Expand your Copyright Literacy 

Opening Up Copyright Instructional Modules from University of Alberta

Code of Best Practices in Fair Dealing for Open Educational Resources from Canadian Association of Research Libraries (CARL)

Available Copyright Resources for Teachers from Council of Ministers of Education, Canada (CMEC)

Unit 2: Copyright Law from the Creative Commons Certificate Course for Educators, Academic Librarians, and Open Culture

(Content also featured on the Home Page)

The following non-legal information primarily reflects the Canadian Copyright Act and will help you better understand some key concepts relevant to open licensing. The external sources listed below can be consulted for more information. Seek legal counsel where legal advice is needed.

What is the Purpose of Copyright?

Beginning with the first copyright law of 1710 (England’s Statute of Anne), a central purpose of copyright is to incentivize creators by offering exclusive rights. An additional purpose is to recognize and protect a creator’s relationship with their work by requiring attribution and preventing modification.

What Legal Rights Does a Copyright Holder Have?

Only the copyright holder has the right to license, reproduce, adapt, distribute, sell, publish, or perform an original work or a substantial part of it. If someone wants to use the work, they need to ask for permission or provide payment.

The creator is not always the copyright holder, as in the case of someone who creates a work as part of their employment duties.

I found it Free Online. Is It Protected by Copyright?

Yes. Unless content is marked as Public Domain, it is protected by Copyright even if it is under an open license. The Copyright Symbol is not necessary in Canada, though some countries do require it. Registration with the Copyright Office is also not necessary.

So Copyright Protection is Automatic?

Yes. Copyright applies to original literary and creative works the moment they are created. Photographs, artworks, student work, videos, sound recordings, blog posts, and Website content are just a few examples. There are some things that are not copyrightable. For example: the expression of specific facts or ideas are protected by copyright, but not the facts or ideas themselves.  To be protected, a work must be original and demonstrate a degree of creativity. It must also be in a fixed format (such as written or recorded).

Are There Limitations and Exceptions to Copyright?

Yes. Legislators recognize the need to balance public interests with the protections of copyright holders. For example, provisions for the visually impaired allow for copying and adaptation.  Most countries also have exceptions for the purposes of parody, criticism, and other uses that may vary by country. In Canada, the Fair Dealing exception to Copyright includes the use of short excerpts for the purpose of education.  

How Might the Fair Dealing Exception for Education Apply to My Own Work?

Fair Dealing is important in your classroom teaching because it allows you to make and distribute copies of short excerpts (such as a chapter or approximately 10% of a work) to your students. Learn more at Councils of Ministers of Education . 

Applying Fair Dealing to Open Educational Resources you create and share online is less widely understood, but the Code of Best Practices in Fair Dealing for Open Educational Resources (Johnson, R., Martin, H. Savage, S. Dickison, J. Ludbrook, A,, Lar-Son, K., 2024) is a key source for learning more.  

Does Copyright Expire?

Yes. In Canada and the U.S, Copyright lasts for the creator’s life plus 70* years (life plus 70). Certain publications may have shorter terms, such those published by the Crown (50 years after publication) or Corporations (under U.S. Law). Upon expiration of copyright, works enter the public domain. Some creators choose to dedicate their works to the public domain at the time of creation, and bypass copyright protection.

*Note: As of Dec. 30, 2022 the general term of Copyright Changed from 50 to 70 years after the death of the creator. Works that entered the public domain prior to Dec. 30 2022 are not affected. 

Are Public Domain Works Free from Copyright?  

Yes. Essentially, public domain works are outside copyright and can be used for essentially any purpose without permission. Attribution of the creator of a public domain work is not required in Canada or the U.S., however it is still good practice.

How is Copyright Related to Trademarks and Patents?

Copyright is just one example of intellectual property is protected. Trademarks allow corporations or organizations exclusive ways to promote and products or services. Patent law gives inventors a limited time to produce and market their invention, in exchange for a release of their ideas after the term ends.

"Copyright Basics" by Beth Cormier is licensed under Creative Commons Attribution Non-Commercial 4.0. 

Canadian educators are likely familiar with the Council of Ministers of Education, Canada (CMEC) Resources on Copyright and Fair Dealing. CMEC offers helpful guidelines for using small amounts of copyright protected work in classrooms in compliance with the Fair Dealing exception to Copyright infringement. 

But how does the Fair Dealing exception apply to the creation and distribution of openly licensed material? 

• Does relying only on on public domain or openly licensed material when creating an open educational resource ultimately limit the pedagogical effectiveness of a teaching or learning resource? 

• Under what circumstances might it be considered "fair" to insert copyright-protected content into a non-commercial, openly licensed work without asking permission from the copyright holder? 

The recently released Code of Best Practices in Fair Dealing for Open Educational Resources assists creators in determining if their intended use of copyright-protected material might be considered "fair".

• The Code of Best Practices was released in 2023 by Canadian Association of College and Research Libraries (CARL)

• It was adapted from its U.S. counterpart, the Code of Best Practices in Fair Use for Open Educational Resources.

The Code discusses the possible application of fair dealing in common scenarios that will arise as open education practitioners author, adapt, and adopt OER. 

The Code 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. The code outlines the basis upon which fair dealing may enable the use in each case. 

A. Using Inserts as objects of criticism and commentary

B. Including inserts for the purpose of illustration

C. Incorporating content as learning resource materials

D. Repurposing pedagogical content from existing educational materials

The code includes principles for evaluating whether a specific use might be fair, based on:

• the purpose of the work 

• the six questions that the courts rely on when assessing fair dealing. 

The Fair Dealing exception in the Copyright Act allows for the fair dealing of copyright-protected material for 8 purposes:

Research - Private Study - Education - Review - Criticism - Parody - Satire - News Reporting

The first five in this list (bolded) are common to educational resources. 

1. The purpose for making the copy. 

Works created for non-commercial purposes are generally likely to be more fair. 

2. The character of the copying. 

Generally, a single, one-off copy is more likely to be fair than multiple and/or widely distributed copies. For OER, this factor will almost always tend towards unfairness because wide distribution is the goal.

3. The amount of work that will be copied. 

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. 

5. The nature of the 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.

This Introduction to the Code of Best Practices in Fair Dealing for Open Educational Resources by Beth Cormier is licensed CC BY 4.0 and is adapted from 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 © 2024 Canadian Association of Research Libraries, licensed under CC BY 4.0 and adapted from the Code of Best Practices in Fair Use for Open Educational Resource available at auw.cl/oer and licensed under a CC BY 4.0 licence, which was facilitated by Meredith Jacobs, Peter Jaszi, Prudence S. Adler, William Cross.