Fair dealing and OER: Pathways to using copyrighted content

What is fair dealing?

Fair dealing is a users’ right in copyright law permitting the use of a copyright protected work under certain circumstances, without the permission of the copyright owner or any payment of royalties. The fair dealing exception in Canada’s Copyright Act allows the use of copyright protected material for the specific purposes of research, private study, education, satire, parody, criticism, review, or news reporting, if what you do (the “dealing” with the work) is fair. What is fair will depend on the circumstances and courts will normally consider factors including:

• The purpose of the dealing (commercial uses are less likely to be fair than non-commercial and educational uses).
• The character of the dealing (ongoing, repetitive use or broad distribution are less likely to be fair than a single use for a limited audience).
• The amount of the dealing (a large excerpt or use of the whole work is less likely to be fair than use of a smaller excerpt).
• Alternatives to the dealing (if a different work could have been substituted that is less likely to be fair than if the specific work is required).
• The nature of the work (use of confidential work is less likely to be fair than use of previously published work or work whose dissemination is in the public interest).
• The effect of the dealing on the original work (a use that may impact the market for the original work is less likely to be fair than a use that does not compete with the original). 

See the FAQ What is fair dealing and how does it relate to copyright? for more information about fair dealing and the assessment of these factors.

The higher education sector in Canada has developed fair dealing guidelines to assist instructors in applying fair dealing to copy materials for teaching. You may be familiar with the “10% rule” and related guidelines, which are outlined in SFU’s Copyright and Teaching Infographic.

However, when you create an OER the goal is for it to be shared beyond the classroom and reused by others, possibly for purposes completely outside of formal education. The fair dealing guidelines don’t extend to this broader use and fair dealing would need to be assessed case-by-case every time copyright protected material is included in an OER.

Best practices in fair dealing for OER

To support creators seeking to incorporate copyrighted materials into their Open Educational Resources (OER), the Canadian Association of Research Libraries has published a comprehensive guide on the application of fair dealing in this context: Code of Best Practices in Fair Dealing for Open Educational Resources (CARL, 2024) (the Code).

The Code addresses four use cases in which incorporating copyrighted materials in OER may be possible under fair dealing:

1. Using inserts as objects of criticism and review.
2. Including inserts for the purpose of illustration.
3. Incorporating content as learning resource materials.
4. Repurposing pedagogical content from existing educational materials.

In addition to a description of each use case, the Code includes “Principles” (evaluations of how fair dealing might apply to each case), along with contextual considerations, and examples of challenging cases which might require additional nuance. For example, OER creators may encounter cases where providing a link to a copyrighted work is more suitable than reproducing it, although the Code acknowledges that linking to works comes with its own set of challenges (for example, the link may eventually break). In some cases, seeking permission from the copyright holder remains the most suitable option, and we’ll say more about that below.

There are some cautions to keep in mind when following CARL’s best practices. First, relying on fair dealing always involves some risk. A copyright owner can challenge your interpretation of fair dealing, and only a court can determine definitively whether fair dealing applies. Using openly licensed or copyright-free content will reduce the risk. Second, remember that fair dealing and other copyright exceptions are established by each country in its own copyright laws, and they vary from country to country. It can create extra work for users in another country to assess whether their exceptions apply to content you included under fair dealing. And third, the open license you apply to your OER won’t apply to any content included under fair dealing. Therefore, citations and licensing statements in your OER need to be very clear about what content is included under fair dealing, so that future users know what additional assessment they might need to do.

When to seek permission

There will certainly still be situations in which you would need to request permission from a copyright owner to include their work in an OER. Any content that does not serve one of the specific fair dealing purposes (research, private study, education, satire, parody, criticism, review, or news reporting) or does not satisfy the fairness analysis would require explicit permission to use. This might be the case, for example, if you include an image for aesthetic reasons such as to break up the text on a page, rather than for pedagogical reasons.

Another situation where you may not be able to consider fair dealing is when the content you want to use is from a source that you accessed through a subscription or similar agreement. If any contract, agreement, or subscription terms apply to the content, those need to be followed regardless of whether fair dealing might apply.

Other reuse considerations for OER – appendices from the CARL Code

An appendix to the Code, Beyond Fair Dealing – More Good News about Copyright for OER, discusses additional exceptions and limitations in copyright law which can further support the use and creation of OER. It highlights the importance of understanding these provisions to maximize the benefits for educators and learners.

Another appendix looks at Indigenous Knowledge and Considerations for Inclusion in OER. This section emphasizes the importance of respecting and appropriately including Indigenous knowledge, including the need for collaboration with Indigenous communities, recognizing intellectual property rights, and ensuring that knowledge is represented accurately and respectfully. The section also discusses the ethical considerations and best practices for incorporating Indigenous perspectives into educational materials.

Creating, adopting, and adapting OER at SFU

The CARL Code of Best Practices in Fair Dealing for Open Educational Resources can be found in PDF and Pressbooks formats, in English and French, on CARL’s Codes of Best Practice webpage.

Upcoming event for Open Access Week

Consider joining the new SFU Open Education Community of Practice to explore and learn about using OER and open educational practices with a group of supportive colleagues. Attend the launch event at 10am on October 23rd to learn more

Additional Library resources for OER

Interested in using OER in your classes? Get help from SFU Library on finding and evaluating OER, and learn how you can create an open textbook with resources from BC Campus. 

Learn more about SFU's commitment to open education by reading a previous Radical Access blog post on the SFU Senate endorsing a statement in support of open educational resources (OER) and open education back in June 2022.

Our Digital Publishing team provides support for in-class publishing projects – please get in touch! 

The SFU Copyright Office provides copyright support for instructors and authors. Contact us with any questions.