Fair Dealing In Online Education In The Post Pandemic World

Introduction

We have witnessed a revolution in digital technology and its impact on every part of our lives during the last decade. Knowledge transmission is one of the key subjects that digitization has changed. With the advent of digital technologies, teaching methods and educational accessibility have drastically changed. However, it wasn’t until the Covid-19 pandemic in 2020 that the magnitude and importance of this change became clear. This historic shift also had an impact on another sector that few could have predicted at the time, namely the intellectual property rights of authors, professors, and others.

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Professors had to start distributing study and research materials through online platforms as teaching moved online, including in many cases, their recorded lectures, which constitute their intellectual labour and over which they hold copyright. Similarly, during the lockdown, many digital libraries around the world, including the World Digital Library, which is supported by UNESCO, and the National Digital Library, which is supported by the Ministry of Education in India, provided free access to their academic books, papers, and other materials to students and other interested individuals around the world.Despite the fact that schools and universities have reopened and offline lectures would continue, there is no escaping the fact that learning today is inextricably linked to digital potentiality. Online education has clearly demonstrated to be useful in several areas, such as its ability to overcome geographical and resource-based constraints. But the challenge and threat it posed to copyright owners in India and overseas was exponential. In this situation, it’s critical to conduct a cost-benefit analysis and to ensure that each party’s rights are protected in some way, if not entirely. This can be done through exceptions to the copyright law such as the ‘fair use’ concept.

Fair Dealing: Exception Under The Copyright Act 1957

Fair dealing was implemented in India in 1914 as a result of the UK Copyright Act, 1911, which stated that using copyright for “any fair dealing with any work for the purpose of private study, research, criticism, review, or newspaper summary” is not an infringement. Since then, three changes to the current Copyright Act 1957 have been enacted, viz., expanding the scope to cover literary, dramatic, and artistic work, as well as private activity, including research. Infringement of a work is exempted under Section 52 of the Copyright Act, 1957 if it is done for the purpose of “research, criticism, or evaluation”. This could be for the purpose of using and/or reproducing literary, theatrical, musical, or artistic work.

Section 52 (1) (i) of the Copyright Act 1957 specifies that the copyright will not be infringed if it is for any of the three uses as mentioned herein below:
by any teacher or pupil in the course of instruction;
as part of the question to be answered in an examination; and
in answers to such questions.

The problem arises in applying Section 52(1)(i) to the current situation, in which the medium of instruction has switched from the classroom to virtual meeting rooms; the case makes it obvious that the same would apply to online instruction as well. The logic behind this is that just the method of education has changed, not the content, and that online classes are simply a substitute for traditional classroom instruction. In the case of transformative work, the Court has concluded that it is within the scope of fair dealing.

Moreover, anti-circumvention along with fair dealing can be used to prevent illicit use of copyrighted material. The proliferation of internet resources has increased the risk of copyright infringement, including piracy and theft. This can be accomplished by the application of technologies such as reverse engineering. The Technological Protection Measure and the Rights Management Information are the two most often utilised Digital Rights Management. While the protection of information available on the internet is critical, the law may have an impact on the fair use of such information.

The World Intellectual Property Organization has incorporated anti-circumvention regulations into the WIPO Treaty, as a result of which legislation has been implemented in nations such as the United Kingdom and the United States, followed by India. While countries such as the United States and the European Union have resorted to strict liability for violations of circumvention provisions, relying on knowledge to establish whether or not a person should be held accountable. India, on the other hand, uses the intention concept to punish users who infringe on the copyright of others. As a result, under Section 65A of the Copyright Act 1957, both circumvention and intention must be proven, resulting in the non-prosecution of innocent users who are making fair use of the material.

According to the IP Watchdog list from 2009 to 2012, India is unquestionably a pro-consumer copyright jurisdiction. In India, the anti-circumvention law was enacted in 2012. Section 65A establishes anti-circumvention regulations based on the usage of TPM. However, the growing usage of TPMs has caused worries among users by placing the rights of copyright owners above their own. The insertion of Section 65A also presents the issue of how to keep the fair use requirements and anti-circumvention provisions in the online medium in sync.
Section 51 uses are punishable under Section 65A, implying that fair use exceptions under Section 52 also apply to circumvention. However, there are no precise criteria for applying the fair use provision to the anti-circumvention legislation in this section. In the digital arena, the Copyright Act 1957 makes no explicit criteria or requirements for striking a balance between fair usage and economic rights. Nonetheless, the provision was enacted with the socio-economic condition of persons in the country in mind who might have access to the resources in mind.

