ARCHIVED — Copyright and the Educational Use of Internet Content,Working Group’s Report

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2. Digital Challenges

There are various emerging copyright issues that are related to the digital environment. As new technologies make it easier for students and teachers to create, copy and share artwork, software, music, video, photographs and literature, copyright is becoming increasingly complex. Users of digital technologies are using new and more effective ways to access, create and communicate copyright material over the Internet in digital formats. New technologies provide new opportunities and access to new markets and also enable the creation of perfect copies that can be instantly transmitted around the world, making it increasingly difficult for creators to control and manage the use of their works and be compensated for them, especially when technology is making downloading, e-mailing and uploading easier.

Educational Uses

In an attempt to obtain a better understanding of the rights that need to be cleared by the educational sector, a list of possible educational uses of material available on the Internet was prepared detailing activities ranging from passive uses such as viewing, browsing and listening to active uses such as downloading, reproduction and printing of works, and cutting and pasting of material (Annex B). Other potential educational uses include presentations by teachers and students (with target audiences located in the same classroom, in another classroom or in a different location) and the uploading of material on either an Intranet or Internet site, with both secure and public access.

One particular example, which encompasses a variety of rights reserved for rights holders, is that of high school students who were asked by teachers to prepare a multimedia piece on their favourite musician. They were encouraged to use content such as pictures and text not only from the musician's official Web site, but also from anywhere on the Internet. The students also purchased the musician's latest album and converted the files into the popular MP3 format for inclusion in a presentation that was shown to the entire school. Along with several different categories of works, several rights are involved in this example, such as the right of reproduction, public performance, and communication to the public by telecommunication. The moral rights associated with the works are also brought into question. In order not to be infringing, students would have to assess which material would require the rights holders' consent and clear the necessary rights prior to use.

Business Models

When and how to seek the consent of the rights holder can be quite complex. The nature of Internet is such that it allows access to a variety of sites, some of a commercial nature and others non-commercial. In the case of a commercial Web site, there exists a variety of business models that may or may not allow the use of the works located on that Web site. Although some may make the distinction between “publicly” or “freely” available material and material for a “fee” on the notion that certain Web sites expect revenue for access to and use of content, a study prepared for the Working Group by Catherine Campbell, entitled A Report on Publicly Available Material on the Internet: An Examination of the State of the Internet (the Campbell Report), reveals that this distinction is far from clear. Some online business models allow free access to copyright material to lure people to the site for advertising purposes, with revenues being generated by the sale of advertisement or by the sale of services or products. Other sites contain content that can be freely seen for marketing purposes, but not freely used. While Web sites may be seen as “free,” they are not necessarily free for any type of use. The discussion of “free vs. fee” for use of copyright material is one that is truly unique to the digital environment. Generally, there could be said to be four categories of Web sites:

1. those where there is a clear expectation of payment;
2. those where there is clearly no expectation of payment;
3. those where it is unclear what are the conditions of use; and
4. those where there are clear conditions of use, but not necessarily an expectation of payment.

Rights Clearance

In the traditional, non-Internet world, copyright is either administered by the rights holders themselves – typically on a case-by-case, work-by-work basis (transactional licensing) – or by collective societies. Collective societies have played a significant role in the use of material as they administer legal rights under the Copyright Act on behalf of their members. Specifically, collectives provide copyright holders with a centralized mechanism for authorizing, controlling and receiving compensation for use of their works, whether through blanket licenses that authorize use of the entire repertoire of works under their administration, or through transactional licences. Therefore, collectives also provide users of copyright material with a simplified process to clear rights. Users seeking permission to use certain protected works sometimes must search out rights holders individually; however, some collectives assume this responsibility.

Blanket licensing for educational institutions has provided a practical solution for educational users and rights holders in the analog world. In the case of blanket licensing schemes, rights holders are compensated on the basis of sampling of educational uses of works in collectives' repertoires or on the basis of a negotiated fee per user between rights holders and licensees.

The Internet has complicated the situation. Considering that Web site content is constantly changing, rapid rights clearance of digital material is increasingly necessary in the educational context to maximize the timely and legitimate use of copyright material available online. However, collectives whose repertoire consists mainly of works in analog formats are finding the extension of blanket licensing to Web sites challenging.

Thus far, transactional licensing appears to be the only means of using Internet-based works in an educational setting without infringing copyright. However, although it was never explicitly discussed, there appeared to be a general understanding that, for the most part, transactional licensing may not be an effective approach, as the use of Internet-based material for educational purposes expands.

Stakeholders have called for copyright policy to be clarified for digital technologies. Rights holders are looking for confidence in the protection of their works in an online environment. At the same time, educators are calling for clear and fair rules of access and use for content available on the Internet.

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