This Blog is written by Vanshika Mehra of Kirti P. Mehta School of Law, NMIMS
INTRODUCTION
Evidently, Information and Communication Technology (ICT) has become an indispensable part of our lives and since its penetration into our lives, it has bridged many gaps. Despite the fact that COVID- 19 pandemic has caused a huge wreck in almost every arena, and to be specific, the education sector has experienced a complete transformation in the conduction of teaching and learning process, technology has acted as a boon to ensure the functioning of this sector during this difficult phase. However, the issue of copyright over the course material acts as one of the key challenges to e-education. It is important to address the concern if exceptions enlisted in the Copyright Act are applicable to the teaching and learning process carried out through digital interfaces. The article aims at understanding this issue and explicating the current provisions in regard to the same.
THE LAW
Basically, the focus of the law of copyright is directed towards the protection of literal expression of ideas, instead of merely the ideas. It has been specified in TRIPS A9 (2) that copyright protection is extended to expressions and not ideas, procedures, methods of operation or mathematical concepts as such.[1] Throughout India, according to section 13 of the Copyright Act, 1957, copyright is applied to the classes of work which pertain to original literary, dramatic, musical and artistic works; cinematographic films; and records.[2] By virtue of section 14[3], it grants this exclusive right on the owner over the original creation and they have the authority to decide if they solely want to enjoy the right or also grant it to a third party through the means of licensing. Despite this concept of exclusivity, there are certain exceptions, in the prevalence of which it is permissible to make certain uses without any prior permission from the owner or any specific authorization on their part.
DOCTRINE OF FAIR USE
The Doctrine of Fair Use follows from the Doctrine of Equity, which is related to the concept of natural justice. The Doctrine of fair use stands as an exception to the exclusivity attached to the copyright protection as possessed by the creator of the work. Section 52[4] of the Copyright Act, 1957 provides for the scope of fair dealing by stipulating certain exceptions. The exceptions which are relatable to copyright on educational material are: (g), (h), and (i). Section 52 (h) pertains to reading or recitation of reasonable extracts from a published literary or dramatic work in public. Section 52 (g) explains that even the non- copyrighted work, if published without permission but with the bonafide intention to use for educational purposes, it cannot be concluded as the violation. But there lies a condition to it which restricts the amount of work to be published by the same publisher, to not more than two passages from work by the same author during any period of 5 years. Lastly, section 52 (i) specifies that the reproduction of artistic, dramatic, literary and musical work by a teacher or a pupil in the course of instruction or as a part of the question to be answered in the examination or as a part of answers to such questions. Reproduction of the work is basically copying of the entire or substantial part of the original. It implies that the work reproduced for the studies purpose won’t be counted as the infringement of copyright, since there is no unreasonable purpose attached to it. A13 of TRIPS states that members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.[5]
FORTUNE OF ONLINE EDUCATION AMIDST COVID-19
With the virus spreading recklessly across the globe, the almost entire world ran into lockdown from the month of March 2020. Since the schools, colleges and other educational institutions shut down, the teaching-learning process moved to the online and digital platforms with the aid of technology. With this shift of platform, the issue of copyright has been highlighted. The common concern of the authors or owners is that their copyrighted work can be easily accessed, copied and disseminated for it is electronically stored in online platforms. In remote teaching, it becomes inevitable to provide students with the course material through the online mode so that they can refer it for self- learning. Unlike offline environment of education, copyright cannot be controlled by the number of physical content copied, distributed, deleted or modified and thus it poses a challenge to the determination of specific use of even teachers’ course material by the third parties.[6]
It is important to note that section 52 of the act doesn’t specify the environment in which the reproduction or publishing without prior permission is exempted, but only indicates that it shall be done in the ‘course of instruction’ as mentioned in section 52 (1) (h). In the case of The Chancellor, Masters & amp; Scholars of the University of Oxford & Others. v. Rameshwari Photocopy Services & amp; Others 2016, the Delhi High Court interpreted the phrase ‘course of instruction’ as imparting and receiving instruction not being limited to the only personal interface between teachers and pupil within the four walls of the classroom, but also be extended to online education.[7] In addition, WIPO Copyright Treaty accepts the application of reproduction rights to the digital environment. Also, Article 9 of the Berne Convention states that reproduction encompasses the storage of work in an electronic medium.[8]
Section 52 (1) (n) of the amendment act permits the storing of a work in any medium by electronic means by a non-commercial public library is the library already possesses a non- digital copy of the work. It indicates that under this provision of fair dealing, the institutions can claim protection if the digital copy of the textbooks, available in their physical library, is uploaded by them. This provision is capable of protecting the institutions if/ when they provide the accessibility of textbooks and easing the process of distance learning.
