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.

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

Week 5 Case Study Text

1. How can she use technology (formats, hosting) and licenses to achieve what she wants? (Answer for your own jurisdiction)

Australia

As with week 5, Professor Dube should use a rights sheet to keep track of the items. She has some options by utilising technology to achieve the preferred outcomes. There are a number of learning management systems (LMSs) available that require students and teachers to authenticate in order to access these “virtual classroom” environments. The listed material could be contained within a LMS. Alternatively another ‘closed’ website such as wiki that requires login and only provides access to teachers and students could also meet the ‘virtual classroom’ criteria.

In order to make the materials publicly available online, Prof. Dube would have to contact the copyright holders (the post graduate student, the publisher of the journal article, the publisher of the scanned article, and whoever owns the copyright of the photographs) to obtain an appropriate licence or permission. Also the Tsonga translations would be considered an adaptation under the Copyright Act 1968 section 10 adaptation means (i) a translation of the work. So permissions would be required.

South Africa

Before making her teaching materials available digitally, Professor Dube would have to clear the rights of the materials by contacting the copyright holders and asking their permission to either make it available digitally herself through a specific licence granted by the rights holder, or gaining access to an online version already made available by the copyright holder. She would also have to get express permission from the copyright holders to scan the article and digitise it and to translate the materials, as these are considered adaptations and are not permitted under South Arican copyright legislation without permission from the copyright holder. Articles published in all rights reserved journals are typically not freely available online or for republication by others online. In this instance she could self-archive a pre-print version of the article and make that available online.

In order for her students to be able to access and leave comments on her teaching materials, Professor Dube would have to make the materials available online (rather than just electronically on a CD or flash drive). Given her concerns about how other may use the materials, she should make it available in an uneditable format such as pdf on the internet in a content management system or a learning management system, or locked down in a ‘closed’ wiki or on a website. Given that her students are her primary target audience, she could opt for an university intranet system that would give only the students access, but then she would not be able to share the materials directly with Professor Mashaba online.

2. What licence or licences would be appropriate for her to use on the work? (Answer for your own jurisdiction)

Australia

For her own works there are some licensing options to suit her needs. To protect the work, but put it up on the internet, I suggest a Creative Commons Attribution-Noncommercial-No Derivative Works 2.5 Australia License located at: http://creativecommons.org.au/licences. Alternatively in the vocational education sector in Australia there is the AEShareNet licences while there is a number of them, the AEShareNet-FfE – Free for Education http://www.aesharenet.com.au/coreBusiness/ would enable the works to be shared for educational purposes while ensuring attribution, with no derivatives and no commercial use. Duel licencing may also be an option.

South Africa

Professor Dube can only determine the licencing for the materials of which she owns the copyright. The others will be determined by her agreement with the copyright holder and fair dealing and exceptions under the copyright act in South Africa. She could rely on traditional copyright protection for her work, as she does not want to allow others many freedoms in using her materials. However, it does seem that she does want to allow others to copy the materials. She could therefore apply a Creative Commons Attribution-Noncommercial-No Derivative Works (CC-BY-NC-ND) licence. The attribution requirement will ensure that she is attributed as the author and copyright holder. The non-commercial requirement will ensure that others do not use her work to make money. The no derivatives requirement will ensure that others will have to ask her permission before they use it in any other way than just as is, which would let her know and control how others are using her work.

3. How does copyright law affect the cross border transfer of each of the materials listed? (Answer for the jurisdiction listed)

As we have discussed throughout this course, copyright law differs across borders. The most problematic areas of copyright when sharing across borders is in the realm of copyright exceptions & limitations (CEL), more specifically in what what is eligible for copyright and fair use / fair practice / fair dealing. For example, one country may afford databases of facts strong creative expression and another country may say the database is just facts and therefore not creative. Another example would basic line graphs or bar charts which are considered creative expression in one country and may be in another. We have already discussed on multiple occasions that fair use / fair dealing / fair practice differs in each country – both within and outside of the classroom.

The Creative Commons Unported licenses are one of the most compatible methods for sharing copyrighted materials across borders. The unported license has been constructed in accordance with the Berne Convention, a copyright treaty signed by most countries.

Andrew Rens (one of our course leaders) has written a great paper for the IDRC on the topic of cross-border CEL. His title is “Implementing WIPO’s Development Agenda: Treaty Provisions on Minimum Exceptions and Limitations for Education”: http://www.idrc.ca/en/ev-141335-201-1-DO_TOPIC.html

Francesca’s actions, while performed by an individual, fall under the guidelines set out for institutional copying. As described in Hofman’s Introducing Copyright, there are such things as individual licences, general licences and blanket licences. 

While Francesca’s school is under-funded in comparison to the more prosperous institutions a blanket licence for her school would be its best option, because a flat fee can be paid by the school for its staffs’ reproduction charges. Unfortunately this is not feasible; therefore Francesca’s is forced to reproduce, by-hand, her lesson material for her students’ use. 

The guidelines of the Copyright Board of Canada state that the agreed upon tariffs according to the notice statement amounts to about ‘$1.73 per calendar year per pre-school, elementary and secondary FTE (full-time equivalent) student’ (http://www.cb-cda.gc.ca/tariffs-tarifs/certified-homologues/2007/20070217-e-b.pdf). Hardly a workable solution for an under-funded school, because they tend to have the higher student populations. 

In conclusion, provided that Francesca’s copying fell within the 10% fair-dealing provision she would be allowed to make hard-copies for school purposes. The limitations can be extended by the conditions stated in Section 3, subsection 3 of the Canada Gazette, for instance (http://www.cb-cda.gc.ca/tariffs-tarifs/certified-homologues/2009/20090626-b.pdf). Many countries would follow these same provisions, so we don’t believe Francesca has violated copyright by reproducing them in overhead form.