Furthermore, just exempting fair use under Section 52 from the criminal penalty imposed by Section 65A is not enough.

Determining Copyright In Digital Libraries And Online Classes

Students and researchers at the undergraduate and graduate levels rely on a large number of course texts. This does not just apply to standard course material used in courses, but also to materials used for projects, research, and other purposes. Many students find a significant number of course readings to be too expensive, especially when just a small portion of a course book is used. The students consult a variety of various books. Since the epidemic, students have been unable to use college libraries or photocopy, copyrighted content can be shared online in the form of PDFs by teachers or institutions, which fits under the broad reach of Section 52(1)(j). Additionally, a number of open-access repositories, such as digital libraries, have increased their breadth and accessibility. Let’s now look at how copyright is determined in online classes and digital library:

Online Classes

When looking at the fair use rules of Section 52 of the Copyright Act 1957, it is evident that there is no mention of “online classes” as such. The Courts’ intention, as demonstrated in the DU Photocopying case, is to encourage and aid these fair use clauses in effectively assisting students in getting and assimilating knowledge necessary to attain their academic goals. Any content reproduced for educational purposes, in the course of teaching, or in an educational institution may not be considered an infringement, according to Sections 52(1)(h), 52(1)(i) and 52(1)(j). It further states that, notwithstanding the lack of copyright protection, a collection of the work published with the legitimate goal of teaching will not be in violation of the law. The phrase “in the course of instruction” has a broad meaning in India, implying that the exclusions apply to both classroom and online training.

Digital Libraries

The pertinent sections when it comes to libraries and collection of copyrighted work are Section 52 (1) (n) and (o).Under these exceptions, non-commercial public libraries are allowed to store electronic copies of works for preservation if they also hold a non-digital or hard copy of the work. Non-commercial public libraries can only produce three copies of books, as long as they are for the library’s use and the book is not for sale in India. The current position of the Copyright Act in India is ambiguous on the permissibility allowed to libraries to maintain and make accessible digital copies of copyrighted books and material of writers, based on these provisions.

Balancing the Rights of Creators and Consumers of Copyrighted Work

The current situation necessitates striking a compromise between the owner’s private copyright and the public’s right to information and access to knowledge. The ‘fair use’ provision of the Copyright Act 1957 is plainly quite specific. It is not as open-ended as the fair dealing rules in the United States, which allow for a lot of Court interpretation when it comes to exceptions to copyrighted works. In the case of online teaching, earlier decisions and interpretations of the relevant clauses have indicated that it is an acceptable exception to copyright under the fair use doctrine. However, the scope of the fair use exception that applies to digital libraries, whether commercial or not, has yet to be determined. In this context, notable advancements have occurred, particularly during the lockdown last year, when two cases relating to the scope of this issue were submitted.
In India, Courts decide copyright infringement cases on a case-by-case basis, striking a reasonable balance between copyright owners’ economic interests and users who should be included by the fair use exception. When choosing where to establish the limit on the use of fair use in the context of providing study material to students, Courts normally make their decisions after considering the facts and circumstances of the case. Depending on the details of the case, various courts have struck a different chord than the DU Photocopying case. The following are two examples of this.

In Neetu Singh v Rajiv Saumitra, the plaintiff sought a permanent injunction prohibiting the defendants from reproducing, printing, circulating, selling, or offering for sale one of the plaintiff’s copyrighted literary works, which were illegally published. Because the defendant was selling books to students, the Court had to decide whether such copying would be considered ‘fair use’ or not. The Court finally ruled that the defendant’s act of selling books to pupils after copying the study material constituted “commercial operation” and so could not be considered “fair use” after distinguishing between works for course of instruction and works for commercial purposes.

In light of these judgments, it is worth considering how the Courts might strike a reasonable balance between the rights of various parties in the area of accessibility and fair use. The rights of parties can only be guaranteed by establishing workable long-term solutions. The following are some of the possible answers:

The Internet Archive’s technique, when viewed through the lens of copyright, can be beneficial in addressing the issue at hand. The Internet Archive has started a scheme called controlled digital lending. Multiple users can simultaneously borrow a copyrighted work for a limited time period using this strategy. The DU Photocopying case’s that widened the scope of fair dealing for educational purposes and the exhaustion of the first sale doctrine serve as excellent arguments for the Internet Archive’s Controlled Digital Lending system, which can be used by educational institutions and libraries in India.

