Copyright for Educators

N.B. The Yellow & Orange Groups recently merged into the Amber group.

Final Assignment

Describe one scenario which you currently experience in which copyright is a factor in the use of learning materials. What is the relevant copyright law in your jurisdiction? Are there any relevant exceptions? Does the law hinder or assist you to obtain access? How could this scenario be improved by open educational resources? Are there any obstacles to using OER’s?  If so, please describe them, along with proposed solutions or workarounds.

Australia

Our biggest issue in which copyright is a factor in the use of learning materials, would be the development of learning object repositories, these repositories are great from a learning perspective enabling teachers to share resources and students can access additional resources. As long as these repositories are only available to teachers and students, Australian law allows their use, the statutory licences enable teachers to copy/scan copyrighted material and store them into the repositories, although the organisations must pay a fee for that use. This fee limits teachers’ ability to put materials into the repositories. The cost of storing this material has recently become extremely costly to the educational institutions, forcing a rethink of putting material into the repositories.

This situation could be improved by open educational resources (OER) as it enables teachers to access and use material that does not incur additional costs. The major obstacle to this is education, in getting teachers to understand why it is better to use OERs rather than traditional resources they find on the Internet (with the traditional all rights reserved tag).

Another issue for teachers is the ability to adapt and contextualize the material for the locality. This is a problem for statutory licencesed material, but it can be easily fixed by using/creating OER with the the Attribution (CC BY) or the Attribution Share-Alike (CC BY-SA) material. There is some complication in copyright ownership: teachers in Australia are employees (school and vocational) and the copyright for the material that they develop belongs to the institution that employs them. It is therefore up to the institution, or representatives of the institution such as department heads, to set the policy to allow teachers to release the materials that they develop as OER.

These workarounds are not difficult and the OER community and framework is in place, it is just a matter of educating teachers and policy makers in institutions on the economic and other benefits of using OER and of releasing their works as OER licences so that all may share, use, and benefit. In Australia, the technology is almost in place; the education/knowledge of educators just needs to reach critical mass and we will be well placed to contribute and benefit from OER.

South Africa

We have a similar situation as in the Australian case where the creation of learning object repositories is one of the most important learning material activities. Access to sufficient, appropriate learning materials is a great challenge for educators and learners in South Africa. One solution is to make learning material available online as open educational resources (under an open licence such as Creative Commons) and allow for contextualisation, adaptation, copying and distributed or aggregated printing.

Unfortunately we do not have the clear and supportive legal context that Australia has. As mentioned earlier in this course, the SA Copyright Act is very vague on exceptions for educational use. Section 12 of the act deals with fair dealing and explicit exceptions:

12. (1) Copyright shall not be infringed by any fair dealing with a literary or musical work—

(a) for the purposes of research or private study by, or the personal or private use of, the person using the work;

(b) for the purposes of criticism or review of that work or of another work; or

(c) for the purpose of reporting current events—

(i) in a newspaper, magazine or similar periodical; or

(ii) by means of broadcasting or in a cinematograph film:

Provided that, in the case of paragraphs (b) and (c) (i), the source shall be mentioned, as well as the name of the author if it appears on the work.

12. (4) The copyright in a literary or musical work shall not be infringed by using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work.

Section 13 deals with general exceptions:

13. In addition to reproductions permitted in terms of this Act reproduction of a work shall also be permitted as prescribed by regulation, but in such a manner that the reproduction is not in conflict with a normal exploitation of the work and is not unreasonably prejudicial to the legitimate interests of the owner of the copyright.

It is not clear how much of a work can be copied and used without the express permission of the author or rights holder. Educators wanting to reproduce or adapt learning resources for their classroom under fair dealing would have to justify it based on their interpretation of the act, and even more so if they wanted to include the resources in an online repository. Here the law hinders access, as educators are afraid of copying even the smallest of sections, or which ever sections they needed for fear of infringing copyright. Obtaining permission from rights holders is time consuming and often to resources intensive for underprivileged schools. Those bold enough to go ahead, run the risk of being accused of infringement and challenged in a potentially costly and embarrassing process.

This situation would be greatly improved through the use of open educational resources. The licences associated with open educational resources make it clear to potential users what they may and may not do with the relevant resource. It removes the permission process for educators and will at the very least allow them to make the copies of the resources they need for their classroom. If compatible licences are used, it also allows teachers to adapt resources by taking, combining and re-sharing what they need.

However, this is not always the case. Although all open licences intend openness, licenses offer different levels of freedom and licences are not always compatible, which could lead to educators not being able to combine resources. It would be great if everyone used the most open licence possible, but that is not possible or appropriate for everyone. In the absence of that rights holders should make their contact details clearly available with their open educational resources to allow potential users to contact them when they are not sure what they may do and would like to request permission. An online system that could help educators clear content and gain permission for some standard use cases could also help.

An even bigger challenge is using content under fair dealing as part of open educational resources. It is not at all clear what is allowed and once available online in a repository, it becomes even more difficult for users who would like to re-use in other countries. A clear definition of fair dealing and explicit exceptions in the act for education would help resolve this for South Africa. Standard minimum exceptions for education across all jurisdictions would resolve this for everyone. In the absence of that, users have to be confident that their use is lawful under the act and make the argument for themselves before using the materials or adding them to a repository.

Only once we have the legal framework resolved, can we start addressing the more practical and technical challenges faced by users as described in the Australian case.