E–learning Research: copyright and the principle of fair dealing in education

Firstly, what is meant by "fair dealing"? The notion refers to exceptions in the application of copyright that may be claimed as applicable to specific breaches of an author or artist's rights. In a limited set of situations, one could offer as a defence in court that a breach of copyright is "fair" under the accepted meaning of that part of the copyright legislation. Whether a specific breach of the law is "fair" or not is always a matter of judgement.

What then is allowable? Under "fair dealing" it is the case that certain educational activities that breach copyright are acceptable. These exceptions are however very strictly defined. Stepping outside of the boundaries leaves one with no legal defence. The boundary is simple, as Raymond Wall explains in his very useful Copyright Made Easier (Aslib/IMI 2000): one may break another person's copyright by making a copy if that copy is to be used for either research or private study. If used for research purposes, then the copy may be circulated amongst the researchers, or they may each make their own copies. If used for private study, the copy may be used privately by a single "student":

'Private study' has become accepted as excluding group or class study… p.169

Notice that the shared use of copies in the research context does not apply to the study context. Copies cannot be made for and circulated to classes of students. This may be quite a surprise. We have become familiar with the following activity:

…someone possessed a photograph of a painting, taken for research or private study, and subsequently showed it to a class… p.273

For example, a slide of an artwork being presented to a class. And as Wall argues, we are justified in considering this not to be a problem:

…it is doubtful whether the rights owner would object… p.273

But the fact is that in doing so we have no legal right or recourse to "fair dealing". If we then seek to transfer this scenario to the digital world, making a scanned file of the artwork and "showing" it to the class via the internet, rights owners understandably get a lot more upset and a lot less charitable. Digitisation enables the rapid production and circulation of multiple copies, beyond the original good intentions of the person who originally scanned the image – bad news for rights owners. One might then consider claiming that the digitised image is circulated via the internet for research purposes and not for private study. This almost works. Unfortunately, we should remember that "fair dealing" is not a guaranteed right, but rather a possible defence that may be available if indeed the dealing were fair. However, if the digitised image were to become available beyond the research group, and multiple copies are made for purposes beyond the research, then the rights of the copyright owner have been infringed unfairly.

There is then a chain of misconceptions that lead people from acceptable fair dealing for private study or research, to the abuse of copyright online. And subsequently I must often explain that just because you can share an image for research purposes or show an image in a lecture, you cannot therefore digitise that image and put it on your web site.

Does this then mean that we can do very little with digital media? There are two further possibilities that may provide the rights to use the media. Firstly, there is the lapsed-time defence. A moderately complex set of rules governs the persistence of copyright after the creation of object or the death of the artist/author. Unfortunately this is not at all straightforwards.

In the case of an artwork, current ownership may lie with a gallery or other body that has licenced the right to make a copy to a specific person (or excluded others from the right under specific contract, such as the right of the public to enter the gallery). The person who then creates the image of the artwork then holds the copyright of the image, but under contratcual terms imposed by the gallery. When reproducing an old artwork, by for example scanning a postcard, one must respect the copyright of the person who created the image of the artwork that is being reproduced.

In the case of a sufficiently old text, although no specific reproduction of it can be copyrighted (even a different presentational form or typography), the text may contain notes or translations that are original to a more recent agent, and therefore part of their rights.

The final and most painful solution is to obtain permission, from the rights owner, to reproduce their work. In some cases, we are lucky to find that someone has already done the work for us. As Wall explains, the exclusion of group or class study is:

…in fact the basis of photocopy licensing of multiple copying in the education sector. p.170

But in many cases, including almost all digitisation, there are no such agreements or agencies. In these cases, permission must be sought on a item by item basis. You simply have to do the tedious work of contacting artists/authors and asking for permission.

Copyright is then a significant blocker to the use of artworks and texts in the arts. The assumption that such educational use is "fair dealing" is false. Without rights agreements and agencies to help, keeping legal is a difficult task. My next investigation on the subject will be to consider the agencies and agreements that are available now, or in the near future, to assist.

Comments and corrections are most welcome (especially if they are from lawyers and free of charge).

Robert O'Toole : 19 Apr 2006 22:56 |  Tags: E-Learning Warwick University |  Comments (0) |  Report a problem