Open Education II: Does posting online lectures/notes break copyright laws?

This is going to be a complicated issue because of the regional nature of copyright laws.  I will deal with the UK, Canadian, and US laws as I see them (and perhaps others can correct me if my interpretations are incorrect!  Naturally, anything stated here does not constitute legal advice and everything could be completely wrong…):

Copyright and Education in the UKFlag_of_the_United_Kingdom.svg

We are fortunate in the UK that, while much of our legal system is horrifically out-dated (see the libel law campaigns, bishops sitting by right in the House of Lords, or the blasphemy law having only recently been repealed) issues of copyright in education are fairly straightforward.  The Intellectual Property Office in the UK Government has the following to say (the relevant part of the Copyright, Designs and Patents Act can be seen here):

A number of exceptions apply to schools, universities and other educational establishments.  These are:

1. Copying a literary (written), dramatic (theatrical performance), musical or artistic work (paintings, drawings, photographs, etc) in the course of teaching as long as a reprographic process is not used (reprographic process means using a fax machine, photocopier or any appliance which makes multiple copies). Therefore, this exception could cover teachers writing material on the board or an overhead projector and students making their own copies by writing, painting, typing, etc.

2. Anything done for setting or answering examination questions (this does not include photocopying music that is to be performed in an exam)

3. Performing, playing or showing copyright works in a school, university or other educational establishment for educational purposes. However, it only applies if the audience is limited to teachers, pupils and others directly connected with the activities of the establishment.  It will not generally apply if parents are in the audience. Examples of this are showing a video for English or drama lessons and the teaching of music. It is unlikely to include the playing of a video during a wet playtime purely to amuse the children.

4. Recording a TV programme or radio broadcast for non-commercial educational purposes in an educational establishment where there is no licensing scheme in existence. Generally a licence will be required from the Educational Recording Agency

What this effectively means is that you cannot break copyright law so long as you are using copyrighted material for educational purposes on educational premises for teachers and students.  There are, naturally, issues with attempting to restrict access to whatever you produce.  However, there are ways and means to accomplish this, and I will discuss them in the next post on tips and tricks for providing online content.

Copyright and Education in CanadaCanadian_Flag

The Canadian situation is different, as (like the US system of copyright) there are nuanced interpretations of certain terms in the laws that determine whether copyright has or has not been violated.  In Canada, the term is “Fair Dealing”.  The Copyright Act of Canada explicitly states that “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright”, with the educational amendment having been brought in in2010 specifically to permit the use of otherwise copyrighted material in teaching (http://laws-lois.justice.gc.ca/eng/acts/C-42/page-18.html?term=educational+education#s-29.4).  Elsewhere in the Act, we are told that “It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work, or do any other necessary act, in order to display it.”  Sounds clear-cut, right?

However, the details are hazier as we look more closely.  For example, were I to post a recording of a lecture on the internet then that would be fine (sections 29.4 – 30 cover this).  However, as for the UK situation, I would have to limit the audience to those students enrolled in the course and the staff of the institution at which the course was run.  I would also have to delete the lecture after 30 days of completion of the course (as would any students who had downloaded it).  Once you start to read the details, it becomes clear that the law is ambiguous on these newer aspects of technology (as are all laws).  However, there doesn’t seem to be any problem with the use of whatever material you like so long as (i) access is limited to staff and students, (ii) the material is not kept for more than 30 days, and (iii) proper acknowledgement is given.

Copyright and Education in the US 

The US has a similar situation to Canada, using a concept known as “Fair Use” to determine whether copyright has been infringed.  Section 107 of title 17, United States Code as amended in 1990 and 1992 states that “…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”  A primary concern in determining whether an activity constitutes fair use is “whether such use is of a commercial nature or is for non-profit educational purposes”.  There might be concerns at private US universities, then, that they would not qualify for fair use.  The US Copyright Office has published a long and detailed description of the legal landscape on US copyright and education (http://www.copyright.gov/circs/circ21.pdf).

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