Copyright for Educators

What exceptional uses can Xuan make of the resources, including how much of which resource and under what conditions?

In Australia:

Xuan has a number of options open to her. Australian education operate under a statutory licence scheme, whereby public education insitutions have entered into agreements with collecting societies, that allow their teachers/lecturers to copy without permission, as long as some conditions are met. Xuan’s resources are all text based, so she would copy material to hand out to her students under the Part VB licence.

One of the conditions to copy no more than 10% of the number of pages or One chapter (if its divided into chapters) either printed or electronic or An article from a newspaper, magazine or journal (or more than one if its on the same subject) or 10% of the number of words in an electronic work (Internet/CD-Rom etc). So for the newspaper article and the textbook she could copy up to the limits.

For the photograph she could copy as long as she can answer the fairness questions of 1. Why do you want it? 2. What type of work is it? 3. 3.Can you easily get your own copy? 4.4. What effect will the copies have on the market, or value of the work? 5.5. If its part of a work, how much, how important or distinctive is it, in relation to the entire work? It is likely that Xuan could copy the entire photograph. The other condition is that Xuan provides a reference or citation of where she extracted the resources from. This is useful, by also providing for moral rights, the right of attribution.

If Xuan chose not to copy the resources herself and just direct her students to the resources, they could then copy the material themselves accessing their fair dealing right of “reseach and study”. This allows people who are undertaking research or study (not necessarily in registered courses) to copy material in the course of their research or study. Although the same conditions are placed upon the students ie. the 10% limits and the referencing. This explanation is predicated on the assumption that Xuan is at a public education system, if she was not, the statutory licence would not be available to her, but fair dealing would still be available to her students.

In India:

Section 52 of the Indian Copyright Act 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. But it is essential to specify the original source of the work.

Xuan can, therefore make use of the resources, as long as she tells her students, the original source of the works.

In South Africa:

Section 12 of the South African Copyright Act deals with exceptions to standard copyright provisions. These allow the use of copyright works for certain purposes without the consent of the copyright holder (SA Open Copyright review, Rens, 2009). Section 12(1) makes provision for the concept of fair dealing (rather than the American fair use) for the purposes of (i) research or private study, (ii) criticism or review, and (iii) for the reporting of current events in newspapers, magazines, broadcast or film. Section 12(4) makes specific provision for exceptions for teaching, provided that the use is compatible with fair practice and that the source and author is mentioned in full.

Fair dealing is generally accepted for personal educational purposes. Should a researcher, lecturer or student make a copy of a copyright work for research or private study purposes, criticism or review, it is considered to be fair dealing. Xuan and her students could therefore individually access and copy the original copyright works for these purposes.

The key question lies with how much, if anything, Xuan could copy and distribute from these works for teaching purposes. Based on the provisions from the Act mentioned above, Xuan should be able to copy these works to the extent that it is fair practice. However, fair practice is not defined and open to interpretation.

In practice, interpretations differ greatly. Many textbook include a copyright notice that forbid the copying of any part of the book for any purpose. This is however in clear contradiction with the provisions in the Act. Publishers and other copyright holders may base their interpretation on the Berne three step test, including reference that exceptions and limitation can not include any activities that unreasonably prejudice the legitimate interests of the rights holder. One of these interests would be the exclusive right to gain economic benefit from the copyright work. Some argument can be made that copying an entire textbook, be it by Xuan or the students, would interfere with this right and there have been instances where authors have challenged students and copyshops on these grounds.

In the absence of any official guideline on which percentage would be reasonable to copy from a copyright work, Xuan would have to ensure that her use (through copying) of the works is “compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose”. Arguments could be made for copying a chapter of a book or 10% of the total work as in the Australian case is justifiable and not excessive. It could be motivated that complete copies of the full article and photograph are needed for the course and can not easily be obtained in other ways by the students.

SA higher education institutions often have agreements with publishers and/or collections agencies to make certain payments to them on an annual basis as compensation for the use of some copyright works without express permission by the copyright holder, including copying and distribution within the context of research, teaching and learning. Xuan should check whether the works under discussion is covered in such an agreement concluded by her institution.

All the groups have thinned out a little, with some participants unable to continue participating.
That places a much greater workload on remaining group members, so its been decided to reduce the workload. From now on the required questions for assignments consist only of the questions relating to the scenario. Groups are no longer required to answer the general questions, which are generally identified as “questions for your understanding” .

To give feedback to the other groups you need only give a single quantitative score for all their answers, as an overall indication.
In other words you need only rate all of another groups answers with a single score out of 10 each week. Of course what is at least as useful is an qualitative feedback, on what you believe the other group have done successfully and what they could improve.

