Digital
IP and Copyright Issues for
Education in Canada
(Draft #1)
Prepared
for the CANARIE-sponsored BELLE Project by:
Mike Wingham, Chief Technology Officer
Gary Euler, Vice President Operations
RightsMarket Inc.
Suite 500, 700 - 4 Avenue SW
Calgary, Alberta, T2P 3J4, CANADA
mwingham@rightsmarket.com
1. Background
2.
Terms of Reference
3. Introduction
to IP & Copyright
4. Copyright Legislation
5.
Management of Copyright
6. Digital Rights
Expression Languages
7. Recommendations
and Conclusion
4. Copyright Legislation
4.1 Current Legislation
As stated in the previous section, most countries
have similar copyright laws. A detailed examination
of the similarities and differences of laws in
different jurisdictions is beyond the scope of
this report.The remainder of this report will
be based on Canadian copyright law.
The text in italics in this section is from "Basic
Principles of Copyright", Department
of Justice. .Following each quotation is a commentary
on how the quotation relates to learning objects
and repositories.
Copyright is the exclusive right of the owner
of a work to produce or reproduce the work or
a significant portion thereof, in any form whatsoever.
Copyright also includes the right to perform the
work or any significant portion thereof.
Owner
In the context of learning object repositories,
there may be several people and organizations
that contributed to a particular learning object.In
addition, one of the main advantages of digital
learning objects is that they can be frequently
updated and revised to reflect new information
and changes to desired learning outcomes.The people
and organizations revising a learning object may
be different from those that originated it.In
fact there may be several versions of the same
learning object to meet the needs of different
learning jurisdictions and institutions.
The following questions arise:
1. Should restrictions be placed on revisions
and updates in order to maintain the integrity
of the object as envisioned by the original owner(s)?
2.
Repurposing issues.
3. At what point does a revision become a new
work? See original below.
Reproductions and Performances
What constitutes reproduction is a major issue
in learning object repositories, particularly
as it relates to performances. For example, is
streamed audio and multimedia a reproduction or
a performance? Does it make a difference if the
object is cached on an intermediary content server
or on the user's computer? The copyright compliance
procedures are different depending on whether
the use is deemed to be a reproduction or a performance.
One even has to deal with different copyright
collectives. (See section 4.2)
Significant Portion
There will always be instances where, due to constraints
associated with learning outcomes or available
time, an instructor wants to use only a portion
of a learning object and incorporate it into another
learning object.At what point is the portion significant
enough that copyright compliance is required?
The work must be original; that is, it must
constitute an original expression (in other words,
it must not be copied from another work). Compilations
are sometimes protected as original works if their
production required work and shows originality.
Thus, in the case of new media and multimedia,
even digital compilations of existing original
works are protected if the selection and arrangement
of the works result in a product that is considered
original.
Original
Originality is very subjective, especially as
it relates to learning objects.
The learning outcomes of most learning
objects will be widely understood and acknowledged.
The outcomes themselves will rarely be
considered original. The originality, if any, would have to lie in the strategy
used to achieve the learning outcome and/or the
audio-visual components making up the learning
object.
Another issue relates to the size of learning
objects. By definition, they are meant to
be very small in order to achieve a single learning
objective. A small object leaves much less room
for original expression than does a larger work
such as journal article or a textbook.
What is the minimum size for a learning
object to meet the requirement of original expression?
Should the smallest copyright-able item
be a learning object, a lesson, or a course?
If a later object turns out be virtually
identical to an earlier object, can the later
object be deemed original just because the author
was not aware of the earlier object and therefore
did not copy from it?
Who is responsible for determining if a learning
object is original? This issue is similar to the originality
requirements of patents (Canadian
Intellectual Property Office). Is every learning object creator
responsible for searching worldwide learning object
repositories to determine the originality of the
object, or is it assumed original until proven
otherwise?
Compilations
One of the objectives of learning objects is to
allow instructors to combine different objects
in different ways to suit the requirements of
the particular instructor.
This certainly requires work, but does
it show sufficient originality to warrant the
granting of a copyright to the compiler?
