Copyright for Educators, Cycle 2 - Mar 2010

Here's my first draft. Not totally confident about all aspects, so if you think I've got something wrong please change it. As discussed, I'm going to be away from internet connections for a few days, so could you submit it once you are happy with it? Thanks, Phil.

Case Scenario 3 - Lime Group, UK Law

Details of the scenario: http://p2pu.org/assignment/case-study-scenario-week-3
The jurisdiction for our group is the UK. All statutory references are to the Copyright, Designs and Patents Act 1988, as amended: http://www.ipo.gov.uk/cdpact1988.pdf

1.In your jurisdiction is she permitted to make multiple photocopies of a chapter of a textbook and in what circumstances? Consider any exceptions, compulsory or blanket licence schemes that may apply?

As discussed in last week's assignment, section 32 of the Act permits copying of a literary, dramatic, musical or artistic work in the course of instruction. However, the section specifically excludes any copying done by a "reprographic process". According to section 178, this means a process (a) for making facsimile copies, or (b) 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.

Since Francesca is making photocopies of the textbook, this is a reprographic process, and section 32 would not be available to her. Section 36 permits reprographic copying, but is limited to 1% of the work. Copying a chapter would not be permitted under this provision.

Since the statutory scheme does not provide a means by which Francesca can lawfully copy and distribute, she would need to rely upon a licence from the Copyright Licensing Agency [CLA]. Until 31 March 2000, state schools in England and Wales were covered by a CLA photocopying licence held by all local education authorities. Since 1 April, CLA have been operating a new licensing scheme and each school must now have its own licence. If Francesca's school has a license, this will permit photocopying of up to one chapter from a textbook, or 5% of the work, whichever is greater. This would permit Francesca to distribute copies of a chapter from a specific book on one occasion, but if she wishes to distribute subsequent chapters during the same 'course of study', she should ensure that she does not copy more than 5% from the same textbook. In theory, she could distribute one chapter from textbook A, one from textbook B, and so on, provided that she did not take more than 5% of any book, although this might be confusing to students.

2.Is she allowed to download and copy images from the internet to present on an interactive smartboard to her class?

Under section 16, it is an infringement of copyright to do any of the following without the licence of the copyright owner, or other legal justification:
(a) to copy the work;
(b) to issue copies of the work to the public;
(ba) to rent or lend the work to the public;
(c) to perform, show or play the work in public;
(d) to communicate the work to the public;
(e) to make an adaptation of the work or do any of the above in relation to an adaptation.

Section 34 provides that the performance of a literary, dramatic or musical work before an audience of teachers and pupils at an educational establishment, in the course of the activities of the establishment, is not a public performance. However, this provision does not apply to artistic works, such as the images which Francesca has downloaded from the internet (assuming that these images are copyright works, and not images in the public domain).

In addition, apart from 'showing' the works, she has also 'copied' them, by downloading them from the internet. Since this is a form of reprographic copying ('any copying by electronic means'), section 32 of the Act will not be available. Also, under the strict terms of the license offered to schools by the Copyright Licensing Agency, electronic copying from internet sources is not covered. (Licenses for higher education do permit this form of copying, but it is not included in licenses for other forms of education).

At present, Francesca's only lawful option would be to check the copyright notices on the relevant websites, and select images whose use in educational settings is specifically authorised. However, the CLA will be introducing a new license this month (April 2010) which will provide all schools with the permission to re-use digital and website content that has been opted into the licence, and this material will become available to schools from 1st October 2010. See: http://www.cla.co.uk/licences_available/schools/

3.Is she allowed to include copy music recordings in her powerpoint presentations to her class?

Section 34 does cover the performance of a musical work for pupils at an educational establishment, so this would not be treated as a public performance under section 16. However, it appears that Francesca has 'copied' the work, by adding it to her PowerPoint presentations. The CLA licensing scheme does not appear to include such uses. In order to remain within the law, Francesca should try to find music which has been made available for educational purposes.

4.Can she make a compilation of short extracts from dvds of films and/or copy broadcasts from television to teach her class?

If her school has a licence from the Educational Recording Agency, she will be permitted to record broadcasts, and show copies of the broadcasts to her class. She would also be permitted to show extracts from lawful copies of DVD films to her class, relying on the section 34 provision that this is not a public performance. However, she probably cannot make copies of parts of DVDs or broadcasts, and combine them into a 'compilation' without the permission of the copyright owners.

5.Is she permitted to circumvent any technological protection measures attached to the DVD films?

No. Section 296ZA applies where 'effective technological measures' have been applied to a copyright work other than a computer program; and a person does anything which circumvents those measures knowing, or with reasonable grounds to know, that he is pursuing that objective. Someone issuing the work to the public copies, or communicating it to the public, has the same rights against such circumvention as a copyright owner in relation to copyright infringement. There is also a criminal offence under section 296ZB for various dealings with a 'device, product or component' primarily designed or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures.