The coronavirus pandemic and the consequent lockdowns across the globe has completely turned our everyday lives upside down. Social distancing, work from home and online classes are the current norm. While we adjust to this new normal, issues surrounding the uncertainty of how copyright law applies to online education have cropped up. This post analyzes the position of Indian law on the copyright related questions that have arisen in other jurisdictions in the wake of online teaching and the scope of educational fair use provisions under the law.
Issues
Currently, some of the issues surrounding online teaching and copyright law are as follows:
- Do the educational fair use provisions extend to online teaching?
- Do the video recorded classes that use copyrighted material have the same protection as physical classes?
- Will university libraries uploading a digital copy of the textbooks available in the physical library onto the digital library receive protection?
Fair Use Provisions in India
Section 52(1) of the Copyright Act lists out acts that do not constitute copyright infringement. sections 52(1)(h) to 52(1)(j) contain exceptions for use of copyrighted material for educational purposes. Whether a particular use of a copyrighted work falls within the scope of these provisions is determined by whether it is made for the purpose and in the manner as specified therein. As held by the Delhi High Court in the landmark DU Photocopying case, the four-factor test used in other jurisdictions such as the US to make a fair use determination does not apply under the Indian law. The court clarified that the fairness of use under section 52 is to be determined only by the wordings of the provisions and the limitations specified therein.
In particular, there was an elaborate exposition on what falls under the educational exception (section 52(1)(i)) and how the exception is to be understood within the larger context of the goal it seeks to achieve. section 52(1)(i) permits reproduction of any work by a teacher or pupil in the course of instruction (among other purposes). In determining the permissibility of use of copyrighted work under this exception, the Court held that the extent or quantity of the material used does not matter as long as it is reasonably necessary to use the same for the purpose of educational instruction. And the scope of words ‘in the course of instruction’ as per the expansive interpretation of the Court, isn’t merely limited to classroom lectures but includes any activity that falls within the ambit of providing educational instruction, both prior and post the actual act of lecturing. With this background, I’ll now look into how the above mentioned issues in relation to online teaching will play out in India.
Online Teaching and Fair Use
1. Does the educational exception under section 52(1)(i) apply to online teaching?
Educators have raised concerns about whether the educational exceptions under copyright law extend to online education. Particularly, whether the reading out of books to students on video classes offends copyright law since they are no longer within the physical classroom set up. While the language of the exception under the Indian Copyright Act does not expressly contemplate online education, as clarified by the DU Photocopying case, the scope of section 52(1)(i) is not limited to classroom teaching but the entire process or programme of education in a semester, which would include online education as well. In any case, online classes would be covered under classroom education because the change in the medium has been forced onto us due to the pandemic and is currently the substitute for traditional physical classes. Beyond this, as long as the reproduction is shown to be necessary for educational instruction (even if outside of classes) it would be covered under the exemption, the medium of use being no bar.
2. Do video recordings of classes that use copyrighted material have the same protection as teaching in physical classes?
This may be a trickier question to answer. Given issues of internet access, live classes turn out to be fairly impracticable. So, educators are also uploading recorded videos on commonly used platforms like You Tube, where they can be accessed at any time and are also easier to share. While face-to-face teaching provides more flexibility in respect of the display and distribution of copyrighted material, the same may not be available for recorded videos.
According to section 3 of the Copyright Act, ‘publication’ means making a work publicly available through copies or by communicating the work to the public. Uploading teaching videos on YouTube and similar platforms and making them publicly available would amount to publication under this definition, making it subject to section 52(1)(h) which limits the use of copyrighted works in such publication to two short passages from the work (unlike section 52(1)(i) which does not specify a limitation on the quantum of material reproduced). While this limitation may be harder to tackle, exceptions from penalties can be advocated for given the circumstances. While platforms like YouTube offer Fair Use Protection, copyright take down notices can be filed by anyone. There is a fair chance that this would prevent educators from using the platform, which is perhaps more accessible than others. While the option to take permissions from the copyright owner or seek licensing is available, both are fairly time-consuming activities and may not be feasible right now. Uploading lecture videos marked as “unlisted” so that they don’t show up on YouTube’s public pages or substituting copyrighted material with open access resources for recorded lectures may be some of the ways to jump over this hurdle.