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)

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

A. Factual data on of local weather patterns?

No, you cannot copyright facts. Copyright protects creative expression. Facts are discovered, not created. Therefore, facts as such cannot be copyright, but a particular style of presenting them, etc may be copyrighted. For example, a basic 2 dimensional table of facts, a simple pie chart, or a basic bar graph would be an obvious arrangement of facts and not eligible for copyright (U.S. law). A more creative expression of facts, such as intricate information visualization or an article interpreting and analyzing the facts and how they were captured would be more creative and therefore eligible for copyright.

B. Original research by Professor Dube

Yes, provided Professor Dube wrote the research down or captured it using her own expression/words in way that is distinct from the journal article.

C.  NASA satellite images of clouds

NASA’s guidelines on copyrights mentions that photographs are not protected by copyright unless noted. NASA permits using it’s imagery, video and audio material for educational or informational purposes, including photo collections, textbooks, public exhibits and Internet Web pages. If a recognizable person appears in the photograph,use for commercial purposes may infringe a right of privacy or publicity and permission should be obtained from the recognizable person.

But, it could be argued that the images can be used, for the following reasons -

1. NASA is a federal government agency and under U.S. law documents created by the federal government and employees of the federal government as part of their regular job are in the public domain.
2. These are satellite images. If they are purely scientific images of clouds and there was no artistic expression added on top of the images (e.g. sketches on top of the images), they would not be eligible for copyright.

D.  Local weather patterns written by the local bishop in 1905.

1. If the bishop’s account is just a collection of facts and contains no original/creative work, Copyright will not subsist for it.
2. Else, If the bishop had died before 50 to 70 years (depending on the jurisdiction), the copyright on them would’ve expired and the account would be in public domain.

E. Published article in international journal

Yes, this is an original literary work fixed in written form.

F.  Prof Dube’s course pack

Yes, this is  a compilation, fixed in written form.

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

She should check her agreement with the journal publishers. Some publishers allow draft versions of the articles to be self-archived and made available to students or anyone else in that way. Otherwise she can describe the content of the article in other words in a new work. The copyright only applies to that fixed version of the work and not to the ideas contained in it.

In future, she should negotiate terms with her future publishers such that she can keep for herself the rights to use her published articles in her teaching and further research.

Questions:

1. What is copyright?

Copyright is a variety of rights given exclusively to the owner of certain creative works to reproduce that work, part of that work, to show that work or perform that work in public, create derivative works or market and sell it. These rights appy to any expressible form of an idea or information that is substantive and discrete and fixed in a medium.

These rights allow the owner to prohibit others from reproducing their work or communicating that work without permission. There is usualy a time limit to this copyright. Owners may sell their rights or license their copyright to others. In Australia, copyright is issued automatically as soon as the creative work is printed or recorded in a material form.

Domestic copyright legislation usually says who has copyright in official works such as legislation. In Commonwealth countries such as Australia, Britain and Canada, copyright in official works is often referred to as Crown copyright.

Where domestic law offers no protection, Protocol 2 of the UCC of 1952 protects officialworks of the United Nations, UN agencies and the Organization of American States.

2. What activities does copyright prohibit?

Standard copyright prohibits anyone other than the copyright holder to

• copy/reproduce the work;
• make derivative works of the work;
• sell or distribute copies of the work; or
• perform the work in public

without the consent of the copyright holder.

3. Does copyright cover ideas or only expressions?

Copyright only covers works or expressions of ideas. It does not cover ideas, unlike patents.

In the Indian context, works in which copyright subsists is

• Original literary, dramatic, musical and artistic works
• Cinematograph films
• Sound recordings [Subs. by Act 38 of 1994, s. 12, for "records"; But the Berne Convention has never given copyright protection to those who produced sound recordings.]

Fixing a work or fixation is to put a work in some material form. The Berne convention leaves the choice of whether or not fixation is essential for a work to qualify for copyright.  Most countries require that a work be fixed in some tangible form.

In South Africa the following works, are eligible for copyright—

1. literary works;
2. musical works;
3. artistic works;
4. cinematograph films;
5. sound recordings;
6. broadcasts;
7. programme-carrying signals;
8. published editions;
9. computer programs.

In Australia the following works are eligible for protection under copyright

1. Written material
2. Artistic works
3. Musical works
4. Dramatic works
5. Computer Programs
6. Compilations
7. Films
8. Sound recordings

4. What requirements must resource meet for copyright to apply?

In South Africa the following requirements must be met:

1. The work must be original
2. The work must be written down, recorded, represented in digital data or signals or otherwise reduced to a material form.
3. In the case of a broadcast, it has been broadcast and, in the case of a programme carrying signal, it has been transmitted by a satellite.
4. The work must not infringe the copyright in some other work

5. 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 or creator has certain economic rights over their works, that is the right to copy, publish, broadcast, digitize, and if applicable perform their works. The author or creator also gets certain moral rights to their works, that is the right of attribution, a right not to be falsely attributed, and a right of integrity.

