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Table of Contents
Amber Group Participant Time Zones and Countries
- KB - South Africa - UST + 2 hours
- A - South Africa - UST + 2 hours
- CNW - South Africa - UST + 2 hours
- VT - Australia - UST + 10 hours
- DE - Australia - UST + 10 hours
- PC - India - UST + 5.30 hours
- KL - U.S. (Michigan) - UST - 4 hours (Will be in Ghana - UST + 0 hours from Sept 30 - Oct 10)
- JD - UK - UST + 1 hour
Final Assignment
Describe one scenario which you currently experience in which copyright is a factor in the use of learning materials. What is the relevant copyright law in your jurisdiction? Are there any relevant exceptions? Does the law hinder or assist you to obtain access? How could this scenario be improved by open educational resources? Are there any obstacles to using OER's? If so, please describe them, along with proposed solutions or work-arounds.
Australia
Our biggest issue in which copyright is a factor in the use of learning materials, would be the development of learning object repositories, these repositories are great from a learning perspective enabling teachers to share resources and students can access additional resources. As long as these repositories are only available to teachers and students, Australian law allows their use, the statutory licences enable teachers to copy/scan copyrighted material and store them into the repositories, although the organisations must pay a fee for that use. This fee limits teachers' ability to put materials into the repositories. The cost of storing this material has recently become extremely costly to the educational institutions, forcing a rethink of putting material into the repositories.
This situation could be improved by open educational resources (OER) as it enables teachers to access and use material that does not incur additional costs. The major obstacle to this is education, in getting teachers to understand why it is better to use OERs rather than traditional resources they find on the Internet (with the traditional all rights reserved tag).
Another issue for teachers is the ability to adapt and contextualize the material for the locality. This is a problem for statutory licencesed material, but it can be easily fixed by using/creating OER with the the Attribution (CC BY) or the Attribution Share-Alike (CC BY-SA) material. There is some complication in copyright ownership: teachers in Australia are employees (school and vocational) and the copyright for the material that they develop belongs to the institution that employs them. It is therefore up to the institution, or representatives of the institution such as department heads, to set the policy to allow teachers to release the materials that they develop as OER.
These work arounds are not difficult and the OER community and framework is in place, it is just a matter of educating teachers and policy makers in institutions on the economic and other benefits of using OER and of releasing their works as OER licences so that all may share, use, and benefit. In Australia, the technology is almost in place; the education/knowledge of educators just needs to reach critical mass and we will be well placed to contribute and benefit from OER.
(sorry guys bit short - calling plane must go)
South Africa
We have a similar situation as in the Australian case where the creation of learning object repositories is one of the most important learning material activities. Access to sufficient, appropriate learning materials is a great challenge for educators and learners in South Africa. One solution is to make learning material available online as open educational resources (under an open licence such as Creative Commons) and allow for contextualisation, adaptation, copying and distributed or aggregated printing.
Unfortunately we do not have the clear and supportive legal context that Australia has. As mentioned earlier in this course, the SA Copyright Act is very vague on exceptions for educational use. Section 12 of the act deals with fair dealing and explicit exceptions:
12. (1) Copyright shall not be infringed by any fair dealing with a literary or musical work—
(a) for the purposes of research or private study by, or the personal or private use of, the person using the work;
(b) for the purposes of criticism or review of that work or of another work; or
(c) for the purpose of reporting current events—
(i) in a newspaper, magazine or similar periodical; or
(ii) by means of broadcasting or in a cinematograph film:
Provided that, in the case of paragraphs (b) and (c) (i), the source shall be mentioned, as well as the name of the author if it appears on the work.
12. (4) The copyright in a literary or musical work shall not be infringed by using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as
the name of the author if it appears on the work.
Section 13 deals with general exceptions:
13. In addition to reproductions permitted in terms of this Act reproduction of a work shall also be permitted as prescribed by regulation, but in such a manner that the reproduction is not in conflict with a normal exploitation of the work and is not unreasonably prejudicial to the legitimate interests of the owner of the copyright.
It is not clear how much of a work can be copied and used without the express permission of the author or rights holder. Educators wanting to reproduce or adapt learning resources for their classroom under fair dealing would have to justify it based on their interpretation of the act, and even more so if they wanted to include the resources in an online repository. Here the law hinders access, as educators are afraid of copying even the smallest of sections, or which ever sections they needed for fear of infringing copyright. Obtaining permission from rights holders is time consuming and often to resources intensive for underprivileged schools. Those bold enough to go ahead, run the risk of being accused of infringement and challenged in a potentially costly and embarrassing process.
This situation would be greatly improved through the use of open educational resources. The licences associated with open educational resources make it clear to potential users what they may and may not do with the relevant resource. It removes the permission process for educators and will at the very least allow them to make the copies of the resources they need for their classroom. If compatible licences are used, it also allows teachers to adapt resources by taking, combining and re-sharing what they need.