The
work must be recorded in a material form, since
it is difficult to prove the existence of a work
that has not been fixed. Thus, audio or visual works
that are broadcast by radio, television, cable television,
or any other means, without first being fixed, are
not protected by copyright. This is important in
the case of new media, especially when the author
of a new work decides to broadcast the work without
fixing it, and some other person takes the initiative
of doing so.
Material Form
Digital learning objects stored on a diskette
or CD would clearly meet the copyright requirement
of being recorded in a material form. It is less clear whether this would
also apply to distributed learning objects stored
on a peer-to-peer network content repository.
When
an original work is created, it is automatically
copyrighted if any of the following conditions applies
at the time of its creation: the author is a Canadian
citizen or a British subject; the author resides
in one of Her Majesty's territories; the author
is a citizen or subject of a country that has signed
the Berne Convention on copyright or the Universal
Copyright Convention; the author is a citizen or
subject or any country to which the Minister extends
copyright benefits by publishing a notice in the
Canada Gazette. The same automatic protection is
obtained if the work was first published in any
of the countries mentioned, even if the author was
not a citizen or subject of Canada or one of the
countries mentioned.
Automatic Copyright
Automatic copyrighting ensures that creators of
learning objects will not have to go through an
onerous or time-consuming registration process
in order to ensure their work is copyrighted.
Publishing
The availability of a learning object in a repository
would most likely be considered as the publishing
of that learning object.
Copyright
applies to any original literary, dramatic, musical
or artistic work. Each of these general categories
covers a very wide range of creative works. As a
rule, copyright is held by the author, the person
who creates the work. If the work is created in
the workplace, however, copyright is held by the
employer unless otherwise stated.
Any Original Literary, Dramatic, Musical or Artistic Work
As described earlier, this definition is sufficiently
broad to encompass virtually all learning objects.
Copyright is Held by the Employer
This may be a significant issue for instructors. Unless stated otherwise in their employment contracts,
it would be the employer institution that would
own the copyright and have control over the economic
and moral rights of the instructor’s learning
objects.
(See below.)
Authors
of works enjoy a number of rights that allow them
to receive compensation for the use of their material.
These "economic rights" generally allow
creators to authorize or prohibit the use of their
works. In most cases, economic rights apply during
the author's lifetime and for 50 years after the
calendar year of the author's death.
Economic Rights
As stated above, depending upon the employment
contract, either the instructor or his employer
may have economic rights over the use and re-use
of their learning objects.
From the instructor's point of view, it
may be more important to have "recognition
rights" from his peers and institution for
purposes such as obtaining tenure.
Moral
rights relate to the integrity of a work. Unlike
economic rights, which allow copyright holders to
authorize the use of their work and to receive compensation,
moral rights protect an author's reputation.
Moral Rights
Moral rights allow the owner to prevent his learning
objects from being used in ways he feels are inappropriate. This may relate to what the owner feels are inappropriate
learning objectives or the association of his
learning object with other objects that he feels
are inappropriate
New
media used in education and training pose certain
challenges to copyright holders, such as loopholes
in the Copyright Act that can be used by libraries,
archives and educational institutions. Copyright
holders recognize that the education market is booming
and want to profit from it. Thus, they do not want
users to be exempt from copyright.
"Loopholes"
The term "loopholes" is misleading since
these clauses are intentionally written into the
act to support the use of basic educational needs
which require the display of a wide range of material. The loopholes referred to here are exceptions that allow
educational and similar institutions to use copyrighted
material for certain purposes without having to
obtain the right to do so from the copyright owner
and without the payment of royalties. This is dealt with further in section
4.2 Exceptions
for Educational Institutions.
4.2
Exceptions for Educational Institutions
The text in italics in this section is from "Exceptions
for Educational Institutions", Canadian
Intellectual Property Office. Following each
quotation is a commentary on how the quotation relates
to learning objects and repositories.
An exception permits the use of a work protected
by copyright without the consent of the copyright
owner and without the payment of royalties. Copyright
laws all over the world aim for a balance between
a) the rights of creators to be paid for and to
control the use of their works; and b) the needs
of users who want access to material protected by
copyright. This balance is created by providing
creators with legal "rights" and then
limiting those rights through "exceptions"
for the benefit of certain users. Educational institutions
are one of those user groups. Subsections 27(3),
29.4, 29.5, 29.6, 29.7 and 30 provide educational
institutions with exceptions defining certain activities
which may be undertaken without infringing copyright.
