Author: Greg Walters on behalf of the ALT CoOL SIG
The Scottish Confederation University Research Library (SCURL), Copyright and Legal Matters Group was delighted to take part in the UK’s first Fair Dealing week (coordinated by ALT CoOLSIG), through hosting an online event on the 24th of February, 10am – 11am (GMT). We focused on the challenge of using the copyright exceptions for global teaching, as this relates to Fair Dealing and is relevant, given the sector wide pivot to online learning and teaching. The copyright challenges around the use and interpretation of the exceptions overseas, scope of licenses and assessing risk were addressed by Debbie McDonnell who is the Intellectual Property Manager from the British Council. This was achieved through a presentation delivered by Debbie, followed by a discussion with attendees.
This was as an informal event, and to encourage open discussion in a safe environment, the recording of the event was only used for note taking purposes.
Note, none of the content within this blog entry should be considered legal advice.
Debbie McDonnell Presentation: The challenge of using copyright exceptions for global teaching
Debbie delivered a fantastic presentation which examined the background of the British Council and highlighted the collaborative work they are involved in with arts and culture, education and the English language. The British Council delivers online education directly to students but also through working with governments, universities, and other organisations. Due to the global delivery of education both online and face to face, the British Council is confronted with numerous potential copyright challenges. In response to these, Debbie presented how they apply best practice, by assessing the associated risk when using the copyright exceptions (through the lenses of Fair Dealing and the Berne Convention). And considering whether there may be copyright free alternatives, e.g., images from Unsplash.com or any licences that may enable the materials to be shown in other countries.
Follow on discussion around Fair Dealing and copyright exceptions
The text below captures the key themes of discussion that occurred after Debbie’s presentation, based on questions directed to her from the attendees.
The first point of discussion was “do the territorial limitations of some licences encourage you to rely instead on Fair Dealing?” This led to revisiting a key point made in Debbie’s presentation, where it is advisable to always examine the scope of a licence you’re looking to use, i.e., does it cover the countries you wish to make materials available in for online learning? Fair Dealing was discussed in relation to this, and to be mindful that copyright exceptions vary from country to country.
A second conversation emerged around the assertion that Illustration for Instruction (section 32) only applied for online dissemination through a VLE and cannot apply to teaching content made available on the open web. Which led to the conclusion, that it’s a risk-based issue whether you put something up on the open web using Illustration for Instruction. The quotation exception (section 30) was suggested as an alternative from a risk management perspective, as there are still elements of section 32 that have still to be legally tested – the educational aspect and wording around giving and receiving of instruction. Further adaptability of the quotation exception was demonstrated which could potentially be used to enable materials being made available to people without needing to consider the educational aspect. This is due to the quotation exception having the balance to consider the rights of the copyright owner(s) from a fairness perspective, whilst being used in an online environment. An alternative to exceptions was suggested, which is to contact the rightsholders on a case-by-case basis to ask permission to use their work(s) although this would be time consuming and conflict with the intention that exceptions are available to help educational institutions.
As can be observed in the above conversations, international copyright law is an expansive area, with complex themes, therefore the next discussion focused on where to find resources that can help navigate this area? In response to this query, the following were suggested: International copyright basics, digitising Morgan, and professor Seng’s WIPO report on international educational exceptions. It was also suggested to make use of a country’s community of practice, e.g., ALT CoOLSIG, SCURL, and LIsCopyseek, to help navigate the complexities of its associated copyright law.
The final point of discussion returned to a debate around the copyright challenges of showing an entire film in a secure online environment using the UK copyright exceptions, sections 32/30. Suggested best practice was emphasised again, by looking for a suitable licence (i.e., ERA, Netflix educational screening) before considering making use of the quotation exception in alignment with Fair Dealing factors through the lens of the Berne Convention.
This concluded the follow up discussion.
Key points from discussion:
- Examine the scope of any licence you intend to use when intending to make materials available online
- Remember, copyright exceptions vary from country to country
- When making teaching content (containing copyright protected material) available on the open web, it’s a risk-based issue whether you choose to rely on Illustration for Instruction. Section 30 (quotation) is a viable alternative from a risk management perspective.
- Consider Fair Dealing factors, i.e., only use the amount of work required to fulfil your purpose when making use of section 32 or 30
- Aside from examining what licences are available, and using the copyright exceptions, you could also consider contacting the rights holder to seek written permission to use their work
- Make use of online resources and communities of practice to help navigate the challenges associated with international copyright law
Through Debbie’s excellent presentation and follow-on discussion, we had the opportunity to robustly examine the copyright exceptions in relation to global teaching and discuss the best practice that emerged. It was fascinating to observe the key themes of risk management, assessing the scope of a licence, and considering “fairness” to the creator be applied to the use of the copyright exceptions in our discussion, as these were echoed in Debbie’s presentation. This illustrates the importance of having these types of conversations in communities of practice, as copyright both domestically and internationally are complex areas that require thorough examination. Once again, we would like to thank Debbie McDonnell from the British Council, for providing both an excellent presentation and leading our follow up discussion.