However, this is not always the case. Although all open licences intend openness, licenses offer different levels of freedom and licences are not always compatible, which could lead to educators not being able to combine resources. It would be great if everyone used the most open licence possible, but that is not possible or appropriate for everyone. In the absence of that rights holders should make their contact details clearly available with their open educational resources to allow potential users to contact them when they are not sure what they may do and would like to request permission. An online system that could help educators clear content and gain permission for some standard use cases could also help.
An even bigger challenge is using content under fair dealing as part of open educational resources. It is not at all clear what is allowed and once available online in a repository, it becomes even more difficult for users who would like to re-use in other countries. A clear definition of fair dealing and explicit exceptions in the act for education would help resolve this for South Africa. Standard minimum exceptions for education across all jurisdictions would resolve this for everyone. In the absence of that, users have to be confident that their use is lawful under the act and make the argument for themselves before using the materials or adding them to a repository.
Only once we have the legal framework resolved, can we start addressing the more practical and technical challenges faced by users as described in the Australian case.
Case study week 5
Scenario
Professor Zanele Dube has written a fantastic introductory text on integrated weather prediction, a new field, which is evolving very fast. She stores her notes in a Word document, which she prints out for her students at the beginning of the semester. Sometimes students make suggestions on what to add, or change, which she works into the next version. She is interested in making it available digitally, to save the printing costs, and to allow her students to leave comments directly online, but is worried that others might take it and use in ways that she is not comfortable with. She does not want others to get rich from her work. She wants to know if others are using it. And of course, she feels that she should always be attributed.
Professor Zanele Dube is based in in South Africa, and part of a teaching network in Southern Africa. She wants to share materials with a colleague Prof Maria Mashaba in Maputo.
The teaching materials which the professors want to share includes
(1) a copy of a recent research article authored by one of Professor Mashaba's post graduate students and
(2) an electronic copy of an article published in an all rights reserved journal that Professor Dube's university library has made available in the university intranet under a license from the publisher, and
(3) a scanned version of an article which Professor Dube has used under fair dealing, and
(4) lesson notes from Professor Dube which incorporates photographs used under copyright exceptions, and
(5) Tsonga translations of the 1-4 prepared by the Professor's working together.
Questions on Scenario
1. How can she use technology (formats, hosting) and licenses to achieve what she wants? (Answer for your own jurisdiction)
2. What licence or licences would be appropriate for her to use on the work? (Answer for your own jurisdiction)
3. How does copyright law affect the cross border transfer of each of the materials listed? (Answer for the jurisdiction listed)
Response
Case 5 CE1 Case Study 5
1. How can she use technology (formats, hosting) and licenses to achieve what she wants? (Answer for your own jurisdiction)
Australia
As with week 5, Professor Dube should use a rights sheet to keep track of the items. She has some options by utilising technology to achieve the preferred outcomes. There are a number of learning management systems (LMSs) available that require students and teachers to authenticate in order to access these "virtual classroom" environments. The listed material could be contained within a LMS. Alternatively another 'closed' website such as wiki that requires login and only provides access to teachers and students could also meet the 'virtual classroom' criteria.
In order to make the materials publicly available online, Prof. Dube would have to contact the copyright holders (the post graduate student, the publisher of the journal article, the publisher of the scanned article, and whoever owns the copyright of the photographs) to obtain an appropriate licence or permission. Also the Tsonga translations would be considered an adaptation under the Copyright Act 1968 section 10 adaptation means (i) a translation of the work. So permissions would be required.
South Africa
Before making her teaching materials available digitally, Professor Dube would have to clear the rights of the materials by contacting the copyright holders and asking their permission to either make it available digitally herself through a specific licence granted by the rights holder, or gaining access to an online version already made available by the copyright holder. She would also have to get express permission from the copyright holders to scan the article and digitise it and to translate the materials, as these are considered adaptations and are not permitted under South Arican copyright legislation without permission from the copyright holder. Articles published in all rights reserved journals are typically not freely available online or for republication by others online. In this instance she could self-archive a pre-print version of the article and make that available online.
In order for her students to be able to access and leave comments on her teaching materials, Professor Dube would have to make the materials available online (rather than just electronically on a CD or flash drive). Given her concerns about how other may use the materials, she should make it available in an uneditable format such as pdf on the internet in a content management system or a learning management system, or locked down in a 'closed' wiki or on a website. Given that her students are her primary target audience, she could opt for an university intranet system that would give only the students access, but then she would not be able to share the materials directly with Professor Mashaba online.
2. What licence or licences would be appropriate for her to use on the work? (Answer for your own jurisdiction)
Australia
For her own works there are some licensing options to suit her needs. To protect the work, but put it up on the internet, I suggest a Creative Commons Attribution-Noncommercial-No Derivative Works 2.5 Australia License located at: http://creativecommons.org.au/licences . Alternatively in the vocational education sector in Australia there is the AEShareNet licences while there is a number of them, the AEShareNet-FfE - Free for Education http://www.aesharenet.com.au/coreBusiness/ would enable the works to be shared for educational purposes while ensuring attribution, with no derivatives and no commercial use. Duel licencing may also be an option.
