Main Body
1 THE CODE: Principles, Considerations, and Challenging Cases
A. Using inserts as objects of criticism and review
DESCRIPTION
As with all textbooks and educational materials, OER depend on the inclusion of third-party content to enable analysis, critique, and review. A textbook surveying modern poetry will be more effective if its arguments about stylistic trends are supported by discussions of specific poems included for this purpose. A film studies course seeking to develop close analysis skills will benefit from examining the construction of film clips from actual motion pictures. And media literacy students require access to real-world ads in order to master the skills needed to assess the accuracy of the claims of political advertising. Similar examples can be drawn for all academic fields, including social sciences and STEM subjects. Whether the critique is modeled by the OER author, or engaged in by the students, the ability to select copyright-protected inserts and include them as objects of criticism and review ensures that OER can achieve their maximal value.
PRINCIPLE
Including inserts for the purpose of criticism or review will almost always fall within the scope of the fair dealing exception, given that these two purposes are explicitly enumerated in the Copyright Act. Furthermore, as such inserts are specifically selected as objects of critique or review, there is arguably no reasonable pedagogical alternative to including them in the OER.
Once the general purpose of criticism or review has been established, an OER author must still evaluate whether the use of the insert falls within the bounds of fairness. In doing so, the assessment will need to focus on the following fair dealing factors: the specific purpose of the use, the amount of the original work being copied, the availability of any reasonable alternatives to the use, and the impact the use of the inserts may have on the market for the original work.
The amount of a work that comprises the insert should always be appropriate in relation to the pedagogical purpose that it serves. Using an entire poem or illustration may be justified, if it is reasonably necessary in order to perform the intended analysis or critique. But in other cases, only a representative portion of a work, such as a movie clip or excerpt of text, may be required in order to fulfill the pedagogical purpose.
Determining if there are alternatives to the use of a particular insert will also be important in assessing the fairness of the use. If there is an openly licensed or free-to-use4 alternative that fulfills the same pedagogical purpose and enables the same depth of critical analysis and review, the use of a protected insert is less likely to be fair. However, if an OER is addressing a specific text, image, or other object directly – or inviting readers to do so – there is often no equivalent pedagogical alternative to including that item.
Lastly, OER authors will need to evaluate whether the