 Thanks very much. Good morning everyone. Thanks very much for joining us today to discuss the codes of best practice of fair use and fair dealing for open educational resources. It seems to be a theme this week, so good stuff. Bonjour à tous et tous. Je souhaite la bienvenue à nos collègues Frank Frenn. Ce webinaire se déroulera en anglais, mais je vous offre la traduction libre si vous aimez mieux poser vos questions en français. My name is Catherine McCoolgan. I'm the manager of administration and programs at CARL. And we're really pleased to be partnering with ARL on this presentation and workshop today. I'd like to acknowledge that I live and work in Gatineau, Quebec, which is part of the unfeeded and unsurended territory of the Anishinaabe Algonquin nation, whose presence here reaches back to times beyond memory. I'd like to recognize the Algonquin as the customary keepers and defenders of the Ottawa River watershed and its tributaries, and to honor their long history of welcoming many nations to this territory. I'm grateful for the opportunity afforded to me to live and prosper on these lands. So thank you Catherine for this opportunity to say a few words and I'll pass things over to you. Thank you so much for the welcome and land acknowledgement. So again, yes, thank you to our participants and panelists today. So, like I said, we're going to have folks continuing to trickle in but we are going to get started so welcome to those who are still joining. I just have a few logistical notes before we get to the good stuff. I want to note that as we, as we noted in sort of the materials. This is going to kick off with a panel presentation and then we're going to go to an off camera workshop the part right now that we're in is being recorded so just an FYI. This part is being recorded when we go to the zoom breakout rooms those will not be recorded. We just want to kind of create more intimacy and give you all an opportunity to, to ask your questions. Okay, I'm going to share arls, a link to arls code of conduct in the chat, just so that everybody has that. Okay. So now, it's my pleasure to introduce Claire Stewart dean of libraries with the University of Nebraska Lincoln, and vice chair of arls advocacy and public policy committee I have the pleasure of working closely with Claire, which is, which is awesome. I just asked Claire to say just a few words this morning about really the strategic value of the codes of best practices and the OER code in particular that we're going to hear more about in improving teaching and learning so with that said Claire over to you. Thank you Catherine, it's wonderful to be here I'm really honored to have a chance to welcome everyone and to get things started today. I did not participate in the development of these codes but I'm hugely indebted to the authors and the team who did and everyone who participated. I think the set of codes and I have I never far away from the code that was developed back in 2012 for my community. I think these are so important, maybe one of the most important tools that we have as a community and helping to find balance on these often very difficult legal issues and help us do what we should do which is to put our educational goals first. Even without the whole the wonderful array of best practices that have been developed over time, we still have had I think a tendency to shy away from the very open and the very broad dissemination that is really so essential to open educational resources. You know I think many of us increasingly believe and feel very strongly our future is open, and there is no OER without open dissemination. So a couple, two quick thoughts about you know how the value of this code. It really promotes. You know we really can't effectively do the work we do to promote student success and learning without open and without this broad dissemination. And this code I think really really highlights that in a particularly strong respect. It centers pedagogy, and it really promotes deep thinking you know it gets us so we're this isn't a checklist it isn't a simple kind of reductive set of rules. The pedagogy does exactly what we are trying to encourage our students to do, think about the pedagogy promote deep thinking, focus on the learning outcomes. And it really I think frees them to use authentic examples, I mean we're in libraries and as we do information literacy, we're always trying to prepare students to, to serve effectively in their authentic. These are the settings that they will find themselves once they graduate right. So being able to use content that really represents those contexts is essential. But I think secondly and even maybe more importantly it really promotes our goals around achieving information justice. We cannot and we should not have to choose one set of content. Those who can pay and who can live within our academic walled gardens. And I think this year we've had of living through a pandemic has shown how absolutely essential it is that we be able to transcend those. I'm sitting here today in Eastern Nebraska, which is where the majority of the states population of 1.9 million lives. Students come from all over the state and when the pandemic hit, we, you know they disseminated they went back to their, their home counties, a lot of them are rural and broadband is far less accessible to students in those settings, then it is when they're here on campus. I think really being aware of those environments and how important it is that we be able to use the content that fits the educational purpose, and be able to transform that content in important ways for meeting our accessibility goals for reaching students regardless of you know their ability to pay just so so essential. So, I'll stop there and turn it back over and eager to hear what we have to say today. Thank you so much. So well said. For folks who are still joining. Welcome. Thank you for being here. You'll have access to this recorded part so you'll be able to hear all of Claire's wonderful remarks that like those for everybody. So I'm about to kick it over to the panel I promise just a few more logistical notes. So this first part that will hear from the panel sort of presentation style. So I'm going to turn it over like I said we'll turn the recording off and Angela will sort us into zoom breakout rooms and even though we've all been doing this for over a year. Technology is what it is so it might be messy. Thanks for bearing with us. We are trying to sort folks into a fair dealing room if we think based on your email address that that's appropriate for you, and then we'll have two other rooms as well just to create more intimate rooms. But if you end up in the wrong room or you want to sort back to a different room, you can always come back to this main room and we'll give more sort of instruction on how to do that. Okay, so now the fun part in