Apps like YouTube provide Fair Use Protection when it comes to sites for uploading and disseminating lectures digitally. Copyright infringement notices, on the other hand, can be filed by anybody. There is a good risk this will discourage educators from adopting the platform, which is perhaps more user-friendly than others. While obtaining authorization from the copyright owner or seeking licence is an option, both are time-consuming processes that may not be viable at this time.

Some strategies to get over this barrier include uploading lecture videos designated as “unlisted” so that they don’t appear on YouTube’s public sites, or swapping copyrighted material with open access materials for recorded lectures.
Indian legislators can also take inspiration from the United States, where an unique law called “TEACH” was developed specifically for online and remote education. Quantifying materials and allowing only genuine copies to be used, as well as limiting the number of copyrighted items that can be utilised, are all part of the legislation. In the case of literary works, the legislation prohibits the exhibition or distribution of vast numbers of materials in a classroom. Enacting such a law would reduce the likelihood of future cases like the photocopy case.

Conclusions

A copyright protects the interests of the persons who created it, with the exception of fair use, which allows anyone to use it for a specific purpose while ensuring that such usage does not infringe on the copyright owners’ rights. The fair use exception gives students and researchers hope that they will be able to access materials without bothering about being sued for copyright infringement by the owner. Without any demurs, it should fall within the exception to fair use if they are utilising it for private or personal purposes without obtaining any economic profit from it.

While it is imperative that online education be made more accessible, it is also vital to encourage publisher innovation by meeting their financial needs. The fair use exception may prevent copyright holders from making their work publicly available. A possible approach to this would be to make an exception for personal use and encourage universities and educational institutions to obtain copyright licences from the owners. The DU Photocopying case’s view that fair use would cover even instructors’ work within the exception if it is for educational purposes is a bit too much as it does not give enough to the teachers’ intellectual labour.

Even as on date, no legal provisions cover digital libraries, and mechanisms such as “controlled digital lending” have not been dealt with by the Courts. Therefore, concerns are often raised regarding the legality of access to digital libraries in India. It is critical to determine how Indian copyright law could adapt to new technology and how existing rights can work in a digital environment as part of ensuring inclusion and access to resources and services.

To address the aforementioned difficulties, strong and extensive legislative changes, as well as stringent regulation from the relevant institutions, would be required, according to all reports. It has become clear that education’s future will be shaped by digitization. The reliance on online studies will only grow in the future. As a result, determining the rights of copyright holders of academic works and students, as well as doing justice to both, is critical. In light of fair use exceptions, a uniform policy for the operation of digital libraries or open access repositories is required.

Therefore, the hypothesis with which we started stands proved but we still require some comprehensive legislative measures to settle the dust looming around online classes and digital libraries insofar as copyright is concerned once and for all.

Author : Prashant Sharma & Abhishek Bisht, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD. 

Bibliography

I. ARTICLES
1. Bharadwaj, Pragalbh ‘A Critical Appraisal of the ‘Fair dealing’ Doctrine Under Copyright Law in India: Highlighting the Imperative Need for Reform’ (2016) 2 HNLU SBJ 39.
2. Krishnakumar Tarun and Saha Kaustav, ‘India’s New Copyright Law: The Good, The Bad and the DRM’ Journal of Intellectual Property Law & Practice (2013) Volume 8, Issue 1
3. Swaraj, Barooah Paul ‘Disruptive (Technology) Law? Examining TPMs and Anti- Circumvention Laws in the Copyright (Amendment) Act, 2012’ (2012) 5 NUJS L Rev 583
II. BOOKS
1. Chawla, Alka, Copyright and Related Rights: National and International Perspectives (Macmillan India Ltd., Delhi, 2007)
2. Menon, Shailaja, Protection of IP in Cyber Space (Author Press, Delhi, 2003)
III. WEBSITES
1. ‘Copyright as a Means of Intervening’, Centre for Intellectual Property and Information Law (2015) University of Cambridge
2. ‘National Digital Library opens up its digital contents; builds Covid-19 research repository’ (2020) Hindustan Times
3. ‘World Digital Library offers access to thousands of books’ (2020) United Nations
4. Hermann Rachel Marusak ‘IP Experts Focus On 3-Step Test In Copyright, Discuss Way Forward’ Intellectual Property Watch (2011)
5. Murugesan, Namrata ‘CovEducation, Copyright and fair use in India’ SpicyIP (2020)