Weeramuni, L., (2019). How to Fight Fair Use Fear, Uncertainty, and Doubt: The Experience of One Open Educational Resource. Journal of Copyright in Education and Librarianship, 3(1), 1-21. https://doi.org/10.17161/jcel.v3i1.9751
Note: This article was written in a US context, where fair use is a statutory exception to copyright infringement. In Canada, we have a similar legal provision, known as fair dealing.
For reference, section 29 of the Canadian Copyright Act states, “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.” https://laws-lois.justice.gc.ca/eng/acts/c-42/page-9.html#h-103270
Caselaw is used to help assess whether or not a dealing may be fair. At the end of the day, however, only a court of law can determine if a dealing is fair.
Q1: Appendix A of the article is a licence between MIT and MIT faculty members. The licence grants MIT non-exclusive rights to use faculty-created content in OCW. Would such a licence be necessary at your institution? Why or why not? (Hint: IP provisions are usually found in collective agreements. Here is a link to provisions at Alberta colleges and universities: https://docs.google.com/spreadsheets/d/1hklxz1SSFuTEUdWZTILmcTcbYgS2fOrS7RP_0IKu0PA/edit?usp=sharing )
Q2: If the faculty member developing the OER holds copyright in the content they create do they need to rely on fair dealing to include it in an OER?
Q3: What is the source of the “fair use fear” as described in this article?
Q4: What type of institutional supports are needed to implement a fair dealing assessment service for OER like the one in place at MIT?
Q5: No Canadian university or college has institutional fair dealing guidelines that support the re-use of an entire work (e.g., cover page of a book) in an OER. Considering the Supreme Court of Canada’s suggested fair dealing factors, is the use of a book’s cover page, as described in the article, likely to be fair?
Factors to consider when assessing whether a dealing is fair:
(i) The Purpose of the Dealing
(ii) The Character of the Dealing
(iii) The Amount of the Dealing
(iv) Alternatives to the Dealing
(v) The Nature of the Work
(vi) Effect of the Dealing on the Work