South Africa
Professor Dube can only determine the licencing for the materials of which she owns the copyright. The others will be determined by her agreement with the copyright holder and fair dealing and exceptions under the copyright act in South Africa. She could rely on traditional copyright protection for her work, as she does not want to allow others many freedoms in using her materials. However, it does seem that she does want to allow others to copy the materials. She could therefore apply a Creative Commons Attribution-Noncommercial-No Derivative Works (CC-BY-NC-ND) licence. The attribution requirement will ensure that she is attributed as the author and copyright holder. The non-commercial requirement will ensure that others do not use her work to make money. The no derivatives requirement will ensure that others will have to ask her permission before they use it in any other way than just as is, which would let her know and control how others are using her work.
3. How does copyright law affect the cross border transfer of each of the materials listed? (Answer for the jurisdiction listed)
As we have discussed throughout this course, copyright law differs across borders. The most problematic areas of copyright when sharing across borders is in the realm of copyright exceptions & limitations (CEL), more specifically in what what is eligible for copyright and fair use / fair practice / fair dealing. For example, one country may afford databases of facts strong creative expression and another country may say the database is just facts and therefore not creative. Another example would basic line graphs or bar charts which are considered creative expression in one country and may be in another. We have already discussed on multiple occasions that fair use / fair dealing / fair practice differs in each country - both within and outside of the classroom.
The Creative Commons Unported licenses are one of the most compatible methods for sharing copyrighted materials across borders. The unported license has been constructed in accordance with the Berne Convention, a copyright treaty signed by most countries.
Andrew Rens (one of our course leaders) has written a great paper for the IDRC on the topic of cross-border CEL. His title is "Implementing WIPO’s Development Agenda: Treaty Provisions on Minimum Exceptions andLimitations for Education": http://www.idrc.ca/en/ev-141335-201-1-DO_TOPIC.html
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Drafts
South Africa
1. Before making her teaching materials available digitally, Professor Dube would have to clear the rights of the materials by contacting the copyright holders and asking their permission to either make it available digitally herself through a specific licence granted by the rights holder, or gaining access to an online version already made available by the copyright holder. She would also have to get express permission from the copyright holders to scan the article and digitise it and to translate the materials, as these are considered adaptations and are not permitted under South Arican copyright legislation without permission from the copyright holder. Articles published in all rights reserved journals are typically not freely available online or for republication by others online. In this instance she could self-archive a pre-print version of the article and make that available online.
In order for her students to be able to access and leave comments on her teaching materials, Professor Dube would have to make the materials available online (rather than just digitally on a CD or flash drive). Given her concerns about how other may use the materials, she should make it available in an uneditable format such as pdf on the internet in a content management system or a learning management system, or locked down in a 'closed' wiki or on a website. Given that her students are her primary target audience, she could opt for an university intranet system that would give only the students access, but then she would not be able to share the materials directly with Professor Mashaba online.
2. Professor Dube can only determine the licencing for the materials of which she owns the copyright. The others will be determined by her agreement with the copyright holder and fair dealing and exceptions under the copyright act in South Africa. She could rely on traditional copyright protection for her work, as she does not want to allow others many freedoms in using her materials. However, it does seem that she does want to allow others to copy the materials. She could therefore apply a Creative Commons Attribution-Noncommercial-No Derivative Works (CC-BY-NC-ND) licence. The attribution requirement will ensure that she is attributed as the author and copyright holder. The non-commercial requirement will ensure that others do not use her work to make money. The no derivatives requirement will ensure that others will have to ask her permission before they use it in any other way than just as is, which would let her know and control how others are using her work.
Australia
1. As with last weeks session Professor Dube should produce a rights sheet to keep track of the items. She has some options by utilising technology to achieve the preferred outcomes . There are a number of learning management systems available that require students and teachers to log in, these provide "virtual classroom" environments. The listed material could be contained within a learning management system. Alternatively a 'closed' wiki that again only provides access to teachers and students could meet the 'virtual classroom' criteria.
To put the material up on the internet using licenses, would require some negotiation with the post graduate student, the journal article, the scanned article, and the photograph exceptions, to obtain an appropriate licence or permission to enable the material to be put up on the internet. Also the Tsonga translations would be considered an adaptation under the Copyright Act 1968 section 10 adaptation means (i) a translation of the work. So permissions would be required.
2. For her own works there are some licensing options to suit her needs. To protect the work, but put it up on the internet, I suggest a Creative Commons Attribution-Noncommercial-No Derivative Works 2.5 Australia License located at: http://creativecommons.org.au/licences . Alternatively in the vocational education sector in Australia there is the AEShareNet licences while there is a number of them, the AEShareNet-FfE - Free for Education http://www.aesharenet.com.au/coreBusiness/ would enable the works to be shared for educational purposes while ensuring attribution, with no derivatives and no commercial use. Duel licencing may also be an option.
India
1.
2.
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Case study week 4
Scenario
Bongani teaches at a community college, students pay fees but the college also gets money from the government, and Bongani is paid for her teaching (although not very well). Bongani wants to make use of open licenced resources in handouts to students, including some interesting resources she found marked CC BY-NC and a few others marked CC BY-NC-SA. Bongani is concerned because she will have to charge the students for the cost of making copies. Bongani has been told that non-commercial means "not for profit" and she wanders if the the students paying for the course, and her being (poorly) paid, make the use a commercial one.