3. Will university libraries uploading the textbooks available in their physical library onto their digital library receive protection?
Apart from the use of copyrighted material in online classes, the sharing of copyrighted material through digital libraries is a concern. Not only course packs or materials for class discussions need to be shared with college and university students who have been forced to stay off campus, other library resources also need to be made available for the students in need of the same for research, projects, co-curriculars etc. Presently, the Copyright Act painfully falls short in addressing concerns regarding setting up digital libraries, even in such situations of emergency. Section 52(1)(n), brought in through the 2012 Copyright Amendment Act, permits a ‘non-commercial public library’ to store a digital copy of those works which it already possesses a physical copy of, for the purpose of the preservation. While this allows for storage of a digital copy, it provides no clarity as to the permissibility of distribution/communication of that copy. Is that implied in it, at least in circumstances when the physical copy is destroyed or even no longer accessible (for instance, during a lockdown)? If not, what’s the purpose of this provision? Further, varying terms ‘library’, ‘non-commercial library’ and ‘non-profit library’ are used in the Copyright Act, causing more confusion regarding whether university libraries are covered under this provision or not. On a brighter note, digital libraries like JSTOR are expanding their free content, which would go a long way in ensuring continuity in online education.
Policy Considerations for the Future
With many countries declaring COVID-19 a disaster, it is doubtful that the issues of copyright law are going to be a priority concern. Nonetheless, the pandemic has only expedited our need to think of a copyright law that is more cognizant of digitization and is more anticipative of extraordinary situations. The move to online education demonstrates the need for planning within the Indian copyright law framework for a situation that is here to stay at least for the immediate future.
The first policy consideration to be addressed is the need to balance the educational fair use exceptions and the rights of copyright owners. While the courts have determined that educational instruction has the power to crop copyright law, it is high-time for the legislature to create provisions that ensure the continuity of education isn’t hampered due to possible ambiguities concerning the use of the exception that may arise due to circumstantial changes such as the change in the medium of education.
Second, digital libraries are very much becoming a part of our higher educational infrastructure. Copyright law must be amended to comprehensively deal with the digital environment as the law relating to traditional libraries is quite inadequate in its application to digital spaces. Questions surrounding multiple users accessing the same resource, availability of the copyrighted work on the internet through digital libraries etc., cannot be analogically addressed using the present law.
Third, the fact that copyright issues are still a consideration during a pandemic shows that the law and policy haven’t really contemplated extraordinary situations. While one wouldn’t necessarily make the immediate connection between copyright law and national emergencies, the need to restore normalcy right now largely depends on our ability to carry on those activities that we can, within our spatial confinements – and education is definitely the most important one among these. Issues of digital access apart, making available academic resources to students through the internet, at least in the same manner that physical resources would have been offered (library borrowing, copying etc.) is imperative. For instance, the fair use provisions can be expanded during situations of emergencies, to allow schools and universities to shift their library catalogues to digital databases or online repositories, share course-packs and lecture recordings etc., without having to wait for licensing or permission from copyright owners.
While the concern over copyright law during a pandemic that has stretched thin all our resources may seem misplaced, its effect on one of the most fundamental needs of society, an education, only shows us that this issue cannot possibly be overstated.
I would like to thank Pankhuri Agarwal for her helpful comments and suggestions.
Please click here to view our other posts related to COVID-19 and here to view other important IP developments related to it.
To convert a physical library into a digital library, Fair use need not be the only answer IMO. Licensed uploads, either through a voluntary license or even a statutory license can be an equally effective tool. The idea of providing “easy access” to good education should not be mixed be “free access” to education. Free access mostly causes an unfair commercial loss to the authors who then get disincentivized to create more content. They also have families to feed you know! A licensing mechanism with price regulation can perhaps offer a win-win to the author as well as the public, I feel.
