Abstract
Among the several legal issues involved in the production and exploitation of e-learning contents, copyright and intellectual property deserve special attention, not only because of its strategic and economic importance in any e-learning project, but mainly because of the intricacies that may derive from the different domestic laws involved as a result from the ubiquitous nature of the Internet. For a successful and peaceful production and exploitation of e-content, one needs to take into account the copyright laws, any pitfalls they may generate and adopt the best contractual practices to avoid them. This chapter will identify these issues and examine the existing legal framework from an international perspective.
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Notes
- 1.
See Directive 2003/98/EC of the European Parliament and of the Council of November 17, 2003, on the re-use of public sector information.
- 2.
For instance, both the Digital Millennium Copyright Act of 1998 (US) and the Directive 2000/31/CE on e-commerce (EU) list safe harbors for the provision of services of mere conduit, caching and hosting and (at least, the DMCA) of search engines and links. Among the requirements specified for the application of the safe-harbors, the lack of “actual knowledge” or “awareness” about the infringement is paramount. It means that the ISP is not obliged to monitor (control) its users’ web pages and actions (i.e., infringements) but that as soon as the ISP knows about the infringement, it must act expeditiously to remove or to disable access to the illegal information or activity in order to benefit from the exemption. Failure to meet these requirements does not directly assign liability upon the ISP for the infringement committed by its client/user, but will make it ineligible to benefit from the exemption. Safe harbors are only a “filter”; liability will be ultimately established according to the general rules on liability of domestic laws.
- 3.
In fact, failing a harmonized and secure playground for exempted teaching uses, an online university has two options: either face a myriad of possible infringements in different countries (under different applicable laws) or start a “mission impossible” search for worldwide licenses.
- 4.
In this chapter, we will use the term copyright to refer, in general, to the rights granted to authors as well as to the “other” related rights granted – in some jurisdictions – to artists and producers.
- 5.
Some important exceptions to this rule may be found in the USA, which required registration and first publication with © notice until 1989 (despite being one of the founding members, the USA only signed the BC in 1989, that is, more than a hundred years later), and in Spain where registration was required for protection until 1987.
- 6.
See Berne Convention for the Protection of Literary and Artistic Works, of September 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979 [hereinafter, Berne Convention or BC]: http://www.wipo.int/treaties/es/.
- 7.
It should be pointed out that the specific nomenclature and qualification of the exclusive rights granted by copyright may vary according to each domestic law or international instruments. For instance, some jurisdictions prefer to refer to distribution also in digital online contexts (i.e., the USA).
- 8.
However, we usually refer to “distribution” (following the US approach) to refer to online delivery of works since, at the end, a tangible copy is made (i.e., a print out).
- 9.
The distinction between “copyright” and “droit d’auteur” systems was used to explain why the IP protection granted in Anglo-Saxon (common law) systems focused mainly in the exploitation rights (disregarding any “moral” right of the author), for shorter a shorter term of protection, and maintained formalities as a condition of protection; while in European continental systems, the protection was more “favorable” to the author’s personal (non-economic) interests, offered longer terms and did not require any formalities in order to grant protection. Such a distinction has been losing significance in recent times, so we will refer to “copyright” in general.
- 10.
For instance, the USCA sec.106A which grants attribution and integrity rights to the authors of works of visual art. In addition, in common law systems, these “personal” interests tend to be protected beyond the copyright statute, by means of publicity and privacy rights, consumer protection, contracts, defamation, etc.
- 11.
According to art.7 BC, a country member of the Berne Union must protect, within its territory, the works of foreign authors (from other member countries) for a minimum term of 50 years PMA. In addition, a complex system of comparison of terms (between the term of protection according to the law of the country of protection and that of the country of origin of the work) is envisioned in its art.7.8 BC.
- 12.
The harmonized term of protection was set by Directive 93/98/EC of October 29, 1993, later consolidated by Directive 2006/116/EC of December 12, 2006.
- 13.
Not all jurisdictions allow for the author to dispose of his copyright; where copyright is public mandatory law, works enter the public domain only by virtue of the law (by expiration of the term of protection).
- 14.
Usually, a distinction is made between “limitation” to refer to non-voluntary (compulsory) licenses which are remunerated, and “exception” to refer to free uses. We will not make such a distinction here, and will use the term exception or limitation without distinguishing between free or remunerated uses.
- 15.
A similar imperative “work made for hire” provision may be found in sec.11 of the UK Copyright Act: “where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.”
- 16.
That is, whether users can get digital copies covered by library exceptions, whether digital copies may be made for preservation purposes and to e-reserve collections to improve the services they render, whether digital copies may be provided through interlibrary loan, etc. On this subject, see Laura Gasaway, Values Conflict in the Digital Environment: Librarians Versus Copyright Holders, 24 COLUM.-VLA J.L. & ARTS 115 (2000).
- 17.
The same may be found in the Universal Copyright Convention signed in Geneva in 1961: “Teaching, scholarship or research” purposes are envisioned as a limitation to the translation licensing scheme provided for in Art.Vter.
- 18.
See WIPO Copyright Treaty of December 20, 1996 [hereinafter, WCT]. A parallel clause can be found in the Preamble of the WIPO Performances and Phonograms Treaty of December 20, 1996 [hereinafter, WPPT].
- 19.
See Directive 2001/29/EC of the European Parliament and of the Council of May 22, 2001, on the harmonization of certain aspects of copyright and related rights in the information society, 2001 O.J. L-167/10 (22.06.2001) [hereinafter, EUCD].
- 20.
See Universal Declaration of Human Rights, General Assembly of the United Nations, Resolution 217 A (III) of 10 December 1948 [hereinafter, UNUDHR], http://www.un.org/Overview/rights.html, accessed November 13, 2006.
- 21.
See Art.27.2 UNUDHR: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” However, we should never forget that while every human being has a fundamental right to education and to participate in cultural life, only authors – those who create – enjoy copyright. This should not be read so as to diminish the importance of the copyright as a fundamental human right, but it should always be kept in mind in order to find the right balance between these fundamental rights in our copyright laws.
- 22.
See Art.26.1 UNUDHR: “Everyone has the right to education.”
- 23.
See Art.27.1 UNUDHR: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”
- 24.
The Stockholm Conference proceedings show that this major amendment went through completely unnoticed.
- 25.
Art.5.3 EUCD does not cover the right of transformation, since this right was not harmonized by this Directive. However, Member States may choose to implement it (together with the other exploitation rights) under each of the listed statutory exceptions. As we will see, some countries have extended the teaching exception to the transformation right, others have not.
- 26.
This is the case of Belgium, France, Germany, Italy, Luxembourg, Portugal, Poland, the Netherlands, Hungary, as well as Switzerland (despite not being a E.U. Member).
- 27.
Either by expressly mentioning it (i.e., Poland and the Netherlands) or by simply referring to “use” (i.e., Switzerland).
- 28.
For instance, Italy and Portugal.
- 29.
For instance, Germany and Belgium.
- 30.
This is the case of France and Germany.
- 31.
See Italy,the Netherlands and Luxembourg.
- 32.
Therefore, in disregard of the specific explanation in Recital 42 EUCD.
- 33.
See Germany.
- 34.
See Belgium.
- 35.
See Portugal.
- 36.
See Belgium, France, Germany, Switzerland and the Netherlands; the specific remuneration schemes are left for Government regulation.
- 37.
See Hungary.
- 38.
See Luxembourg, Portugal and Italy.
- 39.
This is the case of Austria and the UK.
- 40.
This is the case of Ireland, Greece and Spain.
- 41.
For instance, in Denmark the extended collective license managed by COPY-DAN already covers scanning, printing, storage, e-mail transmission, upload in a password protected intranet and download, in all kind of educational institutions (schools – at all levels, universities, etc.), in exchange of a fixed amount per student, per year. However, a vestige from the reprographic licenses limits the copying to a maximum of 20% or 30 pages of a work, whichever is less.
- 42.
In the USA, the TEACH Act of November 2, 2002 which amended the Copyright Act of 1976 (see http://www.copyright.gov/title17/) was adopted to transport the instructional exceptions already existing under sec.110 (that covered both face-to-face teaching uses and distance- teaching uses by means of radio and TV broadcasting) into a digital environment. If there is one criticism to be made to the TEACH Act is its narrow scope, which may be somehow excused by its non-remunerated character, but which makes it clearly unsatisfactory to cover the needs of online teaching. However, when examining the US scenario for teaching uses, two other facts remain fundamental: the general fair use defense of sec.107 USCA and a voluntary – but widely accepted – licensing remunerated systems that allow for the compilation of material for teaching purposes, also in digital format [see, for instance, the Copyright Clearance Center, http://www.copyright.com/ among others].
- 43.
In Australia, the Copyright Amendment (Digital Agenda) Act 2000, No.110 (see http://www.austlii.edu.au/au/legis/cth/consol_act/caaa2000294/) provides for a statutory collective licensing regime for the digital reproduction and communication to the public of all kind of works (from digital sources, only) for educational uses (in broad terms, from use as part of the instruction to the making of e-packs and e-reserves), by all kind of educational institutions (primary or secondary institutions, universities, and assimilated institutions). It is all managed by only one collective society; the remuneration fee is agreed by the parties (or, by default, set by the Copyright Tribunal) according to several parameters, such as the nature of the institution, the kind of work, the students, and so on. This statutory collective license does not preclude the possibility that authors and institutions negotiate individual licenses.
- 44.
Under a broader Copyright Act reform [Bill C-61, An Act to Amend the Copyright Act see http://www.parl.gc.ca/], Canada is considering the introduction of a limitation for teaching uses similar to the U.S. TEACH Act.
- 45.
Fair compensation should take into account the nature of the work (works primarily intended for teaching may be excluded from the exemption, so as not to unnecessarily prejudice the legitimate interests of the author), the specific teaching use (not all teaching uses should be compensated and compensated equally), the nature of the educational establishment and/or program, and the existence of technological protection measures implemented.
- 46.
On September 28, 2007, WIPO member states adopted a Development Agenda, consisting of a series of recommendations to enhance the development dimension of WIPO’s activities. The recommendations include a set of 45 agreed proposals covering six clusters of activities including Technical Assistance and Capacity Building; Norm-setting, Flexibilities, Public Policy and Public Knowledge; Technology Transfer, Information and Communication Technology (ICT) and Access to Knowledge; Assessments, Evaluation and Impact Studies; Institutional Matters including Mandate and Governance. See the Draft Report of July 17, 2006, on the existing Proposals concerning the WIPO Development Agenda at http://www.wipo.int/edocs/mdocs/mdocs/en/pcda_2/pcda_2_4_prov.pdf. Before that, see also the “Treaty on Access to Knowledge” proposed by the Consumer Project on Technology (see Draft of May 9, 2005 at http://www.cptech.org/a2k/consolidatedtext-may9.pdf).
- 47.
See Copyright and Access to Knowledge – Policy Recommendations on Flexibilities in Copyright Laws, by Consumers International at http://www.ciroap.org/A2K.
- 48.
APPENDIX “SPECIAL PROVISIONS REGARDING DEVELOPING COUNTRIES” to the Berne Convention, http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html.
- 49.
To make a long story short: the academic production (both research and teaching results) is “appropriated” by publishers (and database producers) and universities end up subscribing (and, usually, paying high fees) to have access to their own production; the need for alternative digital repositories is obvious.
- 50.
See C()SL at http://cosl.usu.edu.
- 51.
The original “Open Content” license is available at http://opencontent.org/opl.shtml. A new version of the license is currently under consideration: http://opencontent.org/blog/archives/355.
- 52.
Open Courseware (OCW) is an educational Project of “open” teaching materials developed by the MIT, and sponsored by the William and Flora Hewlett Foundation. See http://ocw.mit.edu/index.html.
- 53.
The expression Open Educational Resources (OER) was used for the first time in 2002, within a UNESCO forum to evaluate the impact of the MIT OCW in developing countries. OER stands for all the educational material or resource which is offered to the general public, for free, subject to an “open license” which allows its use, transformation and reuse. See Fitzgerald, B. (2007). Open Content Licensing (OCL) for Open Educational Resources, available at http://www.oecd.org/edu/oer.
- 54.
See Liang, L. (2004), Guide to open content licenses: http://media.opencultures.net/open_content_guide/.
- 55.
This changes consisted, basically, in dropping the formality of first publication with © notice to obtain copyright protection (which ultimately permitted authors to decide whether their works would be in the public domain or protected) in favor of automatic protection upon creation; the introduction of the moral rights of integrity and attribution for the works of visual art (sec.106A); and the 20 years extension of the term of protection effected by the Sony Bono Term Extension Act (Public Law 105–298) of 1998 to “catch up” with the E.U. 70 years post mortem auctoris term. This Act was challenged for unconstitutionality (alleged to infringe Art.I, Sec.8 U.S. Constitution of 1787), but the Supreme Court confirmed its validity. See Eldred v. Ashcroft, 537 U.S. 186 (2003), 239 F.3d 372, affirmed: http://supct.law.cornell.edu/supct/html/01–618.ZS.html.
- 56.
See Lessig, L. Cultivating the Public Domain – Creative Commons White Paper: http://wiki.creativecommons.org/Cultivating_the_Public_Domain.
- 57.
Each license consists of three different layers of reading: the Commons Deed (for straight comprehensible reading – this is where the characteristic CC icons are visible); the Legal Code (for legal purposes); and the Digital Code (for computers reading).
- 58.
Of course, (nd) and (sa) are incompatible.
- 59.
Nevertheless, the distinction between what is an unprotected idea, what is an original expression, and what is a derivative work (and what, if not authorized, is an infringement) is proving to be one of the most complex legal issues in copyright.
- 60.
This is the case of the USA (where CC licenses were born): sec.106A USCA grants moral rights of attribution and integrity to authors of works of visual art only.
- 61.
Of course, by excluding the making of derivative works from the license, the chances of an infringement of the integrity right may be reduced (and if so, it would amount to a triple infringement: of the moral right of integrity and of the transformation right, in addition to a infringement of the contract/license).
- 62.
Version 3 of the CC license has already addressed and solved this issue by distinguishing between statutory non-waiveable remunerations (which remain unaffected by the license) and those derived from voluntary (collectively or individually) licenses, which are expressly waived under the license.
- 63.
Once the work enters the public domain, the license becomes useless and ineffective.
- 64.
Over half of the CC licenses granted worldwide include the copyleft clause: (by – sa) o (by – nc – sa).
- 65.
In fact, they could probably do the same without the license, by virtue of the exceptions and limitations embedded in the copyright law.
- 66.
We mentioned above that in most EU countries the CC licenses will only cover the means of exploitation known at the time it was granted, while in other countries, such as the USA, a license may include means of exploitation unknown at the time of the license.
- 67.
See Elkin-Koren, N. (2005). “What contracts cannot do: The Limits of Private Ordering in Facilitating a Creative Commons”, 74 Fordham Law Review 375.
- 68.
Vid. Art.5(2) BC: lex loci protectionis.
- 69.
We should not forget that the distinction between face-to-face and online teaching will soon be obsolete, as digital formats and networked environments spread also in the teaching realm, and that the public interest that justifies copyright exceptions for teaching purposes is the same regardless of the means used to conduct that teaching.
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Xalabarder, R. (2011). Copyright Issues in E-Learning. In: Ferrer, N., Alfonso, J. (eds) Content Management for E-Learning. Springer, New York, NY. https://doi.org/10.1007/978-1-4419-6959-0_6
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