Open textbooks fill digital shelves by Province of British Columbia (CC BY-NC-ND 2.0)

Open textbooks fill digital shelves by Province of British Columbia (CC BY-NC-ND 2.0)


Misleading on Fair Dealing, Part 9: The Remarkable Growth of Free and Open Materials

“Free” materials for educational purposes are sometimes derided as sub-standard works based on the premise that you get what you pay for. Inherent in the argument is that value is associated with cost and that turning to materials without cost means relying on materials without value. Yet the reality is that free materials are free as in “freely available” with the costs of production or business models that support those works rivalling conventional publication approaches. Free or openly available materials are not outliers. For example, the University of Guelph told the Industry committee that 24 per cent of materials in their course management systems consisted of open or free online content.

The series on misleading on fair dealing continues with an examination of freely available materials, including four sources: public domain works, open educational resources, open access publishing, and hyperlinking to third party content (prior posts in the series include the legal effect of the 2012 reforms, the wildly exaggerated suggestion of 600 million uncompensated copies each year, the decline of books in coursepacks, the gradual abandonment of print coursepacks, the huge growth of e-book licensing, why site licences offer better value than the Access Copyright licence, my opening remarks to the Standing Committee on Canadian Heritage, and transactional licensing).

Public domain

Despite efforts by some to dismiss its value, the widespread use of public domain works within Canadian classrooms underscores its continued relevance. The Ontario Book Publishers Organization published a study last year funded by Ontario Creates on the use of Canadian books in English classes in Ontario Public and Catholic schools from Grades 7 to 12. The study surveyed teachers and school boards on which books (including novels, short story collections, creative non-fiction, poetry and plays but not textbooks) are taught in English classes. The goal was to see whether Canadian books were included in class lists. The survey generated hundreds of responses (27 from school board participants and 280 from the Ontario Teachers Federation) resulting references to 695 books by 539 authors.

Working with Sydney Elliott, one of my research assistants, we reviewed the OBPO data to identify the presence of public domain works in Ontario classrooms (ie. the use of works for which the term of copyright has expired). The results were striking as the data confirms that public domain books are an essential part of the English curriculum. Of the top 20 titles, half are in the public domain today or will enter the public domain within the next few years. William Shakespeare is unsurprisingly responsible for many of these titles, but he is not alone. Other very popular public domain works include books by F. Scott Fitzgerald and George Orwell along with books by John Wyndham and John Steinbeck that will enter the public domain in Canada by the end of the decade.

The importance of the public domain within the classroom extends far beyond the most popular works, however. The survey identified 99 books that received at least four separate mentions from respondents. Of those 99 books, 20 are in the public domain and two more will enter the public domain shortly. This covers a wide range of additional authors including Huxley, Conrad, Shelley, Bronte, and McNamee. These books are widely used as they represent 35% of the total mentions. Expanding even further to the entire list of 695 books, 96 are in the public domain or about to enter it.

It should be noted that there was another large category of works currently used in Canadian classrooms beyond the nearly 100 public domain titles. Our review identified another 27 titles that are scheduled to enter the public domain within the next 20-25 years including works from authors and poets such as Agatha Christie, J.R.R. Tolkein, and W.H. Auden. These works – which appear regularly on class lists – would be directly affected by copyright term extension agreement in the new NAFTA that will lock down works from the public domain for decades. The copyright term extension represents a significant shift in Canadian copyright that requires a re-balancing as part of the current reform process.

Open Educational Resources

The BC government became the first Canadian province to launch an open textbook initiative in 2012, committing to 40 new online, open textbooks for 40 popular post-secondary courses. The initiative has since grown and been emulated in other provinces. For example, the Ontario government launched a new Open Textbook Library for Ontario in 2016 that will feature hundreds of openly licensed, professionally created textbooks providing students with access to free digital texts in dozens of university and college courses.

As governments increasingly recognize the importance of investing in open education to support learners at all stages of their lives, publishers have taken note of the changing market dynamics. A 2017 report prepared for the Association of Canadian Publishers acknowledged:

The OER movement continues to grow and is becoming a cornerstone of the Canadian K–12 educational system. The proliferation of OER content is evident across the country and there are numerous initiatives that support the development, access, and distribution of content.

Described in the Access Copyright commissioned report from PWC as a “threat”, the open textbook model provides a cost-effective alternative to expensive textbooks and licences. Indeed, internationally, SPARC estimates there has been more than $1 billion saved through open educational resources. The works are paid for, but once created, can be freely used and modified without the need for further licences, payments or permissions. This also provides a strong rebuttal to those who suggest that open textbooks may be inferior to the pricey, publisher versions. The open textbooks are written by teaching professionals, peer reviewed, and professionally developed in the same manner as commercial textbooks. The difference is that once created, they can be freely used, reused, and modified.

