor should consistently tend towards fairness because the inclusion of inserts in the interests of furthering a pedagogical goal will easily fall within the fair dealing purposes of criticism, review, education, or private study. The Code section below covers four Principles that reflect best practices when applying fair dealing to inserts selected for inclusion in an OER. The Principles were originally identified in the U.S. Code consultation process but are equally relevant to the Canadian OER environment.

Applying This Code

The Code discusses the possible application of fair dealing in common scenarios that will arise as open education practitioners author, adapt, and adopt OER. It identifies four use cases, based on the nature of the work from which an insert is drawn, as well as the pedagogical purpose for which the insert is being used, and outlines the basis upon which fair dealing may enable the use in each case.

Each of the sections of this Code has been adapted from the U.S. version of the Code to reflect best practices in the context of Canadian law. Each scenario, or section of the Code, is organized under the following headings:

Description: provides details about the type of insert, the purpose for including it in the OER, its function with respect to the pedagogical goals of the OER, and relevant examples.

Principle: evaluates the availability of fair dealing to enable the lawful use of the described inserts, based on the outcome of a fair dealing assessment. A brief explanation of the fair dealing factors most applicable to this scenario, as well as how to assess them, is included. The Principle reflects best practices identified by the OER community when assessing the fairness of a use in relevant scenarios, and is subject to important considerations.

Considerations: lists important contextual factors that are integral to the application of fair dealing as described in the Principle. These considerations provide additional detail and nuance that may help a practitioner ensure their use is in keeping with fair dealing principles.

Challenging Cases: provides examples of one or more use cases which may require special attention when evaluating fair dealing or which may not fit clearly within established fair dealing best practices.

The Code does not describe all situations in which fair dealing might be available to the OER community. Likewise, some inserts can be analyzed under more than one of the Code’s use cases, and inserts that are included in OER may serve multiple teaching purposes. The Code’s Principles and Considerations are also subject to interpretation, and it is expected that members of the OER community will apply and adapt the approaches outlined in the Code to new situations as they arise.

Technological protection measures or digital locks, as they are commonly known, are software or mechanisms by which copyright owners restrict access. They must not be circumvented or broken in order to access and incorporate content into an OER under fair dealing. For example, watermarks may not be removed from images, and it is not permitted to rip copy protected DVDs in order to reproduce the content.

Moreover, works that are made available behind a paywall or via personal subscription services such as Netflix, Disney+, copies of electronic textbooks, or even institutionally licensed journal and eBook content, will have terms and conditions that apply to their use. It is important that OER creators review the terms of use for any subscription-based or licensed materials that they intend to include in an OER because they may prohibit uses that are allowable under fair dealing.

The Canadian Copyright Act requires that the original source be mentioned when fair dealing is applied for the purposes of criticism, review, and news reporting. Also, if given in the source, the name of the author should be mentioned. While attribution is not a requirement for every fair dealing purpose, academic best practices support the inclusion of an acknowledgement when using third-party content in a work. Beyond professional standards, clear referencing of inserts in OER serves to eliminate ambiguity for other educators who may subsequently adapt or repurpose the work.²

Canadian law also grants moral rights protection to creators. Authors have the right to protect their reputation as well as the integrity of their work. They also have the right to be associated with the work as its author, or to use a pseudonym, or remain anonymous. These rights last for the duration of the term of copyright. Notably, fair dealing is not a defence to an infringement of moral rights. Within the context of OER creation, providing attribution for inserts in accordance with the best practices set out in this Code will be unlikely to result in any moral rights violation. And while the integrity right can prevent the distortion, mutilation or modification of a work, or its use “in association with a product, service, cause or institution,” this right is violated only if such use is “to the prejudice of its author’s honour or reputation.”³

This Code uses practical examples to apply a fair dealing analysis to materials both familiar and emergent. The Principles should serve to encourage constructive discussion with colleagues and support established institutional and other applicable copyright guidelines or collective agreements. It is not the intention of the Code to create rules of thumb, bright-line rules, or other decontextualized decision-making shortcuts such as percentages of a work or word count that is permissible to include. Rather it emphasizes the importance of the OER author’s professional judgement in assessing the fairness of a use in relation to the pedagogical goals of the OER. Finally, just as this Code is not exhaustive, it is also not mandatory since authors and institutions may choose not to claim the full scope of their fair dealing rights for varying reasons. However, it is useful and important to know what those rights are before any risk management decisions are made.

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Footnotes