How would free access to a digital copy of a book that the library already owns a physically copy of, during this pandemic, cause any unfair loss to the copyright owner? If not for the pandemic, students can access those physical copies in the library and wouldn’t necessarily need access to digital copies. If there was no pandemic, copyright owners wouldn’t earn anything from a library in respect of a book that it has already bought a physical copy of (unless the library wants a digital copy in addition). So now that there’s a pandemic and library is not able to make that physical copy available to the students, should the copyright owners be allowed to take advantage of the situation and make money out of it (which they wouldn’t earn if no pandemic)? Why can’t the preserved digital copy made under section 52(1)(n) be used by students now, when the physical copy is as good as destroyed ? And if publishers are going to incur unfair losses if a digital copy of their works is made freely available during a pandemic, then why have so many of them on their own made it freely accessible?
It should be the owners choice to decide whether to allow his book for free or not, no? Pandemic is not the main issue here, free use of content under the doctrine of fair use is. Digital copies have a fair greater user reach and when you make a book available digitally to millions as opposed to a limited few in the physical world, it matters to the owner. What is the problem in the owner getting a little reward for his work. Free kyun chahiye har cheez? Reasonable rates for those who can afford, subsidized rates for those who can afford less and then may be free for those that are under privileged can also be a structured way of exploiting a book in a way that encourages both sides.
As regards the conversion of a physical book into a digital library, that just takes me back to my argument on “easy access vs free access”. Under Fair Use, there is free access. What I am advocating for is easy access where the owner also feels incentivized. What is the issue in taking the owner’s permission before converting the book into a digital copy? Why is there always a presumption that if an owner is earning money of his work, that’s such a bad thing to do?
You seem to be reading this piece completely devoid of the context in which it is written.
“Pandemic is not the main issue here” – really? the entire post is written in the context of COVID pandemic and what sort of fair uses are available in such scenarios. Pray tell me, how will digital copies reach “millions” (your words) when a non-profit library makes it available to the students or its subscribers? Even if further dissemination is the concern, there are a number of ways available to limit it.
“Free kyu chahiyen har cheez” – I am frankly appalled that this is the kind of spirit you want to live by when the whole globe is engulfed by a pandemic. No one has asked for “free cheez” but their right to access materials well and truly provided for under the legislation. I suppose your use of Hindi (a language which a good percentage of Indians don’t understand) should be a good indicator of the exclusionary spirit you want to propagate.
Also, pl tell me how librarians/universities are expected to negotiate and finalize licence agreements in the middle of a global pandemic???
Ok, first of all, calm down and keep this discussion healthy if you can 🙂
It’s ok to for different people to read the article differently, right? No need to be so aggressive and “appalled” just because I had a different take here.
Second of all, the legal issue raised in the article, to my mind, was more to do with fair use and less to do with the Pandemic. Yes, the Pandemic is indeed the context but my comment was more on the interpretation of what is fair use under 52(1)(n) and whether that is the right way forward given the owner’s interests. The section says what it says unfortunately, covid won’t change that. And the interpretation and policy of law is best framed keeping the larger picture in mind, not a temporary contingency.
Thirdly, did you really just equate me using Hindi with displaying of an “exclusionary spirit” toward non Hindi speaking readers? For real? Anyway, I won’t even dignify that with a response.
Fourthly, and just to answer your query about how the libraries would get a license from the owners in this situation, compulsory / statutory licensing can be a decent option you know. If this option can work well under the Patents Act to make medicines available at mandatory pricing, it can surely be given try for books, no? Or, How about declaring books an essential commodity and passing a notification mandating their availability and fixing the a bare minimum access price. Surely, if one puts his mind on it, several reasonable ways can be found to make this work.
I’d be happy to have a substantive discussion on this, but something tells me that another anonymous, bashful response with a fake user name is coming my way after this comment ( though I hope not 🙂
I think Ankit’s use of contemporary idiomatic Hinglish is okay and shouldn’t pose any problem to non-Hindi speakers: Pandemic Panda’s response shows that he/she understood what he said perfectly well. I don’t see how any kind of exception for pandemics could be worked into section 52. The question turns on the interpretation of the educational exceptions, and since the facts of the DU case were different it is by no means clear that the decision in the case is a precedent for the situation that Namratha discussed, as she herself noted.. Without expressing any opinion, I must say that unlike Ms or Mr Panda both Namratha and Ankit discussed the point at issue.