the interest of time. Each panelist will introduce themselves and I'm going to kick it over to Meredith who will hear from first Meredith Jacob is project director copyright education and open licensing with the program on information justice and the American University of Washington College of Law, and Meredith is going to kick us off Meredith thank you so much. Thank you for having us thank you Catherine and thank you, Claire. So, with the honor of being the first panelist I'm going to give you all just a very very brief overview of what we might talk about and what we're not going to talk about. First of all what we are not going to do is sort of stand up here and present a lecture on the content of the best practices and fair use for open educational resources. We couldn't do justice to that, and it would not be the best use of your time. So I would encourage you to get the best practices to read it and to really dig into what's written there. This is probably the most revised document I have ever worked on in my entire life. Every sentence, we have written at least three times so, you know, appreciate them for their careful word choice and dig into that we're not going to try to recapitulate it here. So what I am going to hope we're going to do is explain to you why these best practices are really powerful tools. Why this best practice in particular felt really urgent to develop at this moment. And a little overview of sort of the takeaways that we found that line up with the pedagogical choices educators face. And then finally, some of our colleagues from Canada will talk about why really similar work is possible under Canadian law. So having said that, the first person I'd like to introduce is my colleague, Peter Yazi, a professor emeritus of copyright law at American University with me, who is going to talk a little bit about the sort of fair use. And I think in which we are swimming when we create these best practices and why the best practices in fair use have been a powerful tool for creative communities in understanding and realizing their rights under fair use. Peter, thank you so much for joining us. I'm Peter Emeritus and, and, and thanks Catherine for organizing and Claire for those, those wonderful opening remarks and to all of you who have agreed to spend 90 minutes with us this morning because I think the message we have to deliver is, is, it's an important one. And I wanted to do my part by going back just a little bit in, in legal history copyright history to talk about the way the world of copyright and fair use in the United States was before 1994. Before the Supreme Court intervened in a famous case called, called the camel case. There was a lot of doubt and uncertainty about how valuable a doctrine fair use was everybody knew in a theoretical sense that it was the kind of safety valve of the copyright system in the way in which important acts of expression that might be technically be limited or prohibited under copyright law could nevertheless be permitted to occur. But there was lots of doubt and dispute about how strong a doctrine it was or even about what its content as a doctrine was. And it was a, it was a promote from the standpoint of those of us who, who have been over a long time, proponents of the very use doctrine and believers in its central importance as a kind of balancing fulcrum in the US copyright system. It was a discouraging time and needs to be acknowledged as one. Then, and the background of this is interesting it's discussed a little bit in the document it can be, it can be found set out at greater length and many other places. Relatively suddenly over the matter of a matter of oh three or four years, everything changed and the, the, the great mark of that change was the, the camel against a proposed decision of 1994 that I referred to a moment ago. In that decision the Supreme Court made clear that it was in effect starting again to write the law of fair use in a way that was truer to its original purposes to its, its function as the expressive safety valve in the copyright system that had been true in the decades immediately proceeding. And for the last 25 years and so and change, we have had a series of lower court decisions, which have, of course, followed and to a great extent, reinforced the new vision of fair use that the court articulated the Supreme Court articulated in Campbell finally to bring the history right up today, just last week. We had the first Supreme Court decision, engaging significantly with fair use in the last 27 or so years. That was, of course, the case of Google against Oracle. And in it, the Supreme Court confirmed the approach that it announced back in the Campbell case, and actually filled in some of the gaps and, and sort of addressed some of the potential misunderstandings in a way that was very very aggressive, very welcome from the standpoint of serious user communities, including, but not limited to libraries and teachers. So that's where the law stands and the content of the law is easily stated in the US content the content of the US law and that is when you, when you consider whether a use is is should be. When you think about whether you should be considered fair. You could be thinking about it before the fact maybe I will make this use maybe I won't. You could I suppose be thinking about it after the fact was that use that someone made legitimate fair and non infringing or was it suspect. You asked two questions. And the first question is, was this use taken on for a transformative purpose now that's a, that's a jargon term, but we can translate it easily enough into into common English in fact the Supreme Court did that for us. Again, last week, when it said a uses a uses transformative when it offers something new and important. So you look to what the original purpose of the materials in question was, then you look to the, the librarian the instructor, the student whoever is making or is contemplating making the new use and you ask. Are they adding value. Are they changing the purpose of the work are they addressing a new audience. That's the first question if the answer is yes, as it frequently will be in the educational domain. And then you ask a second question and the second question is, is the amount of material that is being used appropriate to the purpose for which it is being used. So if I'm interested in, in producing materials that involve a commentary on one. I may not want to reproduce the whole, the whole book of poetry out of which that one poem has been derived but the poem itself, if that's the proper unit of analysis will of course be eligible. Those are the two core questions that the answers to both are yes, that the use is fair. It's simple it's straightforward. It takes some practice, but once you're, you once you have the hang of it so to speak, it's relatively easy to do it relies. Doing