(Editor’s Note: We’ve gone for something of a combined answer this week for the scenario’s two questions. Hope that is acceptable, thank you.)

Which of the materials used by Professor Dube are subject to copyright? Why or why not in each case?

According to the scenario, the only material that still exists under copyright is Professor Dube’s original research and the journal article that she has, most likely, licensed to the publisher, which has now been recently published. The data and images, presented alongside her previous research, resides in the Public Domain including the following: the bishop’s account; the products produced by a government agency (e.g., NASA); and the factual weather data.

The personal account was published before 1923, therefore places it in the public domain (Brewer, 2007), and ‘NASA still images…generally are not copyrighted. You may use NASA imagery, video, audio, and data files used for the rendition of 3-dimensional models for education or informational purposes’ (NASA, 2008). In addition to this the factual data on local weather patterns. Example that exist in the public domain include facts, ideas and news (Canadian Intellectual Property Office, year, p. 5).

Finally, Dube’s previous research can be used in any way she deems fit as it belongs to her, however the rights, or assignment thereof, of her recently published journal article, belongs to the publisher. There may have been a clause in her agreement with the publisher for a reversal of these rights after a certain amount of time, but this we do not know.

What could Professor Dube do about the refusal to allow her to assign her own article?

The publisher of the academic journal holds copyright on the publication, not the author. Some journals will give consent for the author’s free personal academic use. In this case, since the publisher has refused, Professor Dube’s best strategy is to provide her students with a pre-publication draft.

The factual, public domain text and non-copyright satellite images are not subject to copyright, as has been noted. (We assume the weather data has been collected as part of Professor Dube’s research, rather than from a commercial database.) Anyone can re-use these materials. The text should be a pre-peer review version which differs from the published paper to avoid giving grounds for legal action from the journal.

An alternative variant is to quote from the paper using the standard copyright exemption for scholarly use and criticism, though only extracts or paraphrasing may be used. In this example the Professor is in the same position in relation to the copyright of the work she produced as in using work by another author published in the journal. In Commonwealth countries, such scholarly use for criticism is known as fair dealing.

Questions:

What is copyright?

Copyright is a set of rights and permissions that governs the expression of ideas created by an individual or corporation. They are a series of measures that set out the incentives of creation. “Copyright law has always been a balancing act between the rights of creators and the rights of the public” (Electronic Frontier Foundation, http://www.teachingcopyright.org/curriculum/hs/2). Increasingly the digital world has blurred the lines between creator and consumer and the use of copyrighted material online is under stress from both sides. The application of copyright that is held by an artist is usually through the use of exclusive licenses or assignments that “describes the transfer of copyright from one holder to another” (Hofman, 2008, p. 48)

What activities does copyright prohibit?

Copyright grants an exclusive right to determine the use and expression of a creative work. Thus, without the permission of the copyright holder, a work may not be reproduced, distributed, performed, or commercially exploited. Although most legal attention is directed at the commercial use of copyright, it is worth noting that artists sometimes refuse permission for the use or re-use of their work because the meaning would be changed in its re-use or re-interpretation.

Does copyright cover ideas or only expressions?

Copyright does not protect ideas. It is limited to “the expression in a fixed manner” (Hofman, 30). In other words, copyright applies only to works that have been written or recorded and does not apply to the fundamental concepts themselves (Frequently Asked Questions About Copyright, http://www.cendi.gov/publications/04-8copyright.html). Ideas are considered public domain and are not subject to copyright laws (Canadian Intellectual Property Office: A Guide to Copyrights, 5). One may circumvent this restriction by creating a preliminary version of the idea. Once the idea is recorded in a fixed medium, it is automatically protected by an all rights reserved model.

What requirements must resource meet for copyright to apply?

For copyright to apply, a resource must be an original creative work. Copyright restrictions in most countries also require the work to exist in a fixed medium. The Berne Convention governs that copyright automatically applies to a resource the moment it is fixed. Of course, not all countries subscribe to the Berne Convention. In such cases, a body of work must first be published in order to be protected by copyright if the author or artist is not a citizen or resident of a Union country (Hoffman, 31).

What about the rights of authors? Can someone sell the right to be known as the author? What right does the author have over how others who get copyright over her work can change it?

The author of a creative work automatically holds copyright. Under the Berne Convention it is not necessary for the work to published for copyright to apply. In practice, this right is often assigned to a publisher, producer or record company under contract law and the rights holder will exploit the copyright. Employees do not hold copyright to work carried out under their contract of employment. Academic employees are usually exempt (Hofman, 2009, p. 35) although some institutions override the academic exception with a clause in the contract of employment.

The practice of ghostwriting suggests they can. But they cannot transfer the right to be the author. The actual author would hold copyright and moral rights to the work. “Inheritance is the only way moral rights and the droit de suite pass from the original creator of a work to another.” (Hofman, 2009, p. 49).

The author has a moral right, even after transfer of copyright, to object to any “distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” (Berne Convention Article 6bi(1) in Hofman 2009 p 43).

What is the public domain? When does something enter the public domain? Are there some works that automatically enter the public domain?

Works in the public domain are works to which copyright does not apply (Hofman, 2009, p. 57) Some works exist in the public domain because copyright has not been extended to include them, for example expressions of traditional culture. Other examples that exist in the public domain include facts, ideas, and news (Canadian Intellectual Property Office: A Guide to Copyrights, 5). Others enter the public domain on the expiry of the period, or term, of copyright (Hofman, 2009, p. 58)