VIRTUAL TEACHING: A COPYRIGHT INFRINGEMENT OR FAIR USE

Profile of the Author: Bhakti Vakil is a 5th year B.A. LL.B. (Hons.) student at Prestige Institute of Management and Research, Indore. Her areas of interest include Civil Law, Corporate Law, Constitutional Law and Intellectual Property Law.

INTRODUCTION

After the lockdown for COVID Pandemic, we have adapted to a new world of ‘6 feet distance’. The consequences of the pandemic has completely turned our everyday lives upside down. Social distancing, work from home and online classes are the new norms. Educational institutions across the globe have shifted to digital learning platforms. Online education involves distributing copyright materials online. In India, the law of copyright protects expression of ideas rather than an idea itself. Copyright protection is conferred on literary, dramatic, artistic, musical cinematographic films and sound recordings[1]. Copyright denotes to "bundle of exclusive rights" conferred upon the owner of copyright by virtue of Section 14 of the Act. Such rights vests in the owner of the copyright i.e. the creator of the work and such rights can be exercised only by the owner or by a third party who has been granted a license by the owner of the copyright. The law contains provision for fair use of copyrighted materials but the question is whether this apply to digital interface as well.

FAIR USE

As the law mentioned that the author has an exclusive right overexploitation of his original work, the law of copyright permits certain uses without prior permission of the owner. These are known as fair use or fair dealing provisions. In a general sense, it refers to permitting the use of the literary work of the author without amounting to infringement. This is considered to be an exemption under copyright law. It heeds the “Doctrine of Equity” which allows the usage and reproduction of the copyrighted work and its distribution which otherwise would have amounted to infringement. This concept is recognized under Article 13 of the TRIPS agreement and under Indian law, it is recognized in Section 52[2]. The section allows for the permissible use of work without any authorization by the owner. Section 52(1) (h) to section 52(1) (j) deals with the exemption for educational purposes. In the landmark judgment of DU Photocopy Case[3] ; the court in that held, that the four-factor test doesn't apply under the Indian law. The only determination where it has been a fair use or not will be dependent on the wordings of the provisions and the limitations specified. The court while explaining used the phrase "in the course of instruction" by which it meant that any activity which fell under the ambit of any educational institution will not come under infringement. Emphasis was also laid that this exemption is not only limited to the traditional classroom method but also includes the scope of online teaching or other platforms outside of the classroom.

VIRTUAL TEACHING AND COPYRIGHT

In India, educational materials are primarily used by the universities and education institutions in terms of translation, reproduction, communication, etc. in order to provide the students' best of the available knowledge in the most refined and categorical manner and therefore, the Doctrine of Fair Use extends protection to educational institutions under Copyright Act, 1957[4].

In times of COVID-19, the main issues which need to be discussed are: can protection be claimed by the university libraries for the infringement of copyright under the provisions of fair dealing (if the copies uploaded online are also available in their physical form)? The section 52(1) (h) 10, Copyright Amendment Act, do acknowledge and permits the use of any "non-commercial public library" for storing the digital copies of the resources and books which are otherwise available in the physical form in libraries to preserve them. The reason there is a lot of confusion regarding the concept of digital libraries is because of the lack of precedents and ambiguity present in the provisions. This widens the scope of interpretations.

Another concern regarding online classes is does a video recording of classes that use copyrighted material have the same protection as teaching in physical classes? As in India, given the connectivity issues live classes turn out to be fairly impracticable. Therefore, educators are uploading their videos on platforms like YouTube, where they can be accessed at any time. According to Section 3 of the Copyright Act, ‘publication’ means making 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. So, uploading of videos might attract a copyright claim form the owners of the material used are in excess and the owner is at some kind of loss. But the extent can only be determined by the courts, options like seeking permission or licensee are always permissible.

Further Section 52(1)(i) does not expressly contemplate online education, the scope is not limited to classroom teaching but the entire process or Programme of education in a semester, which would include online education as well. So, virtual teaching is also included under the educational exemption is still unanswered but as long as the reproduction is shown to be necessary for educational instruction, it would be covered under the exemption, the medium of use being no bar.

CONCLUSION

With the countries facing lower economy because of COVID-19, it is doubtful that the issues of copyright law are going to be a concern. The move to online education depicts that is here to stay, at least for the immediate future. The legislature must create a provision that ensures the continuity of education isn’t hampered and for this, they need to balance the educational fair use exceptions and the rights of copyright owners. With the increasing scope of information and technology in the online education system, there is an urgent need for the authorities to look into such matters and come up with some provisions which provide an equal stage for both the educators and the copyright owners. In May 2020, the Central government launched 12 DTH channels for school children. As is evident, education as an institution is going to change its ways, the current law is inadequate for digital learning. India needs to amend its laws to ensure widest possible access to education material.

FREQUENTLY ASKED QUESTIONS (FAQs)

• Does the law made for the protection of copyright owners need to be altered or the statute need to revise the whole procedure leading to copyright infringement?

The legislature needs to find the balance between fair use and the right of owners. The provision for fair dealing is vague when it comes to educational purposes. Due to the enhancement of technology, it is now easy to access other’s created content and hence the legislature need to widen their perspective and must make amendments.

[1] Treaty on the prohibition of nuclear weapons, United Nations https://www.un.org/disarmament/wmd/nuclear/tpnw/ (24-10-2020,7:26 PM)

[2] Copyright Act, S. 52

[3] University of Oxford V. Rameshwari Photocopy Services (2016) 160 DRJ (SN) 678

[4] Amlegals Associates, ‘Virtual Teaching and Copyright: How fair is fair use?’ (19 June 2020) https://www.mondaq.com/india/copyright/955608/virtual-teaching-and-copyright-how-fair-is-fair-use#:~:text=Further%20Section%2052(1)(amount%20to%20infringement%20of%20Copyright.

The author undertakes that the work submitted is an original creation of the author. The author has not previously submitted the article for the purpose of publication. Any similarity with a previously published content is not intentional. The author shall be personally liable for any infringement of intellectual property of any person, organization, government or institution.