Bongani also wants to use the material on her blog which she licenses under CC BY-SA, which was set up by the college and links to it.
Bongani has created lesson notes, the majority of images and text on her own. However, she has also supplemented her work with those of others. Though she has used others’ work in her own, she could not make the proper attribution for various reasons including: she could not determine the identity of all of the original creators, she did not know how to get permission, she did not know or think that she needed permission, and some uses she deliberately made use under an exception. Bongani's lesson notes have been used to teach at her community college, both in her own class, and in other classes in the same department. But now, Bongani plans to publish the notes more widely, making them available through Siyavula.
Questions on Scenario
Are Bongani's use of the NC material permitted? Would Bongani's use of the material change if the college has Google Adsense running on her blog?
What copyright issues must Bongani resolve to publish her notes on Siyavula? Can she post the resources licensed under CC BY-NC-SA on her blog that is licensed CC BY-SA?
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Response
If we assume by the term 'community college' that Bongani's college is a public education institution, even though students pay fees this is for cost recovery rather then for profit as the government only provides partial funding. Then her use of the creative commons non-commercial material would be fine, as it meets the criteria. This would be different on her blog if revenue is derived from Google Adsense for advertising as this would no longer meet the non-commercial criteria.
You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in con-nection with the exchange of copyrighted works http://creativecommons.org/licenses/by-nc-sa/3.0/legalcode
For Bongani to use her material on Siyavula, she will need to resolve the attribution issues. This will require her to produce a rights management sheet for the work, while much of it is her own, she will need to identify others works and make decisions. If attribution is not possible, then an alternative may need to be found. Siyavula appears to be a resource for all teachers within the jurisdiction, if that is the case, then Bongani, could put material up, that includes her deliberate exceptions material, as all teachers in the network would/should have the same rights to use the exceptions.
Bongani cannot post material originally licensed CC BY-NC-SA on her blog as CC BY-SA because the share alike condition does not allow her to change the license.
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Case study week 3
Scenario
Francesca is a teacher at a less privileged, under resourced school. Because this school lacks resources Francesca does not have access to technologies such as a smart board. At high-end schools, teachers often scan materials onto smart boards and present it to their students. Though Francesca has access to a photocopy machine, she is afriad of making multiple copies of this material. However Francesca needs this material to properly educate her students. To comply with what she believes copyright law requires, Francecsa decides to transcribe this particular work onto a transparency to and then to display it on a projector for students to copy in their notes, even though it means making a special arrangement to borrow the projector.
Questions on scenario
Is this form of reproduction a violation of copyright laws?
If so, how could Francesca avoid violating copyright in this situation??
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Response
South Africa
As discussed in the response to case 2, it is not clear from the South African Copyright Act how much copying is allowed for teaching purposes. The guideline given is that the use of the work should be “compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose”. It is therefore not clear whether The Act does not make any distinction between digital and non-digital copies.
Changing the format of a copyright work, as Francesca did when making a transparency of the work, means making a copy. Making a copy without the copyright holder's permission is a copyright infringement. To do so legally, Francesca will need a copyright licence from the copyright holder. It would be very difficult and time consuming for each individual teacher to contact the copyright holder directly, creating the need for a convenient way to gain the necessary permission, as offered by collecting societies.
Francesca should contact DALRO (the Dramatic, Artistic and Literary Organisation) in South Africa (http://www.dalro.co.za/index.php?option=com_content&view=article&id=68&Itemid=79). As collecting society for literary works they offer both transactional (general) and blanket licences to individuals and institutions wishing to make copies of such works. They then collect and distribute royalties on behalf of copyright holders.
Francecsa should inquire whether schools in South Africa already have a blanket licence agreement with DALRO (I think they do, but can't find online confirmation???) and whether the work she wants to copy is covered by this agreement. If no agreement exists, she should request such an agreement for a blanket licence in order to legally make as many copies of the work as she needs for her teaching purposes. Such an agreement would typically be valid for 1 year, with the option of renewal for a fee.
A blanket licence would better serve her needs and the needs of the school, as they do not need to record every copy made as they would have to with a transactional/general licence, and the amount to be paid would be much less variable than with a transactional/general licence, allowing for easier budgeting and fund raising if necessary.
Would a blanket licence obtained from DALRO offer Francesca and her colleagues more freedom than the fair dealing provision in the SA Copyright Act? Probably, as the provision in the Act is not clear and the freedoms provided for in the licence would be express.
Australia
It is not clear from the case study how much of the original work Francesca is transcribing onto the transparencies, if it is less than 2 pages or 1% of the original work then Australia has an educational exception. She is transcribing by hand.
Educational exceptions SECT 135ZMB
There are exceptions that are specifically for education and allow free use of certain copyright materials in certain circumstances.