it relies very very strongly on what we might think of as as common sense. And most importantly and appropriately to say now, it produces highly predictable results. Sometimes people say well you can't rely on fair use because it's uncertain. Well, why is uncertain, you never know until you apply a general legal principle to a specific set of facts what the particular outcome is going to be, but certainly isn't the standard that we should be applying to any law legal doctrine. It's predictability that matters. Fair use doctrine as it exists today as it has existed for the last 27 years, as the Supreme Court confirmed it only only days ago is highly predictable. So this is all good. And it was easy to recognize fairly early on that these were good and important developments but there was a problem. In the 90s and beyond, and that is that this, this new progressive re understanding of fair use this new way of thinking about fair use that makes it potentially accessible to a wide range of different practice communities including ours. Had a hard time taking hold in, in, in daily practice, because of all of the sort of the hangover, the legacy of doubt and uncertainty and skepticism about about fair use that had preceded it. And that's where these fair use best practices documents come in. Starting of a decade or so after the Supreme Court decision and Campbell, a group of us here at the American University in Washington DC, decided that it would be an interesting undertaking to try to make information about this new approach to fair use more accessible to practice communities and we experimented initially with a code of a statement of best practices and fair use for documentary filmmakers, which was released I think in 2004 or six. Anyway, since then there have been as as as Claire mentioned a series of other documents at the same time. They aren't hard and fast guidelines they don't answer your questions for you. As Claire mentioned, they describe a way of thinking through those questions to the to a reliable robust and and defensible conclusion of thought process based on derived from what we know about the law. Now we don't know a great deal about the law fair uses it applies to libraries and education in literal terms because we have almost no cases that address those issues, but we can extrapolate. And the more decisions there are involving fair use in other practice communities applying the standards of the Supreme Court to which I referred a moment ago, the easier the more reliable, but that extrapolation becomes. Does anyone place confidence in these various documents, these statements or as they have come to be called codes of best practices and various. Well I think there are, there are probably three reasons that they, they may or might inspire confidence. One is, as Meredith has has already indicated that, you know, they're, they're, they're carefully made and we take, you know, great pains to make sure that what they say is both accurate and helpful and we hope that we succeed and at least some of the feedback we have from the field suggests that do. But the more important reasons to take these codes seriously are first, that they are based on broad consensus in the field, as well as expertise, because, as you will have understood from what I've said so far. The proper analysis of various questions is, is driven by granular understanding of particular fields of practice, what they are setting out to do, why they do it, what their purposes are. It's essential that reliable and useful code of best practices should reflect the views of the field and we go to considerable trouble in every case to consult broadly and try to derive from those consultations information about what most people in the field, whatever the field may be. Filmmakers or educators, or, or communication scientists or specialized archivists, we take seriously information representing their consensus about what it is important to be able to do with existing copyright materials in order to fulfill their mission about what their new transformative purposes are. That's one reason I think to have confidence in the best practices because they're broadly reflective of the views of the field, but there's another one as well. And that is that once we've done our work and trying to synthesize the information that we've derived from the field. Then we submit the draft code to an outside panel of expert lawyers who are copyright specialists, but not necessarily in any sense, friends of the particular project there. They're chosen carefully for both their experience and their reputation in the field and they vet these documents closely and changes are made for sure to what the documents say based on that vetting. What we invite those reviewers to do is to look at what we've come up with and ask whether it represents a responsible and reliable extension or extrapolation of general fair use principles into a particular field of practice where in fact there may be little of any direct case law authority to go on and it is on the basis of their affirmation that the code in question does that we go forward. So I think that that's, that's, I mean, it obviously depends but those are some of the reasons that it that we think that these codes commend themselves to serious consideration by the practice communities, which helped create them and for which they are intended. Of course, in this case, in the case of the OER code we've taken further step because we were interested in devising a code that would be, would be perhaps not in its, in every one of its literal words but in its spirit applicable to the to OER production and dissemination in Canada as well. We have done an extra loop of consultation with both Canadian practitioners and Canadian experts, including our, in particular, our, our colleague Harris Craig who has provided the analysis of Canadian law that is to be found in the appendix, in an appendix to the best practices document. And we are, we are, we are hopeful at least that the document that we've produced will for that reason have value for the, the, for Canadian practitioners as well. And I will stop there. I think that's a really useful sort of bedrock we understand where this best practices sort of grew out of that experience. I'm going to talk a little bit about the experiences of the last couple years that pushed us to feel like this best practices for open educational resources was urgent, and sort of how that shaped what we did. So I think an experience that both will cross and I had in going out and talking to professors and educators and librarians about open educational resources and about the function of the creative Commons licenses. And one of the ways you create them is that you would go to meetings and conferences and trainings, and you would explain to people how the creative Commons licenses worked, and how to