Copyright and the Web  

COL 's virtual conference on Copyright and the web was conducted during February 2003. The three-week, e-mail-based conference was open to all at no cost. Over 500 people participated, posting about 600 messages.

Dates: 10 - 28 February 2003
Hosted by: Commonwealth of Learning
Moderators: Mr. Robert A. Schad, Special Advisor to VP Research and International for Centre for Sustainable Institute (and Senior Policy Strategist in Information Services), University of Regina, Canada and Ms. Wanda Noel, Barrister and Solicitor, Ottawa, Canada.

Introduction

The Virtual Conference on Copyright was held from February 10 to 28, 2003. The 550 participants posted approximately 600 messages during the Conference.

The Conference opened with a posting from the Moderators outlining a proposal that would amend copyright laws to permit students and teachers to use "freely available" material on the Internet without infringing copyright. The Moderators asked for comment and discussion on three themes:

1. Defining an appropriate public policy
2. Revision of the copyright law
3. Defining liability for Internet use

Although participants addressed the proposal and the three themes in their postings, other, broader issues, surrounding copyright and its impact on education were also raised.

For example, there was a lively discussion regarding the effects of decisions about copyright laws in one country on other countries. Another example is specific "legal" issues such as: what is copyright; what can be owned; what is the purpose of copyright; and who is responsible for policing the copyright law on the Internet. There was debate regarding whether the Internet is different from other marketplaces. Considerable debate also focussed on whether there should be special provisions in copyright laws permitting education use of freely available material on the Internet without payment or permission. Participants also expressed views on how to continue to discuss these issues and advocate changes to copyright laws that would permit the educational use of the Internet without infringing copyright.

The final postings moved the discussion to the larger philosophical issue of "What kind of society do we want to live in?" Not everyone agreed on the kind of society they wanted to live in. Some advocated strong copyright protection, while others saw special provisions for education as necessary in the interest of society as a whole. Participants asked each other and themselves how copyright effects education in their own country and how their copyright law affects those in other countries.

1. Defining an appropriate public policy 

 

The first theme asked participants to identify the public policy issues regarding the use of the Internet for education. Following a general discussion by participants, the moderators refocussed the discussion on the following questions:

• What is the perspective of "southern" countries on the role of copyright and its effect on education in "southern" countries?
• How will decisions regarding digital copyright made in "northern and western" countries affect "southern" countries and economies?
• Should a policy objective in copyright reform in "northern and western" countries be to support education systems in "southern" countries?

The views of participants can be summarized as follows:

• The cost of digital licenses for educational material is prohibitive for developing countries. Copyright makes educational material unavailable to the developing world and thus continues the digital divide.
• Participants from "western and northern" countries noted the difficulty of obtaining clearances for digital materials. The difficulty was seen as being even more extreme in the "south".
• Open source software should be available to developing countries and to the education sector everywhere. A need was described to differentiate between the "for profit" world and the "not for profit" world.
• The "north" needs to consider how it will react as more and more content is developed and made available from countries that now have limited access to the digital world. New approaches to copyright need to be developed for the digital environment. Continuing to rely on copyright laws rooted in print technologies is no longer acceptable.
• Some in the developing world expressed the view that many of the benefits enjoyed by the industrial world have come at the violation of the intellectual property of the less developed world.
• Some called for a special dispensation from copyright laws for developing countries, while others expressed the belief that special dispensations were not appropriate.
• Traditional knowledge developed, held and shared by the developing world has been protected by intellectual property laws and marketed without the permission of those who held that knowledge in trust.  
• The decisions made in the industrialized countries regarding copyright will have a direct effect on developing countries.
• Access to digital materials, materials online and in other formats is essential for developing countries as they increasingly use distance learning to reach their populations.
• Some participants talked about ignoring copyright in developing countries. Others indicated that it is not that simple. Given the interdependency on international agreements, and the need for financial support, such an approach might not be practical. Ignoring copyright entirely might have negative implications for a country's own economic development.
• One participant referred to the current copyright situation as one in which most of the power and wealth reside in the hands of a few which makes it difficult for the others to contribute.
• One option put forward for setting the price for copyrighted materials and software was a system, which charged a fee using GNP to establish price on a country-by-country basis.