An "educational institution"
is defined in section 2. To qualify for the exceptions
an educational institution must be non-profit.
Educational Institution
Under the definition of "Educational
Institution", Section 2 of the Copyright
Act also includes any government department or
agency or any non-profit body, that controls or
supervises education.
Specifically, provincial departments of
education and school boards would fall under this
category.
For Profit Institutions
On the other hand, these exceptions do not apply
to for-profit institutions.
With the increasing numbers of institutions
in this category, this may create serious difficulties
for the creation and exchange of learning objects
and the inter-operability of learning object repositories. Because non-profit and for-profit
institutions would be operating under different
areas of the Copyright Act, it may not be possible
to freely exchange learning objects between these
two types of institutions.
Subsection
27(3) provides that an educational institution is
not required to pay any royalties for the public
performance of any musical work "in furtherance
of an educational object". For example, performance
of music in class for the purpose of giving music
instruction falls within this exception.
Subsection 29.4 is an exception to the right of
reproduction. This exception allows copying onto
a blackboard, a flip chart or other similar display
devices in the classroom. Educational institutions
are also permitted to copy materials onto transparencies.
Copying works protected by copyright for tests or
examinations is another permitted use. These exceptions
apply unless the work is "commercially available"
in a form which meets the instructor's needs. "Commercially
available" is defined (in section 2) as meaning
available on the Canadian market within a reasonable
time, for a reasonable price and with reasonable
effort or is available through a licence from a
collective society.
The "fair use" doctrine in
the USA and “fair dealing” in Canada (and some
other nations) in its purest form, lets a film critic
include a clip from a film in her review to illustrate
a point. Since negative critics would never get
permission to do this, the fair use exemption exists
to stop copyright law from being used to stifle
criticism.
This means that if you are doing things like comment
on a copyrighted work, making fun of it, teaching
about it or researching it, you can make some limited
use of the work without permission. The main differences
between Fair Use in the USA and Fair Dealing in
Canada is that Canada places some specific limitations
with respect to recordings of radio and television
broadcasts. In Canada under the fair dealing provision,
recordings of non news show broadcasts may be kept
by an educational institution for up to 30 days
to determine whether or not the recording has educational
value and then, if it is used in a teaching situation,
a royalty must be paid. News related broadcasts
have a royalty holiday for one year.
This contrasts with the US policy which tends to
let educational institutions have a royalty holiday
in perpetuity as long as the material not used for
profit.
Display Devices
The Copyright Act currently severely limits
the media to which the copyrighted material can
be copied. The most high-tech media to which
the Act applies are flip-charts and transparencies! The implied principle here is that
the material can be copied to media that meet the
needs of the instructor. Unfortunately the allowed media are
explicitly specified and must be revised over time
to keep up to date with changing education technology.
The TEACH Act is an example of this and is
described in section 4.4.
Commercially Available
This section states that the instructor cannot reformat
the material or make royalty-free copies if it is
already available in a form that suits the instructor’s
requirements.
For example, if the paintings in an art book
are available from the publisher as a set of slides,
then the instructor would have to purchase the slide
set rather than create his own. This encourages the publisher to provide material in forms
that are of most use to the instructor, and punishes
the publisher (through loss of revenue) if he fails
to do so. For example, the Canadian
Copyright Licensing Agency, offers digital
licences to educational institutions.
4.3 The Digital Millennium Copyright Act (DCMA)
This controversial Act was enacted in the US in
response to recent World Intellectual Property Organization
(WIPO) international treaties.
These treaties required all WIPO members
to extend their copyright legislation to include
electronic and computer-based forms of works and
specifically to disallow the circumvention or removal
of any technological protection measures that copyright
owners may have put in place to protect the misuse
of their works. It is the illegality of circumvention
that is the primary source of controversy. It was generally felt that this restriction was too broad and
prevented what was previously legitimate copying
under the Copyright Act.