Someone who owns the economic rights in their work (initially the author or creator) has the right to “sell” the economic rights in their works, a complex series of options may have occurred when Zanele signed the agreement with Unique International Journal of Development to have her article published in the journal. In the past, Journals quite often required a complete assignment (or selling of all economic rights) to their Journal, leaving the author with little economic rights. Today these options vary considerably. The case study implies that Zanele has probably assigned the copyright to the Journal, completely. While Zanele has limited options regarding the copying of the work, there is still the moral rights to the work. Zanele usually retains the moral rights to the work, this will enable Zanele to manage how others who get copyright over her work use her work. That is the Journal must attribute Zanele, and they cannot change the work in any way that may subject the work to derogatory treatment, that is, prejudicial to the authors honour or reputation.

In Australia, Zanele would also be able to access the statutory licence, that the University would have signed with the collecting society (Copyright Agency Limited), this enables Zanele to include an article from a journal in her readings, hence her own article. Although this does come at a cost to the University through a payment scheme.

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

The public domain is a grouping of intellectual works that are not owned or controlled by anyone but are rather public property and free for use by the public. A work enters the publiuc domain when the copyright period mandated by law, expires. This is typically either after life plus 50 years or 70 years [60 years in India], depending on the jurisdiction. A work also enters the public domain when someone chooses to relinquish their copyright and put the work in the public domain.

Case Study: Week 1

Part 1: Which of the materials used by Professor Dube are subject to copyright? Why or why not in each case?

Subject to copyright:

• Any original writing by Professor Dube would be subject to copyright as long as it was captued in a fixed medium.

Not subject to copyright:

• Factual data about local weather patterns, because facts by themselves do not represent original or creative ideas and cannot be copyrighted.
• NASA satellite images of clouds are in the public domain because they are works of the United States Government. US Government works are not subject to copyright. Sometimes NASA and other government organizations note that some of the materials they publish or distribute may be protected by copyright, but this is only applies to third-party content mixed in with NASA-generated content.

Possibly subject to copyright:

• A lengthy account of local weather patterns written by the local bishop in 1905 could still be subject to US copyright if it was unpublished. While pre-1923 works are in the public domain if they have been published (and would enter the public domain after 95 years from the date of publication), unpublished works are under federal copyright for at least the life of the author plus 70 years. So if the bishop’s account of local weather patterns was unpublished it could still be subject to federal copyright, depending on how long the bishop lived.

Part 2: What could Professor Dube do about the refusal to allow her to assign her own article?

The professor should refer back to her contract with the publisher to see what rights she has given to the publisher. While most publishers require authors to grant them exclusive distribution rights this can vary. Another important point to make here is that just because an organization, such as a publisher, asserts itself as an exclusive distribution chanel does not mean this assertion is correct. In the United States Professor Dube could assert fair use, make photocopies of her article, and assign it to her class. Section 107 of the US Copyright Act explicitly identifies photocopying for classroom use as permissible and fair. If she makes a fair use of the article, she can do so without the publisher’s permission, and can do so even if the publisher says she can’t.

Questions:

1. What is copyright?

   Copyright is a “bundle of rights” governing who may use a creative work and how. It is a limited monopoly granted by governments to authors and creators “for limited times” that grants creators a certain amount of control, but not total control, over the use of their works. Copyright comes with five major rights: The right to copy the work, the right to distribute copies of the work, the right to create derivative works, the right to perform the work, and the right to display the work. In addition, copyright holders are able to transfer or license these rights to others.

2. What activities does copyright prohibit?

   Copyright limits certain uses of a creative work, but because there are exceptions to those limitations, it’s hard to say whether copyright absolutely prohibits some kinds of activities. The exclusive rights of the copyright holder are the right to copy the work, the right to distribute copies of the work, the right to create derivative works, the right to perform the work, and the right to display the work. As a result, it would appear that copyright prohibits everyone from doing those things with a creative work unless they are the copyright holder. However, it is possible to do things such as make and distribute copies, or create derivative works, in a manner that would be considered fair use or fair dealing and hence not prohibited. If a use is not fair, or otherwise protected by an exception to the exclusive rights of the copyright holder, then it is prohibited. Some kinds of uses that are probably not fair include making and selling copies for profit that compete with the original in the marketplace; making a derivative work that is not considered a parody or transformative in some way; performing the work publicly in a commercial setting without permission.

3. Does copyright cover ideas or only expressions?

   Copyright only covers expressions.