understand, and making a remix and all of these sort of technical questions, and people would listen politely because librarians and professors and teachers are polite people. And then all of the questions would be really about copyright law and fair use, you know, the CC licenses, well they're sort of technical and really easy to understand there are rules you can follow the rules. And once you've done it a couple times it's pretty simple, but these fair use questions these questions about how to engage with existing content out there in the world. We're really the questions that were burning a hole in people's pocket. And that makes a lot of sense, because you must, in fact, engage with existing content to make open educational resources right. You need a closed book exam. And to do so you really need three different buckets of things right, you use newly authored or openly licensed material under a CC license, but the creative Commons licenses have only existed for 20 years so if you want to use pictures or movie clips or anything that happened before 20 years ago you need to exist, you need to use existing third party content. And then there's stuff in the public domain from 1925 and before. But you need to engage with the recent past to teach things effectively. And so to do that, you have to understand when and how you can rely on fair use, which brought us to sort of our second reason this was so urgent. And this is a core function of fair use, as will will explain when he talks about the code itself. These pedagogical activities that people are engaging in when they create OER are the core types of transformative uses of things like critique that fair use was designed to enable, and avoiding using fair use in those situations is almost nonsensical right you are in a situation where it's like parking at a parking space, when the meter isn't being enforced but being like, I'm going to avoid it anyway, I'm going to pay for time I don't need. It is this sort of meaningless maneuvering around something that is the core users rights that fair use is meant to enable. The other reason I think this felt very urgent is, as Claire discussed early on, that you know we've faced this crisis about access and equity during the pandemic. But for many students that crisis was pre existing right, we had this moment a year ago where suddenly it felt like this in your face question of like, wait, the subscription model that gives us no flexibility means I can't transition from print to online, or I can't use this resource of my students aren't on campus, and that felt like an emergency for all students, but for many students students with disabilities low income students students with bad connectivity. That access issue was always an emergency, you know one of the things that we've seen in OER is that when courses switch to OER, and students have equal access marginalized students benefit disproportionately from being able to be on a level playing field with their colleagues and so there's this urgency here when fair use is at its strongest and it's equity arguments that are at their most urgent to not allow fear uncertainty and doubt about fair use to keep educators and authors and librarians from moving forward with creating high quality OER. So I think we've seen in the history of OER production that these questions about fair use and as Claire said being willing to really rely on fair use like out loud and in public for big sort of mainstream stuff. So that's limited in the topics that we are covers right, you'll see a lot of we are in science and math and other technical subjects where the fair use questions seem more manageable. And you'll see less we are in sort of cultural studies and art and literature where they really have to confront fair use head on and sort of large scale. We do see those types of OER projects done. They often include risk mitigate mitigation strategies, like linking or making available materials only for people on campus that really don't serve all students. Similarly, I would say that we are sort of at this decisional point in how educational materials are developed, where either we really sort of reinvest energy and commitment to open solutions, or we see this growth of really one size fits all non negotiable subscription contracts. And I don't think this is isolated in OER I think we see it across the field of publishing of educational resources of scholarly journal articles. And unless there really is a commitment to do the work of understanding fair use so that we can create open educational resources across disciplines that I think there is this risk of textbooks and the pedagogical student access choices that are wrapped up with them becoming something that is sort of dictated by the publishers. And so to talk a little bit more about the risks around accessibility and equity there I'd like to introduce my colleague, Adler, who has joined us at American University as a senior policy fellow for our program on information justice and intellectual property. Thanks for joining us. Good morning everybody and let me echo what's been said before and thanking ARL our colleagues at ARL and Carl for not only hosting this but organizing this. I would much appreciate having the opportunity to work with more in the community around adoption of this code. And I just would like to hop back for one second to something Peter said, if those of you didn't have a chance, if it was recorded. Last Friday, there was a hot to talk on the Google versus Oracle, and it was excellent. And I highly recommend that. Thank you for your time and again I don't know if it was recorded I think things usually are that you take the time because it was just superb. Meredith was it recorded you know. It was recorded and it's probably not up yet because they have to double they, they correct the captioning before they repost it but I can give you the general link in the chat. Um, so as Meredith mentioned I had a particular focus during this project on accessibility. And one of the things that we heard throughout this project was that those who were creating OER is very much were committed to making OER accessible. And part of what we found, particularly in the pandemic as Meredith mentioned, was that the challenges that those with disabilities face either hearing physical mobility issues, or vision issues became much more exacerbated during the pandemic but I would liken to what Claire said at the beginning about information justice, having those with disabilities having access to information on an equal and equitable level, just has not been as successful as we would hope. So with that, what we also heard was that the concerns has been mentioned about using copyrighted materials really did result in less optimum OER. And even if the inserts the copyrighted inserts were the most appropriate and the most impactful, they still