For example, the DCMA restricts the ability of users
to circumvent copy-protection features so that:
- users can make backups of their legitimately-purchased
material,
- users can save the material in different formats
and on different media to be used for personal
purposes on a variety of equipment,
- disabled users can convert and modify the material
as required in order to make it usable in a form
that overcomes their disability.
Further details can be found in "Executive
Summary, Digital Millennium Copyright Act, Section
104 Report"
4.4 The TEACH Act
In part as a reaction to the DCMA, the US Senate
passed on October 3 2002 the Technology,
Education and Copyright Harmonization (TEACH)
Act. This Act greatly extends the Exceptions for Education described
in section 4.2. The Act extends "fair use for the furtherance of education"
from handwritten and relatively low-tech classroom-based
copying technologies to computer-based technologies
appropriate for distance learning.
Although the Act extends the definition
of fair use copying for educational purposes to
include current learning technologies, the Act
also imposes strict compliance requirements on
the instructor and the educational institution. Furthermore, the Act's interpretation of distance education
is severely restricted; the interpretation can
not be automatically extended to include learning
object repositories.
In fact, many forms of distance education would
not come within the Act's definition:
The Act requires that distance education take
place in real-time instructor-led sessions.
The presented copyrighted material can not be
stored on the students' computers, nor can it
be referenced on a web server before or after
the session for research and study purposes.
The Act states that primary responsibility for
compliance rests with the educational institution.
This means that a central administration
will have to take on a more active role in the
distribution and use of copyrighted material.
This has both good and bad consequences:
On
the positive side, instead of administration letting
each instructor look after the time and cost of
creating, obtaining, and maintaining learning
object repositories, institutions will have to
create a department and budget for these activities,
for example under the jurisdiction of the institution's
library.
This should help ensure the viability and
sustainability of learning object repositories.
On the negative side, so that administration can
ensure they are in compliance with the Act, they
may decide to establish policies that prohibit
instructors from maintaining their own repositories
of learning objects.
In addition, the instructors' submissions
to the central learning object repository would
all have to be reviewed by the administration
for copyright compliance. These measures may be viewed as contravening
instructors' academic freedom.
The Act also requires the educational institution
to apply whatever technologically feasible controls
are available to ensure that only registered students
have access to the material, and only for the
duration of the classroom session.
Another provision of the Act prohibits instructors
from using without licence any material that has
been specifically designed and formatted for use
in digital education.
This provision has two positive aspects that
will encourage commercial entities to develop
digital learning objects:
Commercial providers of digital learning
objects are assured they will receive royalties
whenever their work is used-no educational exception
is permitted.
Commercial providers of non-digital forms
of educational material will have an enormous
incentive to convert their material to digital
forms suitable for use in distance learning and
learning object repositories: if they don't, then
instructors will be entitled to convert and use
the material themselves without paying licence
fees to the content owner
.Further information can be found in "New
Copyright Law for Distance Education: The Meaning
and Importance of the TEACH Act" by Kenneth
D. Crews, Professor of Law Director, Copyright
Management Center Indiana University School of
Law-Indianapolis at http://www.ala.org/washoff/teach.html.
4.5
Canadian Copyright Reform
The Copyright Policy Branch of the Department of
Canadian Heritage (http://www.canadianheritage.gc.ca/progs/ac-ca/progs/pda-cpb/index_e.cfm) is responsible for Canada's copyright policy
and legislation:
Its task is to develop an up-to-date legislative
framework and to continually improve the balance
of copyright protection in Canada. This involves
taking into account legal and technological developments
which affect copyright protection, whether in Canada
or abroad.
The Copyright Policy Branch initiated a copyright
legislation reform process in June 2001, primarily
to address several digital issues:
Whether a copyright owner should have the
right to determine if, when , and how their works
should be made available on a computer network.
Whether users should be prohibited from circumventing
digital copy-protection features (see section 4.3).
Whether users should be prohibited from modifying
or removing any rights management information that
may be included with the digital work.
The process included the release of several consultation
papers, submissions from interested individuals
and organizations, and public meetings.
On the basis of this information, a report
was submitted to Parliament for review. For further information, refer to the
Industry Canada Copyright Reform Process website
at http://strategis.ic.gc.ca/SSG/rp01100e.html.
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