- Reading, performing and reciting a text work during class
Copyright is not infringed by a teacher or student performing, reading or reciting a literary work while giving or receiving educational instruction in a class.
- Communicating a text work for classroom performance
Copyright is not infringed by communicating a text work to allow it to be performed in class eg displaying it onscreen using PowerPoint or using an electronic whiteboard.
- Copying by hand
- Copying for exams
This would also apply if she did have access to technology to use the smart board.
If she is using more than an insubstantial amount (1% - 2 pages), then Part VB statutory licence would kick in.
India
The response for India for scenario 3 is the same as for scenario 2. The Indian Copyright Act (1957, as amended up to 1999) specifies that reproduction of a literary, dramatic or musical work by a teacher or a pupil in the course of instruction, does not infringe copyrights: "The following acts shall not constitute an infringement of copyright, namely.... the reproduction of a literary, dramatic, musical or artisticwork— a teacher or a pupil in the course of instruction; or part of the questions to be answered in an examination; or answers to such questions;" (Section 52, article h, clause i-iii). This is means that Francesca is allowed to copy the work onto transparency in order to present the material to her students. She need not go through the effort to get a projector though as Indian law also permits her to make copies of the work for the students enrolled in her class. It is good scholarly practice for her to give attribution to the original source, but not technically a requirement of the Copyright Act.
Case Study: Week 2
Scenario
Xuan teaches community journalists, Xuan has heard of exceptional use of resources under copyright, but is not sure what that means for her teaching. Xuan would like to make photo-copies of three different resources. One resource is a 10 page article from a local newspaper, another source is a 100 page textbook, and the third is a photograph. Xuan has heard that she can only copy a certain percentage of a resource. Xuan had a couple of different percentages from various people. While some people say the correct fair dealing (or fair use) percentage is 10 percent, other people say that the correct percentage is 30 percent.
Scenario Question
What exceptional uses can Xuan make of the resources, including how much of which resource and under what conditions?
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Response
Australia
Xuan has a number of options open to her. Australian education operate under a statutory licence scheme, whereby public education insitutions have entered into agreements with collecting societies, that allow their teachers/lecturers to copy without permission, as long as some conditions are met. Xuan's resources are all text based, so she would copy material to hand out to her students under the Part VB licence. One of the conditions to copy no more than 10% of the number of pages or One chapter (if its divided into chapters) either printed or electronic or An article from a newspaper, magazine or journal (or more than one if its on the same subject) or 10% of the number of words in an electronic work (Internet/CD-Rom etc). So for the nespaper article and the textbook she could copy up to the limits. For the photograph she could copy as long as she can answer the fairness questions of 1. Why do you want it? 2. What type of work is it? 3. 3.Can you easily get your own copy? 4.4. What effect will the copies have on the market, or value of the work? 5.5. If its part of a work, how much, how important or distinctive is it, in relation to the entire work? It is likely that Xuan could copy the entire photograph. The other condition is that Xuan provides a reference or citation of where she extracted the resources from. This is useful, by also providing for moral rights, the right of attribution. If Xuan chose not to copy the resources herself and just direct her students to the resources, they could then copy the material themselves accessing their fair dealing right of "reseach and study". This allows people who are undertaking research or study (not necessarily in registered courses) to copy material in the course of their research or study. Although the same conditions are placed upon the students ie. the 10% limits and the referencing. This explanation is predicated on the assumption that Xuan is at a public education system, if she was not, the statutory licence would not be available to her, but fair dealing would still be available to her students.
India
Section 52, article h, clause i-iii of the Indian Copyright Act (1957, as amended up to 1999) specifies that reproduction of a literary, dramatic or musical work by a teacher or a pupil in the course of instruction, does not infringe copyrights: "The following acts shall not constitute an infringement of copyright, namely.... the reproduction of a literary, dramatic, musical or artisticwork— a teacher or a pupil in the course of instruction; or part of the questions to be answered in an examination; or answers to such questions;"
It is essential to specify the original source of the work. Xuan can, therefore make use of the resources, as long as she credits the original source of the works and only provides the copies to those students enrolled.
South Africa
Section 12 of the South African Copyright Act deals with exceptions to standard copyright provisions. These allow the use of copyright works for certain purposes without the consent of the copyright holder (SA Open Copyright review, Rens, 2009). Section 12(1) makes provision for the concept of fair dealing (rather than the American fair use) for the purposes of (i) research or private study, (ii) criticism or review, and (iii) for the reporting of current events in newspapers, magazines, broadcast or film. Section 12(4) makes specific provision for exceptions for teaching, provided that the use is compatible with fair practice and that the source and author is mentioned in full.
Fair dealing is generally accepted for personal educational purposes. Should a researcher, lecturer or student make a copy of a copyright work for research or private study purposes, criticism or review, it is considered to be fair dealing. Xuan and her students could therefore individually access and copy the original copyright works for these purposes.
The key question lies with how much, if anything, Xuan could copy and distribute from these works for teaching purposes. Based on the provisions from the Act mentioned above, Xuan should be able to copy these works to the extent that it is fair practice. However, fair practice is not defined and open to interpretation.