2. Revision of the copyright law

 

The Moderators asked participants to identify legislative options for ensuring that the education sector has access to freely available materials on the Internet. More specifically, participants were asked whether the proposal outlined in the introductory posting by the Moderators ensured that students and teachers can make full use of the Internet. The Moderators' introductory posting outlined an amendment to copyright legislation to permit educational use of "freely available" material on the Internet without payment or the obtaining permission from the copyright owner. "Freely available" was defined as material on the Internet without technological protection, such as a password or other encryption. 

 

The views expressed on the proposal varied. They can be separated into 6 categories:

• Freely available materials from traditional publishers or, more specifically, commercial materials should not be used by educators. This was a call for the education sector to use open source software and begin producing digital materials themselves and making them freely available to the education sector. This view agreed with the Moderators' proposal that freely available materials should be available for educational use as long as the owner of the material does not restrict access through some technological measure such as a password or encryption. This viewpoint called for a copyright law stating that material on the Internet can be used by teachers and students unless the copyright owner takes steps to protect the material such as using a password or encryption. Some participants saw this as extending the exceptions currently found in the print world to the new digital world.  
• Another viewpoint was that the Moderators' proposal did not go far enough. The difficulty of obtaining clearance for materials, restrictions on how material can be used in education, and the notion that simple encryption is not a sufficient barrier to stop educational use of the material, were noted.
• Another viewpoint was that the Moderators' position was reasonable since it ensured adequate access to materials by educators and students.
• Another viewpoint was that the only changes needed are amendments to strengthen fair dealing in copyright law.
• Still another viewpoint was that changes to copyright laws were not needed. There should be no difference between the print medium and digital mediums.  
• Another viewpoint took the position that the education sector should obtain a license to use the Internet and through technical monitoring copyright owners or their representatives would determine what the fee would be for use of materials found on the Internet. Some would be zero rated and others would have a fee for use. 

3. Defining liability for Internet use

 

The Moderators asked participants for their views on the liabilities of educational institutions that maintain networks. The range of views can be summarized as follows:

• Liability should be avoided, as it is impossible to police on the Internet without severely restricting the Internet itself.
• There should be liability for the materials the Institution itself posts.
• Educational institutions should not be liable for materials posted by those who use their networks.
• Educational institutions should be treated differently than other Internet service providers.
• There are similarities to the telephone system. The telephone company is not responsible for what is transmitted across its lines. However, knowledge of illegal activity brings with it the responsibility to report the activity.
• Only appropriate legal authorities should be able to search a network. There are important issues of privacy that cannot be ignored.
• Institutions should have clear policies for the users of their networks, but the users themselves should be liable for the material they post on the network.
• Copyright is basically unenforceable so why should educational institutions have to bear the cost for something they cannot control. 
• A blanket license would eliminate the problem of liability.

Other topics discussed by participants

Participants also raised a number of other issues. Although not directly related to the three main themes of the Virtual Conference, these issues nevertheless provided additional insight into the issues being debated and discussed by participants. These issues include:

• What is fair dealing and how is it applied?
• Does copyright ensure reliability of content?
• Issues surrounding a levy on blank recording materials like tapes and CDs.
• How is copyright inherited or purchased?
• Distance Education and how to insure its quality.
• How to obtain copyright for use in course materials.
• How to maintain open access to materials created by educators.
• Is the classroom a private or public place?
• The appropriate legal relationship between copyright and contract law.
• Linking and deep linking.
• Ownership of materials created in the workplace.
• Issues surrounding the process of obtaining copyright clearances.
• Library use and access.
• Concerns regarding the extension of the life of a copyright.

Future Action

During the last days of the Conference, participants were asked the following questions:

• What should the follow up activities to this Virtual Conference be?
• How can you, in your jurisdiction, move this agenda forward?
• What suggestions would you give to the Commonwealth of Learning to promote copyright changes that permit educational use of freely available material on the Internet? 

