Copyright for Educators, Cycle 2 - Mar 2010

Details of this week's assignment: http://p2pu.org/assignment/cast-study-scenario-week-2

1. In your jurisdiction, what exceptions, if any, are available to Xuan to reproduce any of the above material? Please include how much of a resource and under what conditions.

The jurisdiction for our group is the UK. The law in the UK relating to copyright is the Copyright, Designs and Patents Act 1988 (hereby referred to as 'the Act').

If we think of copyright as a transaction between the creator or a work and user of that work, then just as in all other kinds of transactions there are roles, responsibilities and rights on each side. A creator of a work can expect that his/her work will not be copied or used without permission. But the user of the work also has rights, including the right to use or copy part of a copyrighted work without asking for permission, providing that part is not more than a substantial part. But how much of a work is a substantial part? In UK law this has not been defined, and this can be problematic, often being left to the courts to decide on a case by case basis. Context is everything, and 'substantial' is often a qualitative interpretation was well as a quantitative one. An example is sometimes used of the Mona Lisa painting, probably one of the most recognised paintings of all time. Take a square inch of the background of that painting, an obscure piece from the corner for example, and many might not ever recognise it came from the Mona Lisa. But take exactly the same size of sample, this time including the smile of La Gioconda, and probably everyone would know what it was. Two different pieces, both the same quantitatively, but qualitatively entirely different. Copying the smile from the Mona Lisa would almost certainly be classed as substantial copying, even in the ambiguity of UK copyright law (if the Mona Lisa was protected under UK copyright law of course).

Thankfully, there are other ways that a user can copy parts or the whole of a work without having to ask for permission. These are the exceptions to copyright law. Some are required by the 1886 Berne convention, some are allowed by it, and some are dictated by local jurisdiction. For this assignment we have been asked to look at the exceptions relevant to the educational use of a work subject to copyright.

The sections of the Act relevant to exceptions allowed for educational purposes are sections 32 to 36 online here: http://www.opsi.gov.uk/acts/acts1988/ukpga_19880048_en_3#pt1-ch3-pb3

In this assignment Xuan wants to use a range of sources in her seminar paper. Under permitted exceptions to use of copyright works, or fair dealing, copyright is not infringed when copying literary, dramatic, musical or artistic works without prior permission for educational use provided that the copying:

a) is done by a person giving or receiving instruction
b) is not done by means of a reprographic process, which means a process (i) for making facsimile copies, or (ii) involving the use of an appliance for making multiple copies, and includes, in relation to a work held in electronic form, any copying by electronic means
c) and is accompanied by a sufficient acknowledgement,

Given that background, then in relation to copying specific items:

* Photographic images from the New York Times online newspaper;

In UK jurisdiction, the copying of photographs for the purpose of reporting current events is not permitted under fair dealing. This is to prevent one newspaper for example from reproducing a photograph published in a competitor's newspaper. What's more, this particular photograph is online, therefore held in electronic form, and cannot be copied by electronic means without permission from the copyright holder because this would be classed as copying by a reprographic means, which is not allowed under fair dealings for educational purposes. So Xuan could not copy/paste the online photograph into her seminar paper without first obtaining permission from the copyright holder. Alternatively she would be allowed under educational use exception to copy the photograph by making her own drawing or sketch for example, but depending on the subject matter this would probably not be useful to her in her paper. Xuan would be better advised to find a photograph that conveyed the message or pictorial representation she wanted that was made available with a specific license that allowed her to do so. So, if the photo in the New York Times was owned by a photographer who had licensed this photo under, say, creative commons, that specifically allowed copying e.g for non-commercial use, then Xuan could be free to copy it without asking for permission. She could of course also ask the New York Times for permission to use that particular photograph.

* A short article from The Economist;

Xuan would be free to use all of this short article under the provision for fair dealing as set out under section 32 subsection (1) of the Act providing the copy was not made by reprographic means. That means she could not simply copy/paste it, at least not without permission as this form of electronic copying would be classed as reprographic copying. She could however re-type it without infringing copyright and without having to ask for permission. A degree of reprographic copying is allowable without permission (see below in relation to the UK Government's Stern Review) but this is unlikely to be relevent to the Economist article because it is short.

* Some extracts from UK Government's Stern Review on the Economics of Climate Change which is over 500 pages long; and

This review is subject to Crown Copyright and is available online as well as in printed form. As with the Economist article, Xuan would be free to use extracts of this report under the provision for fair dealing as set out under section 32 subsection (1) of the Act providing the copy was not made by reprographic means. That means she could not simply copy/paste the sections she wanted. She could re-type them without infringing copyright and without having to ask for permission. In UK jurisdiction it doesn't matter how long the whole work is, providing the copying not by reprographic means is for educational purpose and does not infringe the exceptions, she is free to make copies without infringing copyright. She must also remember to acknowledge the source of course.

There might however be good news for Xuan. In section 32 subsection (2) of the Act, up to one percent of a work may be copied by reprographic means in any quarter of the year. As this work is 500 pages long, she could in theory copy up to 5 pages or extracts from no more than 5 pages in total by reprographic means - that is she could copy/paste for example including the typographic arrangement of the original. Again, proper acknowledgement must be given.

* A chapter from the book The Weather Makers: the History and Future Impact of Climate Change by Tim Flannery.

Xuan could copy this chapter providing she did so by re-typing it. Apart from the practical problems of retyping a whole chapter, I would question the educational benefit of doing so, or reproducing the chapter in full.

She could potentially scan or photocopy the chapter if her college has purchased a licence from the Copyright Licensing Agency in the UK. These licenses allow teachers and students to scan extracts from books, journals and magazines providing the source was not on the excluded categories and excluded works list. The author of this work is Australian, so presumably the book has been published in Australia. Even if no international or UK versions of the book have been published and available to Xuan, Australia is one of the international territories included in the UK CLA's licenses.

Incidentally, the author has a web site to support this book and makes available several resources useful for teachers and students so she could investigate other ways of incorporating the message from this book chapter without resorting to copying the whole thing: http://www.theweathermakers.org/teachers.php

2. Is she permitted to play 5 minutes of the DVD to the class as part of her class presentation?

Yes. Section 34 subsections (1) and (2) allows the performance of a film at an educational establishment for the purposes of education, providing the film is not shown in public. By that it means providing the audience is comprised of teachers and students, in an educational establishment, for the purposes of education, then this is allowable without infringing copyright.

3. List the copyright exceptions in your jurisdiction that may be relevant to educational use.

The Act contains exceptions relevant to educational use, specifically:

Section 29 Research and private study
Section 32 Things done for purposes of instruction or examination
Section 33 Anthologies for educational use
Section 34 Performing, playing or showing work in course of activities of educational establishment
Section 35 Recording by educational establishments of broadcasts and cable programmes
Section 36 Reprographic copying by educational establishments of passages from published works

There may also be some exceptions allowed for Libraries and archives that would be relevant for educational use.