Case study week 3

Scenario

Francesca is a teacher at a less privileged, under resourced school. Because this school lacks resources Francesca  does not have access to technologies such as a smart board. At high-end schools, teachers often scan materials onto smart boards and present it to their students. Though Francesca has access to a photocopy machine, she is afriad of making multiple copies of this material. However Francesca needs this material to properly educate her students. To comply with what she believes copyright law requires, Francecsa decides to transcribe this particular work onto a transparency to and then to display it on a projector for students to copy in their notes, even though it means making a special arrangement to borrow the projector.

Questions on scenario

Is this form of reproduction a violation of copyright laws?

If so, how could Francesca avoid violating copyright in this situation??

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South Africa

As discussed in the response to case 2, it is not clear from the South African Copyright Act how much copying is allowed for teaching purposes. The guideline given is that the use of the work should be “compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose”. It is therefore not clear whether The Act does not make any distinction between digital and non-digital copies.

Changing the format of a copyright work, as Francesca did when making a transparency of the work, means making a copy. Making a copy without the copyright holder’s permission is a copyright infringement. To do so legally, Francesca will need a copyright licence from the copyright holder. It would be very difficult and time consuming for each individual teacher to contact the copyright holder directly, creating the need for a convenient way to gain the necessary permission, as offered by collecting societies.

Francesca should contact DALRO (the Dramatic, Artistic and Literary Organisation) in South Africa (http://www.dalro.co.za/index.php?option=com_content&view=article&id=68&Itemid=79). As collecting society for literary works they offer both transactional (general) and blanket licences to individuals and institutions wishing to make copies of such works. They then collect and distribute royalties on behalf of copyright holders.

Francecsa should inquire whether schools in South Africa already have a blanket licence agreement with DALRO and whether the work she wants to copy is covered by this agreement. If no agreement exists, she should request such an agreement for a blanket licence in order to legally make as many copies of the work as she needs for her teaching purposes. Such an agreement would typically be valid for 1 year, with the option of renewal for a fee.

A blanket licence would better serve her needs and the needs of the school, as they do not need to record every copy made as they would have to with a transactional/general licence, and the amount to be paid would be much less variable than with a transactional/general licence, allowing for easier budgeting and fund raising if necessary

Would a blanket licence obtained from DALRO offer Francesca and her colleagues more freedom than the fair dealing provision in the SA Copyright Act? Probably, as the provision in the Act is not clear and the freedoms provided for in the licence would be express.

Australia

It is not clear from the case study how much of the original work Francesca is transcribing onto the transparencies, if it is less than 2 pages or 1% of the original work then Australia has an educational exception. She is transcribing by hand.

Educational exceptions SECT 135ZMB

There are exceptions that are specifically for education and allow free use of certain copyright materials in certain circumstances.

1. Reading, performing and reciting a text work during classCopyright is not infringed by a teacher or student performing, reading or reciting a literary work while giving or receiving educational instruction in a class.
2. Communicating a text work for classroom performanceCopyright is not infringed by communicating a text work to allow it to be performed in class eg displaying it onscreen using PowerPoint or using an electronic whiteboard.
3. Copying by hand
4. Copying for exams

This would also apply if she did have access to technology to use the smart board.

If she is using more than an insubstantial amount (1% – 2 pages), then Part VB statutory licence would kick in.

India

The response for India for scenario 3 is the same as for scenario 2. The Indian Copyright Act (1957, as amended up to 1999) specifies that reproduction of a literary, dramatic or musical work by a teacher or a pupil in the course of instruction, does not infringe copyrights: “The following acts shall not constitute an infringement of copyright, namely…. the reproduction of a literary, dramatic, musical or artisticwork— a teacher or a pupil in the course of instruction; or part of the questions to be answered in an examination; or answers to such questions;” (Section 52, article h, clause i-iii). This is means that Francesca is allowed to copy the work onto transparency in order to present the material to her students. She need not go through the effort to get a projector though as Indian law also permits her to make copies of the work for the students enrolled in her class. It is good scholarly practice for her to give attribution to the original source, but not technically a requirement of the Copyright Act.