In practice, interpretations differ greatly. Many textbook include a copyright notice that forbid the copying of any part of the book for any purpose. This is however in clear contradiction with the provisions in the Act. Publishers and other copyright holders may base their interpretation on the Berne three step test, including reference that exceptions and limitation can not include any activities that unreasonably prejudice the legitimate interests of the rights holder. One of these interests would be the exclusive right to gain economic benefit from the copyright work. Some argument can be made that copying an entire textbook, be it by Xuan or the students, would interfere with this right and there have been instances where authors have challenged students and copyshops on these grounds.
In the absence of any official guideline on which percentage would be reasonable to copy from a copyright work, Xuan would have to ensure that her use (through copying) of the works is "compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose”. Arguments could be made for copying a chapter of a book or 10% of the total work as in the Australian case is justifiable and not excessive. It could be motivated that complete copies of the full article and photograph are needed for the course and can not easily be obtained in other ways by the students.
SA higher education institutions often have agreements with publishers and/or collections agencies to make certain payments to them on an annual basis as compensation for the use of some copyright works without express permission by the copyright holder, including copying and distribution within the context of research, teaching and learning. Xuan should check whether the works under discussion is covered in such an agreement concluded by her institution.
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Scenario Part 1:
Overall: 29 /30
Accuracy: 9 /10
Clarity: 10 /10
Utility: 10 /10
Comments: I like the way that you organized the answers to the scenarios. It was very easy to follow. I did not know about the distinction for works created before 1924 (your answer said 1923 but the cutoff for the public domain in the U.S. is 1924 starting in 2009) but not published until after then.
Scenario Part 2
Overall: 26 /30
Accuracy: 8/10
Clarity: 10/10
Utility: 8 /10
Comments: Fair use would only apply if Professor Dube were at a U.S. university. The question did not specify in which country Prof. Dube lives. Other countries have similar exceptions and limitations on copyright under different names, e.g. fair practice in Ghana, fair dealing in South Africa. In South Africa, articles published in course packs count as compilations, which require royalties. So if Prof. Dube is in South Africa, he could not legally publish it in a coursepack. If he does not publish it as a coursepack but hands out the loan article to his class, or puts it on learning management system behind user authentication, this compilation restriction would not apply he and could use it under fair dealing.
Question 1
Overall: 29 /30
Accuracy: 10 /10
Clarity: 10 /10
Utility: 9 /10
Comments: You explained the some basic features of copyright but left out the purpose of copyright law (e.g. Progress Clause in U.S. Constitution or The Statute of Anne if discussing UK or US copyright law).
Question 2
Overall: 30 /30
Accuracy: 10/10
Clarity: 10 /10
Utility: 10 /10
Comments: You provided a concise answer to a complicated question.
Question 3
Overall: 15 /30
Accuracy: 9 /10
Clarity: 3/10
Utility: 3 /10
Comments: It would have helped to provide more information, such as why copyright covers expression and not ideas, the fact that if two people develop something independent of each other and come up with the same expression they both have copyright in their works, etc.
Question 4
Overall: 24/30
Accuracy: 9 /10
Clarity: 7 /10
Utility: 8 /10
Comments: You covered the two main "tests" for copyright: creative expression and in a tangible. You didn't list everything that's covered by copyright, which can differ by country. I'm curious as to why you highlighted choreography. Would your classification/limitation of copyright to literary and artistic works include computer programs?
Question 5
Overall: 23 /30
Accuracy: 9 /10
Clarity: 7/10
Utility: 7 /10
Comments: I'm less familar with moral rights since we don't have them in the U.S. except for fine art (see Visual Artists Rights Act of 1960), so I can't comment much on the accuracy. You may be right, but I think you could have used an example or two to clarify your point. You provided a quotation with no citation.
Question 6
Overall: 26 /30
Accuracy: 9 /10
Clarity: 8 /10
Utility: 9 /10
Comments: The phrase " the copyright has been abandoned" is unclear. If a copyright work is abandoned, it becomes an orphan work. Even if a copyright holder is unavailble or does police his/her work, the is technically still in copyright. If is only if a copyright holder waives his or her copyright (such as through the CC0 waiver) does a copyrighted work with a term that has not expired become part of the public domain. I think the first sentence is unclear. You concisely explain later that the public domain includes works that have expired copyright terms or rights that have been waived. You didn't include things which cannot be copyrighted (e.g. facts, ideas) in your definition of the public domain. This is picky, but your use of the term federal and state governments is confusing in an international context. (You're talking about U.S. states but, internationally, state is a another word for country or nation.)
Scenarios Part 1
Overall: 28 /30
Accuracy: 9 /10
Clarity: 10/10
Utility: 9 /10
Comments:
The presentation of the answers is impressive.
NASA is a government agency and their work should be in the public domain. The idea of NASA images not being copyrighted "generally" could have been further explained.
Scenarios Part 2
Overall: 27 /30
Accuracy: 9 /10
Clarity: 10 /10
Utility: 8 /10
Comments:
Some publishers may, in some cases, also own the rights for the pre-publication drafts.
