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Copyright law in Education

Dr Louise CrowleyFaculty of LawUniversity College Cork

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Overview• What is copyright?• When is a work deemed to be original?• Rights of copyright owner• Fair Dealing Exceptions

– Education– Criticism or Review– Incidental Inclusion

• Reliance upon licenses• UCC/ICLA – More permissive exceptions• Rights of Employers – Institutional IPR

Policy• Moral rights

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What work is protected by ©?• Copyright and Related

Rights Act 2000• Section 17

– Original literary, dramatic, musical or artistic works,

– Sound recordings, films, broadcasts or cable programmes,

– The typographical arrangement of published editions,

– Original databases

Literary work

• Covers any work that is expressed in print or in writing

• Does not mandate a high standard of style or quality

• Necessitates some level of skill or effort – “unintelligible scribblings” were deemed not to constitute a literary work as they lacked any effort or information (Fournet v Pearson)

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What is Copyright?

• Copyright is a property right• Automatically subsists in an

original work• Permits the copyright owner to

use and/or authorise others to use

• Automatically prevents others from using the protected work

• Subsists automatically – no need to declare or register

• Life of author plus 70 yrs

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Original expression

• Requires evidence of the author’s skill and labour

• The originality which is required relates to the expression of the thought…the work must not be copied from another work; it should originate from the author.

• Detail of expression impacts upon assessment of originality

• Relatively low threshold• No protection of ideas or principles• Protection lies in the expression of the idea

University of London Press v University Tutorial Press Ltd [1916]• “The word original does not in this

connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of ‘literary work’ with the expression of thought in print or writing....the Act does not require that the expression must be in an original or novel form but that the work must not be copied from another work – that it should originate from the author.”

(Peterson J)

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Low threshold

• Various authorities – matter of the interpretation of work in question

• “Work must show no literary or other skill or judgment...but must originate with the author” (Australia)

• Often arises in relation to compilations – where the work is not a copy of an existing compilation and required skill and discretion

• Is a derivative work but often still attracts copyright protection

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Positive rights of copyright owner

• Exclusive right to use or to authorise others to use

• Copy the work• Make work available to public• Distribute the work• Make an adaptation of the work

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Prohibited Acts

• Persons other than the copyright owner are prohibited from the following acts:– Reproducing the work– Publishing the work– Performing the work in public– Broadcasting the work– Making an adaptation of the

work

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Exceptions to © protection• Statutory provisions

• Fair dealing• Research or private study• Criticism or Review• Incidental inclusion

• Education• Agreed Licences

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Fair Dealing

• Governed by statute and common law

• Chapter 6 2000 Act - sections 49-52 • Express parameters on the concept

– Research and/or private study– Criticism or review– Incidental inclusion

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Research or Private Study• Relates to a literary, dramatic,

musical or artistic work, sound recording, film, broadcast, cable programme, or non-electronic original database

• Work must already have been lawfully made available to the public

• Use must be for a purpose and to an extent which will not unreasonably prejudice the interests of © owner

Research or Private Study – copying that is not exempt• Where the person copying knows or

has reason to believe that the copying will result in copies of substantially the same material being provided to more than one person at approximately the same time and for substantially the same purpose

• Converting a computer program expressed in a low level computer language into a version expressed in a higher level computer language, or

• Copying a computer program in an incidental manner in the course of converting that program

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Criticism or Review

• Must be accompanied by a sufficient acknowledgement

• Includes fair dealing with a work (other than a photograph) for the purpose of reporting current events, where accompanied by a sufficient acknowledgement

• “Sufficient acknowledgment” requires an acknowledgement of the title, or other description of the work and the identification the author

Incidental Inclusion• Copyright in a work is not infringed by

its inclusion in an incidental manner in another work

• Copies of such work can be lawfully made available to the public

• Not incidental where the inclusion unreasonably prejudices the rights of the copyright owner

• Permits the use of quotations or extracts where the first work has been lawfully made available to the public and where such use does not prejudice the rights of the owner and the owner is sufficiently acknowledged

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Education exception

• Sections 53-58 of 2000 Act• Authorises the use of work that is

otherwise copyright protected• Exhaustive list of permitted acts,

subject to multiple conditions and pre-requisites.

Education exception• Starting point is permissive• Copyright in a literary, dramatic,

musical or artistic work shall not be infringed by its being copied in the course of instruction or preparation for instruction...but mandates that....

• Copying is done by or on behalf of the person giving or receiving instruction

• Copying is not by reprographic means• The copying is accompanied by a

sufficient acknowledgement

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Education exception – non literary• Starting point is also permissive• Copyright in a sound recording, film,

broadcast, cable programme or an original database shall not be infringed by its being copied in the course of instruction or preparation for instruction...but mandates that....