were not being used. And one example of that that I'd like to give is the issue of linking out. If you link out instead of using the most appropriate insert, be it text, audio or visual. That's an example of a key workaround that many people believe is a safer option. It can be links to a proprietary website or social media platform. But we all know the state of the internet in terms of broken links, links change, and links can also send students to unintended directions which the professor had no interest in having happened. But importantly, if you're linking out in lieu of using the best copyrighted insert. If, if you're linking out and the resource is not accessible, that student has absolutely no recourse, because she has no relationship with the provider for the provider to make it accessible for her. So for legal, moral and ethical issues. We really believe that making OER accessible to students is not adequately. We don't rely on linking in terms of accessibility. And throughout this project from everyone we talked to this conclusion was affirmed over and over again. I expect that as these conversations continue, as we work with different communities, the accessibility issue will be front and center for many of us. So with that, I'm turning it over to Will Barrett. Yeah, we'll turn it over to will very briefly after this I just wanted to thank you for that, and then introduce will cross from NC State University libraries and will is going to talk a little bit about the four core principles that were documented in the code of best practices and so the structure of the code is some introductory material that explains sort of how it works, then for big principles that we think line up with repeated sort of practice scenarios for educators authors and librarians, and then a little bit more information about implementing the code in your work. So we'll thank you so much for joining us and for doing the work of introducing the core part of the code itself. Thank you to Meredith and thank you everyone for being here today. I love the way we talked about the code is this sort of community driven document, and these four principles I'm going to introduce really reflect spaces where those conversations started to coalesce around centers of gravity. And with indicated we could and have done entire, you know, two hour webinars on the nitty gritty of the code. I'm going to link it in the chat here and give you sort of the high level view of it at this stage. And I'll say we got off on a good foot today because I think Claire Stewart in about five minutes introduced basically everything I'm going to say in one sense or another, which is which is Claire's emphasis on sort of authentic pedagogy as the in this space, a phrase we found ourselves saying over and over as we've talked about the code is the idea that good pedagogy is good fair use that if you're doing the sort of thing a responsible thoughtful engaged instructor or student is should be doing, you're doing the sort of thing fair use generally supports you doing. So let's talk through quickly those four principles, keep in mind that touchstone that sense that this is this looks like good teaching and learning doesn't it, and that intuition has been helpful as we've helped instructors move past anxiety about sort of getting lost in the legal nuance, and really returning to the sense of this is good practice, both sort of pedagogically and also legally. And as I say we're happy to jump into in our breakout room some of the specifics and nitty gritty more those four principles that sort of kept recurring that we kept coming back to in our conversations over the past year. The structure is Meredith said is there are these sort of four principles, each one of those is accompanied by a set of considerations, things to think about as you apply that high level principle, and then a set of hard cases as well. Those hard cases were useful, particularly for describing sort of the the endpoint this isn't to get out of jail free card there you know they it's not that a hard case is something that can't be done. It's a it's a look a little more closely think a little bit more about what you're doing really aligns with the sort of good pedagogy is good fair use idea. So the first principle the first area that we saw a lot of our conversation coalesce around was was the idea of using inserts for criticism and commentary. And we were happy to hear this set of questions and practices come up a lot because this is about the easiest example of fair use you could imagine if you were doing a final exam. And the question of whether criticism and commentary was fair use or not you'd smile a big happy smile, because yes that's exactly what fair uses for that's what fair use is designed to support so. So the question of I want to do a close reading of a poem, or I want to have students do critique of different professionals, sort of practicing their work in different contexts. So here's the news that first principle is in some sense the easiest to talk about and to think about and to analyze in terms of fair use doing critique and commentary is absolutely a bedrock sort of example of the fair use that we're talking about. So that's the first principle critique and commentary. The second principle is is almost as easy and so we were happy to hear about it as well. The second principle has to do with the question of illustration. I'd like to include an insert not necessarily to do a close reading of it, but instead to illustrate a particular idea to demonstrate a trend over time, etc. So we often had questions about things like, including an iconic news image as a way to illustrate a moment in history. And again that's that's a big smile from our fair use hat wearing lawyer and that should be a big smile from our great teachers as well because that's the sort of thing good instruction does is here's an idea. Here's an illustration right. So critique and commentary illustration those are the first two. The third had to do with incorporating content as learning resource materials. And this is often rather than being about commentary or illustration more about building confidence and mastery through engaging with analytical skills, familiarity and fluency. So the easy example here is we had a lot of conversations with folks who work in foreign language instruction, who said I can give them some made up sentences, right. I will and those are okay for learning but if I really want to understand what it means to be fluent in the context of native speakers. My teaching is going to be a lot better if we can watch an actual movie or a TV show that uses that language or engage with print media from that that country or that culture in different ways so bringing in as an insert something that was originally designed for educational purposes, but gives students that opportunity to do the