The point about the author being in the "same position in relation to the copyright of the work she produced as in using the work by another author" is excellent.
Question 1
Overall: 21 /30
Accuracy: 8 /10
Clarity: 8 /10
Utility: 5 /10
Comments:
A layman reading this answer wouldn't really get a satisfactory answer. He/She would just understand that it's a set of rights, but wouldn't be clear about what that set is.
Question 2
Overall: 26 /30
Accuracy: 8 /10
Clarity: 9 /10
Utility: 9 /10
Comments:
There right to create derivative works could have been more explicitly mentioned.
Question 3
Overall: 27 /30
Accuracy: 9 /10
Clarity: 9 /10
Utility: 9 /10
Comments:
The recording of the idea in a first version does not prevent others from using that idea, in future. The answer does not make this absolutely clear, in the way it has been expressed.
Question 4
Overall: 26 /30
Accuracy: 9 /10
Clarity: 9 /10
Utility: 8 /10
Comments:
A mention of what constitutes "original creative work" would've helped.
Question 5
Overall: 29 /30
Accuracy: 9 /10
Clarity: 10 /10
Utility: 10 /10
Comments:
Some countries allow for the waiver of moral rights.
Question 6
Overall: 26 /30
Accuracy: 8 /10
Clarity: 9 /10
Utility: 9 /10
Comments:
The "when" could have been more explicitly mentioned, in the case of expiry of the term. Also, the works of employees of the government lacks mention, since they are also in the public domain under some circumstances.
Scenario
Professor Zanele Dube has recently completed a research project on the integration of traditional weather prediction practises and modern meteorolgy for practical agriculture, and has recorded her findings and conclusion in an article. The article makes use of a incorporates, factual data on of local weather patterns, original research by Professor Dube, NASA satellite images of clouds and an lengthy account of local weather patterns written by the local bishop in 1905.
In order to promote her research, Professor Dube decides to publish her article in a renowned, international joural; the Unique International Journal of Development. After publication in this prestigious journal, Professor Dube decides to include this article as part of her course. She would like to provide her students with copies of this article for an upcoming class discussion. Professor Dube contacts the publisher and informs them of her plans. However, her publishers refuse to grant her permission. Ratherr, they tell her that Professor Dube's educational institution must purchase this particular journal to gain access to the article. However, because it is a renowned, international journal, it is priced at 5000 U.S. dollars per annum, which Professor Dube's university cannot afford.
Which of the materials used by Professor Dube are subject to copyright? Why or why not in each case?
What could Professor Dube do about the refusal to allow her to assign her own article?
Which of the materials used by Professor Dube are subject to copyright?
Why or why not in each case?
Response
A. Factual data on of local weather patterns?
No, you cannot copyright facts. Copyright protects creative expression. Facts are discovered, not created. Therefore, facts as such cannot be copyright, but a particular style of presenting them, etc may be copyrighted. For example, a basic 2 dimensional table of facts, a simple pie chart, or a basic bar graph would be an obvious arrangement of facts and not eligible for copyright (U.S. law). A more creative expression of facts, such as intricate information visualization or an article interpreting and analyzing the facts and how they were captured would be more creative and therefore eligible for copyright.
B. Original research by Professor Dube
Yes, provided Professor Dube wrote the research down or captured it using his own expression/words in way that is distinct from the journal article.
C. NASA satellite images of clouds
Yes, as original artistic works, if taken within the past 50 years (as per South African copyright law).
NASA's photographs are not protected by copyright unless noted. NASA's imagery, video and audio material can be used for educational or informational purposes, including photo collections, textbooks, publicexhibits and Internet Web pages.
For copyrighted photographs, permission should be obtained from the copyright owner prior to use. If not copyrighted, photographs may be reproduced and distributed without further permission from NASA.
If a recognizable person appears in the photograph,use for commercial purposes may infringe a right of privacy or publicity and permission should be obtained from the recognizable person.
Is the statement above taken from NASA's Terms of Use? Their terms of use is incorrect. I would actually argue that you can use the images for 2 reasons. 1) NASA is a federal government agency and under U.S. law documents created by the federal government and employees of the federal government as part of their regular job are in the public domain. 2) These are satellite images. If they are purely scientific images of clouds and there was no artistic expression added on top of the images (e.g. sketches on top of the images), they would not be eligible for copyright. - Kathleen
D. Local weather patterns written by the local bishop in 1905.
No, as the copyright period on this has expired. This is in the public domain.
E. Published article in international journal
Yes, this is an original literary work fixed in written form.
F. Prof Dube's course pack
Yes, this is a compilation, fixed in written form.
What could Professor Dube do about the refusal to allow her to assign her own article?
She should check her agreement with the journal publishers. Some allow draft versions of the articles to be self-archived and made available to students or anyone else in that way. Otherwise she can describe the content of the article in other words in a new work. The copyright only applies to that fixed version of the work and not to the ideas contained in it.
In future, she could try and negotiate new terms with the publishers and keep for herself the rights to use her article in her teaching and future research.
Questions:
-
What is copyright?
