A Canadian code of best practices 

 

The Canadian Association of Research Libraries has released the Code of Best Practices in Fair Dealing for Open Educational Resources: A Guide for Authors, Adapters & Adopters of Openly Licensed Teaching and Learning Materials in Canada (CARL, 2024) (the Code). This Code is based on the American Code of Best Practices in Fair Use for Open Educational Resources (Jacobs et al., 2021).

The Canadian Code provides a detailed exploration of how fair dealing might apply in the context of creating and adapting OER. The Code provides a series of case studies of common uses of inserted material in teaching materials, providing a fair dealing assessment for each, as well as considerations to keep in mind, and noting "challenging cases" where fair dealing may be less likely to apply. Appendices add a history of fair dealing in Canada, consideration of other copyright exceptions that might apply to OER, discussion of the inclusion of non-copyrightable works such as data, and additional considerations when working with Indigenous knowledge and cultural expressions.

Cautions and challenges when applying fair dealing in OER

Relying on fair dealing always involves some risk

Fair dealing guidelines outlined for SFU instructors in the Copyright and Teaching infographic do not apply to sharing copied materials outside of your class.

For this reason, creators and adapters of OER should be aware that there is always some legal risk when relying on fair dealing -- it is not a guarantee that the copyright owner won't challenge the use of the work.

To reduce the risk:

• Use openly-licensed or copyright-free content instead wherever possible.
• Or you can link to external resources, which does not require fair dealing or permission. However, as the Code notes, be aware that links are not always stable or permanent.

Relying on fair dealing can create barriers to reuse for more risk-averse users and international users

Using fair dealing to include content in an OER can create barriers to future users and adapters. For example:

• An author can only apply an open license, such as a Creative Commons (CC) license, to their own material. You cannot apply an open license to content included under fair dealing, meaning it can't be reused by others as easily as openly-licensed content.
• Future users and adapters may have to undertake their own fair dealing assessment before using the OER, or at least before including the fair dealing content. 
• Fair dealing or its equivalents are different in each country and some countries do not even have an equivalent. 
• Some institutions, even within Canada, may be more risk-averse and caution instructors against using OER that include fair dealing content. 

These issues and legitimate concerns may prevent others from using or adapting your OER.

The original American Best Practices in Fair Use for OER includes "Appendix four: Educational exceptions and quotations rights around the world," which describes the various ways that different countries' copyright laws may provide exceptions that permit the use of excerpts in OER.

Licensing statements and citations need to be clear

Both the copyright/licensing statement at the beginning of an OER and the captions or citations for included content must clearly indicate that some content is included under fair dealing (as well as indicating if some content is included under different CC licenses). 

This makes it clear to future users and adapters that not all content falls under the open license applied to the OER as a whole, and that they will need to make their own assessments to reuse the content.

Contact and questions

Contact the Copyright Office at copy@sfu.ca with any questions.

References

Canadian Association of Research Libraries (CARL). (2024). Code of best practices in fair dealing for open educational resources: A guide for authors, adapters & adopters of openly licensed teaching and learning materials in Canada. Licensed under CC BY 4.0. https://www.carl-abrc.ca/influencing-policy/copyright/carl-codes-of-best-practice/

Jacob, M., Jaszi, P., Adler, P.S., Cross, W. (2021). Code of best practices in fair use for OER. Licensed under CC BY 4.0. https://cmsimpact.org/code/open-educational-resources/#Code-of-Best-Practices-in-Fair-Use-for-Open-Educational-Resources