The following were some of the responses:

• Future Virtual Conferences on this topic should be more like seminars, with a more narrow focus, be for a shorter time and provide formal recognition of participation. 
• The Moderators should provide a document that includes all comments by participants and provide participants with the opportunity to review the document before it is published.
• A follow up conference in which there is equal participation by both developed and developing countries should be held. Patience and a holistic outlook are required.
• A panel should be set up to discuss and set an action plan.
• COL should establish a relationship with rights holders on behalf of education sector generally.
•  Awareness of copyright issues should be raised locally and internationally.
• Another copyright conference should be held using video and video streaming. There should be a focus on specific topics for each section.
• An online newsletter would permit ongoing dialogue.
• Proposals should be developed and taken to the United Nations to achieve world wide solutions.

Conclusions

Participants in the Virtual Conference discussed whether copyright is a barrier to educational use of freely available materials on the Internet. Most participants saw this as a critical issue for the education sector world wide. The expression of interest in the topic was immense and demonstrates that copyright in the global environment is important for us all. The following conclusions can be drawn from the postings of participants.

• It is only through the advocacy of many jurisdictions that copyright laws that are fair for all, including developing countries, can be arrived at.
• The effects of copyright legislation in developed countries on developing countries deserves further reflection and discussion.
• It is imperative in the global world of learning that countries support each other.
• Education is a cornerstone of democracy and economic development.
• If the industrial world is serious in its support of developing nations, then they must consider how their copyright laws effect those nations.
• Educators should consider moving to open source software and materials.
• Extreme positions by copyright holders regarding the education sector may have the effect of removing education from the marketplace entirely.
• Amending copyright laws to provide for the use of freely available materials on the Internet by students and teachers is a position which can coexist with strong support for protection of the works of creators

The Virtual Conference has clarified some issues, raised others, and provided a wealth of commentary and information. More questions have been asked than answered. The closing comments of several participants posed a series of questions that can be used to focus future work on educational use of copyright material on the Internet. What kind of society do we want to live in? How do participants, and their governments, see the society they live in? What value do they place on education and sharing of information and resources to support education around the world? Should they permit copyright to continue to act as a barrier to access? 

A final thank you to the Commonwealth of Learning for hosting the conference and providing the forum for the debate.

-- Bob Schad/Wanda Noel

(excerpted from COL Connections, December 2002)

COL opens consultations on educational use of the web and issues of copyright - virtual conference begins in February.

Many Commonwealth countries have similar copyright legislation and practices - and also have similar debates about what should and shouldn't be in this often-confusing arena. The increasing use of the Internet and the World Wide Web has added a new and very large international dimension. The following article, prepared by Mr. Robert A. Schad, Special Advisor to VP Research and International for Centre for Sustainable Institute (and Senior Policy Strategist in Information Services), University of Regina, and Ms. Wanda Noel, Barrister and Solicitor, Ottawa, describe a current lobby in Canada.

The article is intended to provide some background and spark further Commonwealth-wide discussions through an e-mail-based virtual conference that will be hosted by COL beginning in February 2003. The three-week conference is open to all and there is no cost. Mr. Schad and Ms. Noel will be the moderators.

Mr. Schad and Ms. Noel presented a well-received session on this topic in Durban at the Pan-Commonwealth Forum on Open Learning. (PCF22)

A Canadian perspective
Removing the Copyright Barrier: Educational Use of the Internet

• Copyright laws need to be amended to legalise educational use of publicly available Internet materials.
• A professor who helps his students by posting news clippings on his class web site as a resource for his class is also in violation of copyright law.
• Legal clarity: An example is teaching students about the importance of acknowledging the source of material by crediting the author.

 

The Problem

Copyright law is a barrier to the educational use of the Internet and the World Wide Web. Amending the Canadian Copyright Act to remove this barrier is essential if education systems are to produce the highly skilled, computer literate population required in the global information economy.