The impact of open educational resources is being felt at universities across the country.  For example, UBC reports:

Since 2011, at least 155 UBC courses have been identified as using open textbooks, OERs, or freely accessible resources instead of traditional textbooks. And if we look across those past six years, 47,423 UBC students were enrolled in those courses using open resources. The estimated cost savings for students has also increased over the past few years. The replacement of traditional textbooks with open resources has potentially saved UBC students between $4.7 to $6.7 million since 2011.

The province-wide estimates from the BC Campus are even higher, with student savings of nearly $10 million, almost 100,000 B.C. students using open textbooks, and nearly 500 faculty adopting the open textbooks.  Other studies provide similar numbers. The University of Saskatchewan says it use of open textbooks has saved 2,750 students a total of $275,00 in the 2016-2017 academic year, and more than $400,000 since it first launched in 2014. A study by David Annand and Tilly Jensen projected cost savings of $217,500 per year for the University of Athabasca, based on using an open textbook for an introductory financial accounting class (of 1,500 student enrollment) alone.

The shift toward open educational resources represents a win-win-win-win scenario: free textbooks for students, reduced long-term costs for education and government, financial support and compensation for creators of the texts, and high quality, Canadian materials freely available for use by teachers across the province.

Open Access

As open access publishing grows in popularity – the European Union has announced plans to ensure that all publicly-funded scientific papers will be freely available by 2020 and Canada now has a similar open access policy in place for government-funded research – the majority of new research publications will soon be freely online and accessible to all. This should be celebrated as it creates equality of access and better ensures that the work of researchers is made available to everyone, including teachers and students.

The role of open access licensing is particularly important, since the public has effectively already paid for many of the publications by funding research and researchers. Further, the continued growth of open access reflects a desire of the authors/researchers to ensure their work is widely disseminated. In many disciplines – the sciences, health, engineering, and law to name several – open access is increasingly the standard, meaning that Access Copyright’s demands for licence payments would require hundreds of thousands of students to pay for copying that does not require a licence.

The emergence of open access publishing has enabled free access (as desired by the author) to millions of articles. According to a report by Montreal-based Science-Metrix, more than half of all research publications in some countries and fields of study are now freely available online. The shift toward open access becoming the default form of disseminating research in many fields is a remarkable change given that conventional publishing in expensive subscription-based journals was the standard in many areas of research as recently as ten years ago. The move toward open access means that global research is far more accessible to everyone—scientists, researchers, and the general public. It also means that courses that rely on the latest research found in journal articles will increasingly be able to access and distribute those articles to students at no cost.

Hyperlinking to Third Party Materials

Another notable source of materials on digital CMS are hyperlinks to third party websites that may feature content that a teacher or professor wishes to incorporate into the curriculum. The works are not copied by the educational institution, but rather merely referenced by way of a hyperlink. The government explicitly supported educational use of Internet-based materials in the 2012 reforms with the following provision at 30.04(1):

it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:
(a) reproduce it;

(b) communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;

(c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority; or

(d) do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) to (c).

The Act does contain several conditions, but it permits widespread use of Internet-based materials by education.

Moreover, the Supreme Court of Canada considered the legal status of a hyperlink in the 2011 decision of Crookes v. Newton. The court concluded:

Hyperlinks thus share the same relationship with the content to which they refer as do references.  Both communicate that something exists, but do not, by themselves, communicate its content.  And they both require some act on the part of a third party before he or she gains access to the content.  The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.

Given the state of the law, some may find it odd to even include hyperlinks within a discussion on freely available materials since it does not appear to trigger a copy or copyright issue. Yet Access Copyright proposed including hyperlinks within its educational tariff.  When the Copyright Board called them on it by asking for a legal justification in light of the Supreme Court jurisprudence, the copyright collective admitted (Document AC-21):

Access Copyright has not introduced any evidence about the prevalence of the use of links and the extent to which they point to unauthorized uses. Given the lack of evidence, Access Copyright is not claiming any specific or additional value in the tariff for the right to post a link or a hyperlink in this proceeding.

It then folded on the issue altogether: “Access Copyright has no objection to the Board removing this permitted use from the certified tariff.”

The initial inclusion of compensation for linking is part of a broader trend of overreach, however, with Access Copyright seeking compensation for uses that are already covered by other sources, including site licences, fair dealing, or transactional licences. There are many other materials that are freely available for use, including works for which the term of copyright has expired, open educational resources, open access for journals, and third party content posted online that may be incorporated through a hyperlink.


  1. Mr Geist,

    I would like to know if you have any information concerning scientific articles published in Elsevier hybrid journals (subscription journal with an OA option with APCs): copyright transfer still occurs, despite final OA article with a Creative Common licence.

    Do you think it may be because despite of CC licence, Elsevier may still recover ‘copy right’ by a collective entity?

    Or may it be related to further use of content in publisher databases that are protected by copyright?

    What may be the interest of exclusive copyright transfer to Elsevier on OA articles with CC licences?

    Do you have any useful links about this particular situation?

    I thank you warmly for your remarkable serie on Fair dealing, that is well documented and useful to engage similar thoughts in my country, Switzerland.


    Sylvie Vullioud

  2. I think we should pay more attention to this issue

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