analysis and build the familiarity and fluency by engaging with a real actual sort of caught in the wild example as opposed to an artificial example created. That was the third one and we've had some really good conversations on that front as well. So this is a commentary illustration incorporating content as a learning resource material, and then the fourth principle the fourth conversation that we had sort of over and over the fair use clearly supports is the idea of repurposing existing pedagogical content from existing educational materials, in a new way in a way that's clearly transformative as Peter discussed, but sometimes in a, sometimes in a way that's justified more because the, the existing resource has outlived its useful commercial life or existence right this is a textbook from the 1950s, and it's incredibly out of date, and a tremendous number of ways, it's out of print at this point, but they do a really nice job of generating problem sets, or the structure they use to introduce these ideas is really powerful, and some of the copyrightable elements in that structure would clearly benefit this new resource. So this isn't taking an existing for sale. This is a very hard resource and just sort of squishing it in here we are this is taking something that's out of print, or out of commercial circulation in a certain sense, and borrowing sort of the remaining useful materials to bring into your new open educational resource. That's again a practice we heard would be powerful from from a pedagogical perspective, and that's something that fair use very clearly supports as well. Those are the very, very quickly the four principles that we outline in the document. As I say I've linked it in the chat so take a look at those, and particularly those sense of considerations and hard cases to add some nuance that we don't have time for this morning. And then finally as Meredith indicated, once we've moved through those four principles the code does a really nice job of digging into two other issues that came up a lot and felt very, very important to us. So the first had to do with marking your fair use inclusions making it clear this, you know this this new OER I've created is licensed under CC by, except for this, you know, this commercial resource that I brought in for purposes of criticism and commentary. This was under fair use a lot of the questions that we got about relying on fair use had to do with not sort of misleading people who are making downstream uses and leading them to think that something that was openly licensed. As marked was in fact being used in reliance on fair use, easy for me to say. So so that idea of marking is something we could spend a whole hour and a half talking about here but I wanted to quickly gesture to it. The last thing in the document I think Meredith mentioned as well, are these set of really powerful appendices about some of the related issues that come into doing the calculations around, including these inserts under fair use and otherwise. Two of the sort of most exciting of those appendices get into the question of cross border and international use. So having sort of gestured in that direction I'll step out of the way now. I'll hand it back to Meredith to hand it over to some folks to give us some great examples of starting to build that international body of open educational resources that I know really embody the work we in OER land are so excited to do. And as well said we thought from the outset that particularly for the open educational community. It was important to understand and document how relying on fair use would not sort of break the ability to use these materials across borders because indeed as many of you know, it is that international collaboration and reuse that is one really valuable of an education. And we were very happy that, you know, as this work developed, even though the sort of technical legal language was not exactly the same, that the fundamental sort of social purposes that are enabled by fair use were in fact, almost identical to those that were that are sort of enabled and protected by fair dealing. So I'm very happy now to turn it over to two of our colleagues from Canada to talk a little bit about their work their analysis of this and some other sort of larger questions about how different best practices maybe applicable in both the US and Canadian context. Thank you. Thank you so much, Meredith. So grab and I are going to buck the trend a little bit and actually share slides so hopefully you can all see my slides here. So what we're going to do today is just briefly touch on whether or not the codes of best practice can model could work in Canada, and then talk about the, the, the appendix that Keras wrote that is part of the best practices. At this point, you're all very familiar with fair use and it's open ended and flexible nature, but you may not be aware that Canada has a similar exception with some important differences and not exceptions called fair dealing. And like fair use fair dealings a flexible exception to copyright from infringement, but unlike fair use it's not as open ended in that we have an a closed exhaustive list of purposes that fair dealing is available for us so those are research private study criticism review news reporting education parody and satire. And rather than that open ended illustrative list of purposes that Peter mentioned. In addition, while many of the fairness factors are very similar one major differences that transformative use is not as major a factor in determining fairness in Canada, unlike isn't in the US. Another difference is that we are behind the US and having strong copyright user rights. So in Peter section he mentioned that the more permissive flexible use. Fair use didn't really start appearing in case law until the 1990s but has been a staple of US church students since then. But in Canada we had to wait until the 2000s when we had a similar flurry of cases that is defined fairly fair dealing in Canada. And this started with the paper case a case dealing with limits on what constitutes reproduction under the act. And it's still the acknowledgement by the court of the public interest purpose and copyright in that according to Justice binny copyright is presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining just reward for the creator, but it wasn't until 2004 with the CCH Supreme Court decision that it became clear that fair dealing was a bona fide user right a flexible and open ended exception that it could apply to many situations and should not be interpreted illegally. CCH which is interestingly a library use case sets out the definitive test for Canadian Fair dealing and is widely considered to be one of the most important copyright decisions in Canadian history. And this was followed by five important Supreme Court decisions in 2012 all released on the same