 

Current Canadian copyright law often makes the spontaneous use of the Internet by teachers and students illegal. For example, using the information that is found on web sites without obtaining prior written permission is often an infringement of copyright. There are many types of activities that are sound educational practices but are made illegal by current copyright law. A Grade 3 student who copies a picture from a web site, adds it to a report, e-mails the report to her teacher and makes a print copy to show her family has broken copyright law. A university student in a media awareness class that cuts and pastes from different web sites to comment on the composition of the sites is also in violation. A professor who helps his students by posting news clippings on his class web site as a resource for his class is also in violation of copyright law. 

 

The education community in Canada has been actively examining the issues of copyright in a digital environment and its implications for education for a number of years.

 

 

The Canadian solution

The education community in Canada is urging its federal government to consider an amendment to the Copyright Act to allow students and educators to make effective and legal use of publicly available Internet materials as part of a programme of learning.

 

In educational institutions, learning is fostered and sustained by the use of the Internet. However, existing copyright laws impede technology-enhanced learning. Current copyright laws are infringed when students and educators engage in routine activities such as forwarding e-mails and copying information for study purposes. Copyright laws must therefore be changed to legalise and promote technology-enhanced learning, allowing students and educators to employ Internet-based resources without breaking copyright law.

 

 

Clarity

By providing legal clarity about the educational use of the Internet, the proposed amendment will reduce the risk of litigation. Legal clarity will also ensure that students and teachers are in a better position to promote best information practices and ethical standards respecting copyright. An example is teaching students about the importance of acknowledging the source of material by crediting the author.

 

 

Balance

To provide a viable legislative framework for both creators and users of Internet resources, the Canadian government must ensure a balance between creators' rights and public access to knowledge and information. The proposed amendment upholds the concept of balance, and has conditions that are fair to both the users and creators of copyright material. It would apply uniquely to publicly available sources, and does not change or interfere with the legitimate right of creators who wish to be compensated for the use of their material on the Internet. As well, students and educators benefiting from the amendment would still be required to acknowledge the copyright source and could use Internet material only for educational purposes. Options for providing balanced legislative change are varied and include exceptions, fair dealing, or fair use as it is called in the United States, and collective licensing.

 

 

Free versus fee

The Internet is substantially different from commercial vehicles like publishing, radio and television. Where the latter are concerned, educational institutions reimburse creators and producers for the use of their copyright material. It is clear, however, that the Internet is only partially a vehicle for publishing and other commercial ventures. As a driving force in the information age, the Internet is an environment that sustains national and global communication.

 

Many would argue that the global communications function of the Internet is its most important function. This environment is comprised of the free and willing exchange of ideas, beliefs and knowledge. In fact, the Internet has exerted such influence that non-democratic regimes have, and are attempting to, restrict the ability of its citizens to access and use it. This is a much different environment than that which arose with the introduction of earlier technologies such as the photocopier.

 

Many web sites are intended to inform and educate the public for free. The World Wide Web has as many similarities to the town square and speakers corner as it does to a bookstore or publishing house. As such, the Internet promotes many uses and performances that are not intended for profit, nor intended to be subject to commercial transaction. Public policy decisions pertaining to copyright must correspond to this new complex environment.

 

 

What needs to be done?

These considerations all speak to the need for a balanced and innovative approach in the reform of the Canadian copyright law. The proposed amendment ensures that students and educators who are learning and improving skills with publicly available materials on the Internet are able to do so without infringing copyright. A nation's position in the global information age is dependent on its continued ability to access and learn from Internet-based materials. Copyright laws need to be amended to legalise educational use of publicly available Internet materials.

 

The information age is here; the decisions made in one country can influence decisions in other countries. This is especially true when dealing with issues in the digital world. What happens to copyright law in one country will be noticed in other countries that are struggling with similar issues. If the education community makes its voice heard regarding the need to remove copyright as a barrier to educational use of the Internet, then there is a greater chance of achieving the needed copyright amendments.

"United we stand, divided we fall" has new resonance in the digital age.

 

--B.Schad/W. Noel