Copyright Law for e-Learning Authors

JISC Legal - 1 June 2005.

Copyright is the most prolific intellectual property right, arising automatically in respect of any qualifying work. Almost every element of an e-learning system, including educational materials and the systems underpinning virtual learning environments (VLEs), will attract some element of copyright. An understanding of what constitutes infringement, what defences are available and how to licence copyright is fundamental to almost everyone working with an online learning environment. Copyright Basics Copyright protects the expression of an idea, not the underlying idea itself. Such expressions arise in artistic works, including written works, recordings and images. The UK law relating to copyright is set out in the Copyright, Designs and Patents Act 1988 (the CDPA). For a work to attract copyright protection the CDPA requires that it must be original. However, this does not mean it must be especially imaginative, simply that its creation must involve some effort and it cannot just be a copy of another work. Under the CDPA, the first owner of copyright in a work is the individual who creates the work. However, an important exception to this rule is where the work is created by an employee in the course of their employment. In those circumstances the employer will be the first owner. The copyright in a work commissioned from a contractor initially vests in the contractor, although the contract may provide for a transfer of ownership to the commissioner. Copyright protection for literary works generally lasts for seventy years from the death of the author. Copyright Infringement The owner of copyright in a work can take legal action where, without consent, the work is copied, performed or shown in public or is communicated to the public (including making it available in a VLE) or an adaptation of the work is made. The CDPA also allows copyright owners to take action for less direct activities, for example if another party, without consent, deals with a work which it knows or has reason to believe infringes the rights of the copyright owner. The most common infringement of copyright is unauthorised copying. Copying is defined as reproducing the work in a material form, including storing the work in any medium. For unauthorised copying to occur, it must be shown that there was access to the work copied (although where a work is readily available,

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Copyright Law for e-Learning Authors

courts may assume access without actual proof). Also bear in mind that copyright infringement only occurs where a substantial part of a work is copied. What constitutes a substantial part is assessed by the quality of the part of the work copied, not the quantity - so an important but short extract of a book could still be substantial. In an e-learning environment there may be numerous layers of overlapping copyrights, music, text, software architecture, source code and also in the completed e-learning environment database as a whole. In order to use these component parts the copyright must be cleared which means that it is necessary to ensure that the rights of each of the copyright owners is not infringed. Defences and Exceptions The CDPA provides for fair dealing defences, which allow individuals to make single copy extracts from various media, including digital format, for research or private study. Exceptions also exist for the making of copies of sound recordings, films or broadcasts for the purposes of instruction in film making/media courses. The volume of material able to be copied varies, and purposes of use should not be assumed without verification. The Copyright and Related Rights Regulations 2003 amended the fair dealing defences, generally stating that copying under the defences is only permissible with sufficient acknowledgement and for noncommercial purposes. There is no uniform answer as to what extent online learning environments created by FE and HE will be considered non-commercial for the purposes of the CDPA and if your institution is likely to consider selling any part of its online learning materials or allowing access to the VLE course for a fee then clearly the fair dealing defences should not be relied upon by authors or developers of the elearning systems. The CDPA provides a number of specific educational exceptions to copyright infringement (s.32 to s.36 of the CDPA). Exceptions include making reprographic copies (limited to 1% per quarter from any work); performing or showing work for educational purposes (the audience must only include staff and students); and including short passages from published literary or dramatic works in an anthology. Some of these exceptions are superseded by sector blanket licences, and in any event, it remains unsettled to what extent any of these exceptions will extend to use of works in VLEs. There is also an exception for the purpose of examinations which could be delivered via a VLE. Ways in which copyright material can be transferred Assignment (assignation in Scotland) involves a complete transfer of all rights in the works to a third party.

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Copyright Law for e-Learning Authors

Ad hoc licences can be entered into between an owner of copyright works and an educational establishment seeking to use the works.. Collective Licensing is the administration of licensing schemes by organisations which own or control a body of copyright material (such as a major publisher) or take an assignment of copyright (such as Performance Right Society) or operate as an agent for the copyright owners (such as Mechanical Copyright Protection Society). Blanket Licensing is the use of the entire repertoire, which contrasts with collective licensing which enables an organisation to license the use of copyrights as an entire repertoire as well as on a work-by-work basis. Education In education copying is essential for the purposes of preparing and producing teaching and learning materials for learners. e-Learning authors need to consider the following questions when taking third party materials: Does the copying fall within the terms and regulations of an agency licence (e.g. Copyright Licensing Agency, Newspaper Licensing Agency) to which your organisation subscribes? Do you have written permission from the owner or his/her representative to copy the work? Do you have an exception or a defence under the CDPA to copy the work?

If the answer to all three of these question is no then you are likely to be infringing copyright which may be actionable by the copyright holder. Points to remember for e-learning authors Rights to use other peoples work in your VLE may arise in different ways. If you or other staff members author materials then as employees of the college or university copyright belongs to your institution so you can use these materials. It is, of course, possible to get a copyright owners written permission to use their work. This is essentially a licence to the use of the materials in the learning environment.

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Copyright Law for e-Learning Authors

There are also blanket scanning licences available to the sector which permit the conversion to electronic format of existing paper based materials. There are electronic resources which are copyright-free or copyright cleared for use by UK FE and HE institutions, such as, for example, JISC Collections. In addition fair dealing and legal defences are available to permit what would otherwise be copyright infringement. A familiarisation with the exceptions available to the work of education and with the defence of fair dealing is essential for anyone who is involved with authoring e-learning materials. These include: fair dealing for non-commercial research or private study fair dealing for criticism or review examination and sufficient acknowledgement of the copyright owner must be provided.

____________________ The paper was produced and published in association with Pinsent Masons - http://www.pinsentmasons.com/ for the JISC Legal - Legal Aspects of Online Learning Environments Workshop/Conference - held at the University of Warwick on 1-2 June 2005. This paper contains an overview of some of the key legal issues to be considered in relation to the topic. For more detailed information see www.out-law.com. This paper does not constitute legal advice. Written by Pinsent Masons http://www.pinsentmasons.com/ Contact: jon.fell@pinsentmasons.com or gavin.mcginty@pinsentmasons.com JISC Legal - 1 June 2005. Tel: 0141 548 4939; Email: info@jisclegal.ac.uk ; Web: www.jisclegal.ac.uk

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