day that included two that implicated fair dealing. And then it reaffirmed that a large and liberal interpretation of fair dealing purposes in by ruling that audio previews and iTunes were fair dealing for the purpose of research so that's the so can case. And another the Alberta case that found that copies made for students on behalf of teachers were fair dealing for the purpose of private study, and that the students and purpose was the one that mattered for the dealing not the teacher. And in the same year Canada had major revisions to our copyright act that added three new purposes to fair dealing education parody and satire and also included a number of other exceptions to infringement for individuals and for educational institutions. So, where are we now, essentially we're in a situation where we have a strong user right and fair dealing that is supported by considerable jurisprudence at the Supreme Court level, and we also have a definitive test for determining fairness from the CCH case. The jurisprudence is strong, there is still much more hesitancy in Canada to use fair dealing for many situations outside of educational uses educational institutions from the elementary to grade school level to the university level have adopted standard guidelines for using fair dealing in some limited educational situations. What dependence on fair dealing has not expanded outside of the limited scope of these kind of guidelines in the same way that it has in the US. And those guidelines are actually currently being tested at the Supreme Court of Canada in a major educational copy in case between York University and Access Copyright. And these will take place in May, but these are just one simple set of guidelines developed in 2012 to meet a specific need in Canada will would benefit for from a more nuanced and thoughtful framework for using fair dealing and more situations for more communities and a suite of code of best practices for fair dealing like they have any in the US is an ideal solution for this. So I'll turn it over to Graham to go through the appendix. My name is Graham Slad and scholarly communications and corporate outreach librarian at the University of Toronto. Mark is going to handle my slides. So you'll hear me asking him to shift forward every once in a while. So, as we've all discussed and thank you to our colleagues for doing such a great job so far on explaining sort of where this particular appendix fits in. We now do have a first of its kind, a Canadian focused module or or appendix within a code of best practice in OER, which was written by Dr. Charis J Craig, professor at Osgoode Law School at York University, which Mark just mentioned, which is in Toronto. And it is appendix three of this code of best practices. And Dr. Craig's document if we can call it that lays out the case that the ways of thinking about whether particular uses of inserts in OER are fair in their principles considerations and as well as the hard cases. Apply just as well to the application of fair dealing to OER in Canada, as they do, of course, to the application of fair use to OER in the US. So next slide please Mark. So the appendix begins to sort of going over the story that Mark has just told us about how fair use and fair dealing have converged over the past two decades or so. And key to that story is that in Canada the determination of fairness has become subject to a multi factor analysis. And that was, you know, most mostly established by in the CCH case that Mark mentioned. Charis goes on to say that fair dealing has been explicitly named as a user's right by the Supreme Court of Canada. And it is, and it's according to the Supreme Court, become a primary way that the act balances the interests of copyright owners with those of the users of copyrighted works to fulfill the acts public policy goals. Now this will be very familiar to the Canadians around the call. But unlike in the US. This copyright act for fair dealing lays out an exhaustive list of purposes to which fair dealing may apply. So we have for the purposes of in our in our fair dealing in section 29, whereas in the US, the language is for the purposes such as, and that's a pretty big difference but it can be, it can be overcome. And as Dr Craig lays out. And within Canada so called two step test. Fair dealing should not be narrowly construed at either point in the analysis. So, in, in the first, in the first step, does it, does it meet one of these enumerated purposes. Those, those words those, those uses those purposes should be giving should be given a large and liberal interpretation. And as the second, at the second step, when you really just do that sort of heavy hitting of the analysis of whether something is fair. Fair dealing should be interpreted as a user's right that can be positively assert asserted in many contexts. So next slide mark. So the upshot of this which is sort of the message we wanted to really hone in on about what actually this appendix is saying within the code is that rather remarkably. This appendix makes a case that if a user's purpose is for one of the purposes that identified in the copyright act which which mark listed for us. If a user's purpose is for creating or adapting an OER is highly likely. Dr Craig's appendix states plainly that it can then be assumed that what can be deemed a fair use in the US by the ways of thinking that the codes identify can also be deemed as fair dealing in Canada. So that because this determination fairness relies on the same sort of factual pattern. To affirmative reading of fair use we can also that would also be in, you know, almost every case into a similar determination of fair dealing in Canada for Canadian OER practitioners, of which there is a very large and strong community. So the general message here is that this risk of sort of cross border loss of quality loss of the ability for teachers and instructors to rely on copyright materials in the same way depending on where they are geographically located. That there is a very minimal risk of this between our two neighbor, neighbor countries. There are some minor differences that Dr Craig has pointed out and that we that some of the work that Mark and I has has done over the past couple of years is also focused on. So next slide Mark. So there is there's of course the burden of the first step. Let's say first that, you know, some of these differences are maybe problems but I think some others might even be enhancements, or maybe enhancements isn't the right word but they're not necessarily bad things. So there is a burden of the first step of the before the weighing of the fairness. So the example that Dr Craig gives in her appendix is that if something were to be included. We are for sort of decorative or aesthetic reasons to sort of introduce a subject, rather than be used for some of the, the sort of principles that