By Carys Craig
The World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights met last November against the backdrop of a global health crisis that has fundamentally changed the way we teach and learn. Now copyright law must catch up.
When the COVID-19 pandemic swept across the world in early 2020, most educational institutions from Dublin to Delhi were forced to close their classroom doors and take their teaching online. Textbooks were abandoned in student lockers and library books left untouched on shelves. Teachers had to pivot to remote delivery methods to ensure that students could successfully complete the ill-fated semester. But amidst the rapid move to Zoom Rooms, Course Moodles, home-recorded lectures, and posted PDFs, copyright restrictions reared their heads, casting into doubt the legality of the online learning practices that had suddenly become nothing short of necessary.
In a forthcoming article, Bob Tarantino and I explore how the pandemic lockdowns stimulated unprecedented creativity, cultural exchange, and learning online. We tell stories that also reveal, however, the very real obstacles presented by copyright law, with its complex rules, liability threats, and chilling effects.
The problem begins with copyright’s surprising reach. Today’s copyright laws protect virtually everything written, drawn, sung, performed, or recorded, with protection lasting from fifty to well over a hundred years. They protect not just against wholesale copying, but also the copying of any substantial part of a work — with considerable ambiguity as to what counts as “substantial.” While making copies was once an onerous endeavour, digital technologies mean that almost every online activity involves multiple digital reproductions. Copyright laws also protect against unauthorized public performance, which includes online communications.
Many educators understandably experience copyright anxiety as they struggle to plan and deliver lessons from their homes. My colleagues fretted about what images they could show in their Zoom lectures, while the library scrambled to help students access required readings. According to a recent study at a Canadian university library, approximately 85% of existing course textbooks are simply unavailable to libraries in any format other than print. Nor is the problem limited to higher education. My own kids, attempting “home school,” were unable to access their schoolbooks, while my nine-year-old waited three months for his elementary teacher to read a single story to his Grade Four class.
There were, initially, some goodwill gestures by commercial publishers and database providers to make limited resources more available. Some copyright collectives (which administer copyrights for owners) offered a temporary increase in the percentage amount of permitted copying. One Canadian collective, Access Copyright, joined with publishers to launch a “Read Aloud” program for a limited catalogue of books, temporarily waiving license fees for educators’ online story times — but on the condition that the educators give written notice providing a full accounting of what and how much was being read by and to whom, and subject to the condition that recordings were later destroyed.
These measures were too limited, unnecessarily short-lived (most have now expired) and, in some cases, wholly redundant (reading aloud to students is a non-infringing activity in Canada for which no license or waiver was needed). Such gestures served to underscore the existing problems with the commercial publishing model for educational resources and the overly restrictive and opaque collective licensing schemes to which students and educators are widely subjected.
Though copyright law is the root of the problem, it is also the source of potential solutions. As the Supreme Court of Canada has stated, copyright is supposed to achieve “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” Indeed, many of the activities about which my fellow educators worried are already protected within the scope of users’ rights. Canada’s Copyright Act contains exceptions for reading in public, for education and training (including for lessons communicated online), and a fair dealing defence for the purposes of education or private study. These provisions are to be interpreted with a view to the copyright balance, which “should be preserved in the digital environment.” If reading aloud to a class or showing an illustrative image on a PowerPoint slide was lawful in a classroom, it should be lawful in the online classroom.
The problem is that the specific educational exceptions are narrowly drawn and difficult to understand and satisfy, while the broader fair dealing defence requires a context-specific case-by-case assessment, making educators and their institutions reluctant to rely upon it. The result is a permission-first or ‘clear-for-fear’ culture that undermines user rights and unduly restricts the educational activities of teachers and students.
Internationally, the problem is even more pronounced. Many jurisdictions do not have updated copyright legislation that contemplates remote online teaching. Many jurisdictions lack general fair dealing or fair use provisions that extend to copying for educational purposes. Many educational institutions labour under technology-specific legislative or collective licensing schemes that contemplate photocopies and facsimiles rather than digital copies or online communications. And even where the law permits such uses, it is common for private licences and legally protected digital locks to prevent them.
In these times of library lockdowns and learning in isolation, the current situation is untenable. Access to education and knowledge is a matter of right and essential to advancing equality. When it comes to continuing the vital practice of educating and learning in the age of COVID-19, copyright law should not unduly impede what technology makes possible.
There are two immediate lessons here. First, we must rethink traditional publishing models that make educators and students unable or afraid to access and share teaching materials. Our current situation only underscores the urgent need to shift from commercial and proprietary publishing to Open Educational Resources and Open Access models for scholarly and educational texts. From instructors and institutions to granting agencies and governments, facilitating this shift should be a strategic priority.
Second, we need to actively safeguard the space for fair educational use of copyright-protected materials, both in law and in practice. The international copyright regime permits exceptions for fair uses, including for illustration in teaching, which (it is agreed) can be carried forward and appropriately extended into the digital environment. What we need now — and what I would hope to see emerging from WIPO’s Standing Committee on Copyright and Related Rights — is an international commitment to ensuring that educators and students around the world can benefit from copyright and its limits as they rise to meet the challenges presented by this global health crisis. We need a clear statement of principles that affirms the importance of access to knowledge and education as a matter of right — now and for whatever “new normal” emerges.
Carys Craig is an Associate professor at Osgoode Hall Law School, York University and Academic Director of Osgoode’s Professional LL.M. in Intellectual Property Law.
This editorial was first published November 17, 2020 in the Worlds of Education (www.worldsofeducation.org).