• Copying is done by or on behalf of the person giving or receiving instruction

• Copying results in only a single copy being made

• The copying is accompanied by a sufficient acknowledgement

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Education exception - miscellaneous

• Permits copying for the purposes of an examination by way of setting questions, communicating questions to the candidates or answering questions but does not permit the making of a reprographic copy of a musical work for use by an examination candidate in performing the work

• Infringement does occur where an exempt copy is subsequently sold, rent or lent or offered or exposed for sale, rent or loan or otherwise made available to the public

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Performing, playing or showing work• Audience must be limited to persons who

are teachers in or pupils in attendance at an educational establishment, or other persons directly connected with the activities of that establishment

• Performance by a teacher or pupil, or performance at the establishment by any person, for the purposes of instruction

• Includes the playing or showing of a sound recording, film or broadcast or cable programme

• Presence of parents or guardians not included in these exemptions

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How much can be copied by reprographic means?

• Copying must be by or on behalf of an educational establishment

• Work must have been lawfully made available to the public

• Short passage• No more than 5% of a work in a calendar

year• Anthologies - No more than 2 excerpts

from work of same author within a 5 year period

• Statutory exemptions are not applicable where a licensing scheme exists

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UCC – ICLA Licence

• Over-rides statutory prohibitions• Use is limited to the terms of the

licence• Licence extended to digital

copying 1/1/2006• Exhaustive list of licensed

materials (ltd by publishers)

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Original ICLA licence• Permits UCC staff/students to copy

extracts• Limits to the extent of permitted copying• Limited by scope of ‘licensed materials’• Must be a copy of the original work• http://secretary.ucc.ie/copyright/ICLALicen

ceAgreement.doc

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‘To copy’

• “…to make or permit the making of a photocopy or any reproduction of Licensed material on to paper by means of any reprographic process, excluding the making of a reproduction by electronic or digital means…”

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Extent of licence• To make and permit copies as

required by the employees or students

• To make the copies available to students/staff

• Provided such copying is not in connection with any commercial activity other than educational purposes

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Limitations• Not exceed 5% or one chapter

of a published work, save:• A whole article may be copied,

but not more than one article in any one issue of a publication

• A short story/poem of not more than 10 pages in length can be copied

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Other issues• Copy must be made from the original• Number of copies must not exceed the

number of students in a class, plus 2 copies for each teacher or lecturer

• Permits compilation and distribution of course packs for specific courses

• Such materials cannot be sold or rented but the Licensee can charge for the expense of producing the material

• Express prohibition on electronic copying

• Must include name of author and publisher on front page of each copy

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Digital and Intranet extension

• Supplements original licence• Operative since 1 Jan 2006• Permits scanning, posting on

blackboard and printing of material• Limited to ‘licensed works’• Expressly excludes posting material

on worldwide web• http://www.ucc.ie/en/media/support/oc

la/compliance/UCCDigitalLicenceAgreement.pdf

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What is permitted now?

• Scanning of material for digital reproduction

• Make available digital copies of licensed materials via Blackboard

• Print and permit to be printed onto paper, digital copies of licensed material

PROVIDED FOR EDUCATIONAL PURPOSES

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Limitations to license

• Must copy original material only• 5%/one chapter limitations apply• Not authorised to amend, alter or

manipulate material• No reproduction on world wide web• Can’t send material by email

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More limitations• Can’t make digital copies of any

graphic or visual work unless integral to text being copied

• Can’t make copy to CD, DVD, floppy disk etc.

• Can’t collect or store digital copy except for technical back-up purposes

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Included publishers

• Schedule to the agreement• Currently 63 publishers

included• http://www.ucc.ie/en/media/su

pport/ocla/compliance/UCCDigitalLicenceAgreement.pdf

• US publishers included• UK publishers excluded

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Rights of the Employer• Section 23 2000 Act

“Where work is made by an employee in the course of employment, the employer is the first owner of copyright in that work, subject to contrary agreement between parties”

• Importance of employer/employee clarity

• University policies more typically focus on inventions and related patent laws

UCC IP Policy

Ownership of IP:• The University owns all IP rights in works

generated by staff in the course of their employment by the University and students during their courses of study.

Re Copyright:• But the University does not assert

ownership of copyright of pedagogical, scholarly or artistic works, regardless of their form of expression, unless there is a written agreement to the contrary.

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Moral Rights• Chapter 7 – 2000 Act• Retention of integral rights by

author• Expressly includes:

– Paternity right– Integrity right– False attribution– Prevent mutilation

• Rights can be waived in writing but cannot be assigned nor alienated

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Remedies for breach

• Criminal and civil remedies

• Whose rights are breached?

• EC Enforcement Directive• Civil proceedings

– Damages– Injunction– Cease and desist– Account for profits and gain

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Creative Commons project

• Facilitates waiving of © and sharing/using of work

• Returns the power and extent of sharing to the author

• Website offers a variety of licenses at no charge

• UCC Law Department is the Irish partner

www.creativecommons.org