In the parlance of video/ audio recordings of online lectures for students to refer it again on online platforms like YouTube is also a question of copyright. Making these recording available to the public will be considered as a publication which falls under section 52 (1) (h). However, this section limits the usage of the copyrighted work up to two passages only, which is difficult to ensure in the case of online mediums. If YouTube is used for uploading the videos, the first rule of copyright in the platform stipulates that creators should upload only those videos that they originally have made or that they are authorized to use.[9] This is called Fair Use Protection that is offered by platforms like YouTube, and there is a fair chance for it to prevent the educators from using the platform which is perhaps more accessible than others.[10] Additionally, the uploaded videos can be marked as unlisted so that they are stalled from appearing on the public pages.
CONCLUSION
Being a responsible and ethical digital citizen is everyone’s duty; however, there are certain exceptions which allow for cropping the scope of an act; in the present case, cropping that of the Copyright Act. Not only because of the current time of COVID- 19 but even in a normal scenario, it is imperative to provide the academic resources through the internet to the students, in the same manner as physical resources are provided. However, it sometimes becomes controversial and difficult because of the existence of certain ambiguities which are required to be addressed. For instance, the condition of limitation on the quantum of publication in section 52 (1) (h) is vague and impractical, especially in the case of online recordings. Also, the creators can use various measures, like substituting the copyrighted material with open access resources for recorded lectures[11], for dealing with this insecurity. Although using copyrighted material for educational instruction is a legal exception, but the legislature needs to relook at the prevalent provisions and make the required amendments so that the continuity of education isn’t hampered because of any circumstantial changes, taking into account the fact that digital libraries and e-learning platforms have become a routine part of everyone’s lives.
[1] Justin Malbon et al., The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (Edward Elgar Publishing) (2014), available at: http://www.elgaronline.com/view/9781845424435.xml (last visited Aug 15, 2020) [2] Sukhdeep Singh, The Copyright Act, 1957, 39 [3] Id. [4] Copyright (Amendment) Act, 2012, 14 [5] Malbon et al. - 2014 - The WTO Agreement on Trade-Related Aspects of Inte.pdf, available at: https://www.wto.org/english/docs_e/legal_e/27-trips.pdf (last visited Oct 16, 2020) [6] As teaching shifts online during the epidemic, it faces copyright issues, available at: https://news.cgtn.com/news/2020-02-20/Copyright-concerns-as-teaching-shifts-online-during-epidemic-OejyJkh3xu/index.html (last visited Oct 16, 2020) [7]Copyright Law: Fate of Online Education During and After COVID-19 Libertatem Magazine, available at: https://libertatem.in/articles/education-during-and-after-covid-19/ (last visited Oct 16, 2020) [8] Id. [9] YouTube copyright and fair use policies - How YouTube Works YouTube copyright and fair use policies - How YouTube Works, available at: https://www.youtube.com/howyoutubeworks/policies/copyright/ (last visited Oct 16, 2020) [10] CovEducation, Copyright and Fair Use in India SpicyIP, available at: https://spicyip.com/2020/04/coveducation-and-copyright.html (last visited Oct 16, 2020) [11] Id.
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