-
What activities does copyright prohibit?
-
Does copyright cover ideas or only expressions?
-
What requirements must resource meet for copyright to apply?
-
What about the rights of authors? Can someone sell the right to be known as the author? What right does the author have over how others who get copyright over her work can change it?
-
What is the public domain? When does something enter the public domain? Are there some works that automatically enter the public domain?
1. What is copyright?
Copyright is a variety of rights given exclusively to the owner of certain creative works to reproduce that work, part of that work, to show that work or perform that work in public, create derivative works or market and sell it. These rights appy to any expressible form of an idea or information that is substantive and discrete and fixed in a medium.
These rights allow the owner to prohibit others from reproducing their work or communicating that work without permission. There is usualy a time limit to this copyright. Owners may sell their rights or license their copyright to others. In Australia, copyright is issued automatically as soon as the creative work is printed or recorded in a material form.
Domestic copyright legislation usually says who has copyright in official works such as legislation. In Commonwealth countries such as Australia, Britain and Canada, copyright in official works is often referred to as Crown copyright.
Where domestic law offers no protection, Protocol 2 of the UCC of 1952 protects officialworks of the United Nations, UN agencies and the Organization of American States.
(Debbie, Neels added to it)
2. What activities does copyright prohibit?
Standard copyright prohibits anyone other than the copyright holder to
- copy/reproduce the work;
- make derivative works of the work;
- sell or distribute copies of the work; or
- perform the work in public
without the consent of the copyright holder.
3. Does copyright cover ideas or only expressions? (punchagan)
Copyright only covers works or expressions of ideas. It does not cover ideas, unlike patents.
In the Indian context, works in which copyright subsists is -
- Original literary, dramatic, musical and artistic works
- Cinematograph films
- Sound recordings [Subs. by Act 38 of 1994, s. 12, for "records"; But the Berne Convention has never given copyright protection to those who produced sound recordings.]
Fixing a work or fixation is to put a work in some material form. The Berne convention leaves the choice of whether or not fixation is essential for a work to qualify for copyright. Most countries require that a work be fixed in some tangible form.
In South Africa the following works, are eligible for copyright—
(a) literary works;
(b) musical works;
(c) artistic works;
(d) cinematograph films;
(e) sound recordings;
(f) broadcasts;
(f) programme-carrying signals;
(h) published editions;
(i) computer programs.
In Australia the following works are eligible for protection under copyright
· Written material
· Artistic works
· Musical works
· Dramatic works
· Computer Programs
· Compilations
· Films
· Sound recordings
4. What requirements must resource meet for copyright to apply?
What requirements must resource meet for copyright to apply? (Aslam)
In South Africa the following requirements must be met:
-
The work must be original
-
The work must be written down, recorded, represented in digital data or signals or otherwise reduced to a material form.
-
In the case of a broadcast, it has been broadcast and, in the case of a programme carrying signal, it has been transmitted by a satellite.
-
The work must not infringe the copyright in some other work
5. What about the rights of authors? Can someone sell the right to be known as the author? What right does the author have over how others who get copyright over her work can change it?
(Vanessa)
The author or creator has certain economic rights over their works, that is the right to copy, publish, broadcast, digitise, and if applicable perform their works. The author or creator also gets certain moral rights to their works, that is the right of attribution, a right not to be falsly attributed, and a right of integrity.
Someone who owns the economic rights in their work (initially the author or creator) has the right to "sell" the economic rights in their works, a complex series of options may have occurred when Zanele signed the agreement with Unique International Journal of Development to have her article published in the journal. In the past, Journals quite often required a complete assignment (or selling of all economic rights) to their Journal, leaving the author with little economic rights. Today these options vary considerably. The case study implies that Zanele has probably assigned the copyright to the Journal, completely. While Zanele has limited options regarding the copying of the work, there is still the moral rights to the work. Zanele usually retains the moral rights to the work, this will enable Zanele to manage how others who get copyright over her work use her work. That is the Journal must attribute Zanele, and they cannot change the work in any way that may subject the work to derogatory treatment, that is, prejudicial to the authors honour or reputation.
In Australia, Zanele would also be able to access the statutory licence, that the University would have signed with the collecting society (Copyright Agency Limited), this enables Zanele to include an article from a journal in her readings, hence her own article. Although this does come at a cost to the University through a payment scheme.
6. What is the public domain? When does something enter the public domain? Are there some works that automatically enter the public domain?
What is the public domain? When does something enter the public domain? Are there some works that automatically enter the public domain?
The public domain is a grouping of intellectual works that are not owned or controlled by anyone but are rather public property and free for use by the public. A work enters the publiuc domain when the copyright period mandated by law, expires. This is typically either after life plus 50 years or 70 years [60 years in India], depending on the jurisdiction. A work also enters the public domain when someone chooses to relinquish their copyright and put the work in the public domain.
Comments (1)
delia.browne@det.nsw.edu.au said
at 4:58 am on Sep 14, 2009
Hello
Please let me know if you have any questions. My time zone is Sydney Australia UTC/GMT + 10 hours
Delia Browne
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