4. What requirements must resource meet for copyright to apply?

   A work must be an original literary or artistic production. In most countries, it must involve some small measure of creativity, but in other countries, the investment of “hard work” absent creativity (the phone directory example) suffices. A work must be “fixed” in some tangible form, such as on paper, on celluloid, on canvas, made of copper, or even on a hard drive. This can get tricky, but, as an example, in the case of choreography, the choreographers’ notes are considered the choreography for the purposes of copyright.

5. 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?

Authors can sell some of all of the economic rights of their copyright, but not right to be known as the author. In places where there are moral rights, such as the UK and France, the author maintains the moral rights even if all other rights have been sold or transferred. Moral rights include “the right to claim authorship of the work and 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.” As such, the author could control the derivatives of the work if she could prove that it would negatively impact her reputation.

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

Public domain describes works where copyright does not apply. They may be used by anyone, anywhere, anytime without permission, license or royalty payment. Works enter the public domain when copyright term ends or the copyright has been abandoned. The copyright term lasts for a minimum of 50 years beyond the death of the copyright holder, depending on the country. In the US and EU, this has been extended to life plus 70 years. Works can enter directly into the public domain if an author declares no rights reserved. Additionally, original works by the US government, some other federal governments, and some state governments are not copyrighted and – save for some statuatory exceptions – enter automatically into the public domain.

The due dates for the group assignments have been changed:

The due dates are now as follows:

Week 1

Assignment due Monday 14 September,
Feedback due Wednesday 16 September

Week 2

Assignment due Monday 21 September,
Feedback due Wednesday 23 September

Week 3

Assignment due Monday 28 September ,
Feedback due Wednesday 30 September

Week 4

Assignment due Monday 5 October ,
Feedback due Wednesday 7 October

Week 5

Assignment due Monday 12 October,
Feedback due Wednesday 14 October

Week 6

Assignment due Monday 19 October,
Feedback due Wednesday 21 October

Why have we changed the dates? Following a discussion with core leaders of p2pu it was decided that a due date on a weekend makes co-ordination difficult for groups, since some members may be away on a particular weekend, or have a religions objection to working on a Saturday or Sunday. As a result we’ve moved all the due dates one day forward, so that all assignments are due on Mondays and all feedback to other groups due on Wednesdays. These kinds of adjustments are inevitable in a pilot such as this. Please bear with us.

1. We have placed you into working groups. Allocations have been made according to location, time zone and comparable legal jurisdictions. There are three groups in total; Orange, Yellow and Pink.

2. Each week your group has to complete two task

(a) agree an answer to the set questions for that week and

(b) as a group give feedback to both the other groups.

3. Groups are expected to use the group page to generate that week’s answers but post the final answers on the blog by 24h00 UST on Sundays of the week in question. The final answers for each week should not exceed 2000 words but can be much shorter.

4. Groups will also use the blog to give feedback to the other two groups. Feedback of other groups will be evaluated by the course leaders. Feedbacks for other groups must be posted by 24h00 UST on Tuesday in the week in question.

5.Total Feedback for each group is based on both the weekly answers as assessed by the other groups, and also the evaluation of Feedbacks.

6. Give feedback on the answers by the others groups by looking at the – accuracy, clarity, utility of their answers. Use a simple scale of 0 to 10 to give Feedback, with 0 being awarded for a failure to provide answers, 1-4 for weak or flawed answers, 5 for adequate, 6 -7 for good, and 8-10 for excellent.

7. Provide an explanation of your feedback rating.

8. The due dates are as follows:
Week 1

Assignment due Sunday 13 September,
Feedback due Tuesday 15 September

Week 2

Assignment due Sunday 20 September,
Feedback due Tuesday 22 September

Week 3

Assignment due Sunday 27 September ,
Feedback due Tuesday 29 September

Week 4

Assignment due Sunday 4 October ,
Feedback due Tuesday 6 October

Week 5

Assignment due Sunday 11 October,
Feedback due Tuesday 13 October

Week 6

Assignment due Sunday 18 October,
Feedback due Tuesday 20 October

Last day of the course: 21 October

The calculation of the final evaluation will take into account the reduced time that you have been given in week 1.

9. There is a considerable amount of work so groups are encouraged to share the various tasks amongst yourselves but ensure that you pass your individual learning on to one another.

10. Your group can use the chat room to organise your work. Use the chat room schedule wikipage to arrange the sessions.

11. A course leader will usually be available in chat once a week. These times will be announced in the chat room schedule. Please check the chat schedule wiki page as these details may change from time to time.

Welcome to 1st Peer to Peer University Copyright for Educators.

This is where each group will be posting the final answers to eachweek’s questions. It is also where each group will comment on the answers by other groups. You will use the group wiki page to work out your answers, and discuss the issues.