will laid out. That may not even satisfy the first step of the Canada's fair dealing test so you may not even get to the point where you can weigh the fairness if something is not, you know strictly for research or private study or education. So that might be something to consider for Canadian users and creators of OER. But we also have an additional fair dealing factor that isn't listed in the US copyright act that jurisprudence in Canada has identified and not as the factor of the availability of an alternative to dealing. And this may go in some ways to resolve some of the problems that I mentioned in the first in the first difference. And this factor is asked as to whether whether there is a non copyrighted alternative to the use or whether the use is truly justified by the purpose. And we also have very helpful from language from the Supreme Court dealing with this factor that states that the availability of a license does not constitute an alternative within the consideration of this particular factor. As I mentioned, there's also the issue of Canada's court so far limited reliance on any sort of doctrine of transformativeness and fair dealing cases. We, it's not really its own thing, even though it was considered in one of those fair dealing cases at the first step so it's not a requirement for something for for a used to be for a transformer transformative purpose at the first step of the fair dealing test. But it obviously transformative miss can be sort of a weight in any of the other factors in some sense. And finally, this is sort of kind of the most specific to Canada is that in 2012. There were some new exceptions introduced into the copyright acts, which are sort of limited fair dealing like exceptions. The user generated content exception or mashup exception and the other is the works available via the Internet exception. They may be relevant very relevant to our creation. So for the UGC exception, the property. It's more or less kind of a care of states that it's kind of like a transformative use exception so the copyrighted work must be used in the creation of a new work must the new work must have originally in itself. The use may not have any substantial adverse effect, either present or future which is kind of were sort of slightly problematic element of the exception. Market on the potential on the market for the original work. There's also the work available through the Internet exception which allows for the use of any copyrighted work with some conditions there. So as long as it's used under the authority of an educational institution. So that is a very, potentially a very powerful exception for we are. And it really kind of their inclusion is appendix I think asks the Canadian community of practitioners of copyright people to start developing our own sort of shared understanding of how these particular exceptions fit. Is it present to fair dealing or whether they can be used alongside fair dealing to accomplish our pedagogical goals with we are. So with that mention of shared understanding. I'll pass it over to mark some pro last two slides. So I'll try to get through these pretty quickly because I know we want to get to the breakout rooms. And I have actually been working on this stuff this idea of adapting the codes of best practice for off the sides of our desk for a couple of years now. And this goes back to when the code for software preservation was released. I think in 2019. We decided to try to take the opportunity to see what it would take to take one of these codes and build a Canadian adaptation. So we did some preliminary research, including some interviews with Canadian researchers involved with software preservation. And we presented our initial findings at the ABC copyright conference in 2019. And on top of that, this past February we authored a position paper that was released by Carl about the convergence of fair use and fair dealing and how the best practice documents were jumping off point for user communities to help clarify how fair dealing can apply within particular contexts. And in this paper we use the code of best practice and fair use in software preservation as an example, but we're not stopping here. So we're with the appendix with this paper being released. We really wanted to start, you know, building some momentum in getting these adaptations off the ground. So as for the OER code we're working on a wide variety of ways of promoting it in Canada, starting with all of the members on this call and Keras Craig joining the Canadian open education community. This, this week actually on April 21 for an open education cross Canada coffee chat to have a little bit more of a discussion about the, the code and its Canadian application. And that coffee chats a monthly event that tries to bring together Canadians interested in open education to talk about just a wide variety of topics that relate to open education. And on top of that, this group, including Keras will present on Friday, May 7 one of the keynotes for the ABC copyright conference. And that conference is free this year it's completely online. I'd encourage you to register the links in my slides but we'll put it in the chat to it. If you don't get it through the chat you can really easily Google ABC copyright conference a good conference this year. But other ideas for continuing the Canadian conversation. So at Carl we also have a series of discussion calls that with copyright specialists from Carl institutions. We also hope to use that community to have a call to discuss the adaptations of the codes in Canada with a focus on software preservation but just to talk about how they could apply what they might look like. You know, do we want to do full adaptations or look at the appendix model, look at an addendum or something like that. And after that we may look at forming one or more Carl project teams to move these projects forward. Maybe some focused on individual codes maybe just a project team to guide a variety of code adaptations forward. But no matter what we're all excited that we have the first Canadian appendix and that we're moving towards adopting this model in Canada, because it'll really benefit all of you know the fair dealing users that are in varieties of different communities of practice. So I'll turn it back over to me and then I'll turn it back over to Catherine to figure out the working group stuff. Yeah, thanks Mark. I shared some links in the chat and also I think everything can be found on our aerial events page except maybe the ABC copyright link but I did include that in the chat here so. Well that was great. I think yes like like Mark said we're going to switch over to zoom breakout rooms and Angela is going to sort us over that works and so we do have a room dedicated to fair dealing and then just two rooms on on fair use. I'm actually going to stop the recording now.