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

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3. Overview of the International Context

The International Framework

The impact of digital technologies is being addressed in the international copyright framework. Canada should take into account other nations' best practices and must continue to respect its obligations under international copyright and related rights treaties. These include the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention). Canada has also joined trade agreements that contain copyright-related obligations, namely the North American Free Trade Agreement (NAFTA) and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). In 1997, Canada signed, but has not yet ratified, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), which were concluded under the auspices of the World Intellectual Property Organization (WIPO). By signing the treaties, Canada indicated to the world that it would abstain from legislative initiatives that would be contrary to the spirit of the treaties. Ratification would bind Canada to the specific obligations in these treaties and would require amendments to the Copyright Act.

The Berne Convention established the recognition of copyright between Member States. In particular, it established minimum levels of copyright protection. Copyright under the Berne Convention is automatic. Neither registration nor the inclusion of a copyright notice is required. A key element of Berne Convention is the three-step test. The test, which was first applied to the exclusive right of reproduction by Article 9(2) of the Berne Convention in 1967, is a set of constraints on the limitations and exceptions to exclusive rights that members must provide in their national copyright laws. The test has been incorporated and extended into numerous international agreements such as the TRIPs Agreement, the WIPO Copyright Treaty (WCT), and the WIPO Performances and Phonograms Treaty (WPPT). Perhaps the most important version of the test is articulated in Article 13 of TRIPs:

Any legislative solution to limiting exclusive rights should satisfy the three-step test. The 2000 decision by the WTO Panel on US – Section 110(5) of the US Copyright Act (WT/DS160) provides some light on the scope of that test. Also, WIPO recently published a report prepared by Sam Ricketson entitled WIPO Study on Limitations and Exceptions on Copyright and Related Rights in the Digital Environment (SCCR/9/7).

The United States Approach

In the United States, legislators have provided some limitations on a copyright owner's exclusive rights when it comes to educational institutions. For example, in 2002, Congress passed the Technology, Education and Copyright Harmonization Act (TEACH Act) in order to facilitate the growth and development of digital distance education.

However, the doctrine of fair use is a cornerstone for educational use of copyright material. Section 107 of the U.S. Copyright Act of 1976 provides that:

“fair use of a copyrighted work includes use for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright. In determining whether the use is fair, the following factors shall be considered:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.”

The U.S. Supreme Court has made clear that there can be no “bright line” test for fair use.² Infringements are to be assessed on a case-by-case basis. Given the lack of such bright lines, U.S. rights holders and the user community have developed voluntary guidelines for copying by and for teachers in the classroom context, the copying of music for educational purposes, the copying of relatively recent journal articles by one library for a patron on another, and the off-air videotaping of educational broadcast material.³ Although the guidelines do not have the force of law, courts have relied on them when interpreting the scope of the fair use provision.

As the Internet gained importance, a Conference on Fair Use (CONFU) was convened by the U.S. Working Group on Intellectual Property Rights of the Information Infrastructure Task Force in 1994. The purpose of this conference was to bring together U.S. copyright owners and users to discuss fair use issues with respect to digital copyright material and to develop guidelines that would clarify fair use in an educational context.

Several guidelines were proposed including those for digital images, distance learning, and multimedia. However, at the end of the conference, they were not endorsed by the majority of participants. Some have expressed their opposition to the guidelines, arguing that they were either too narrow or too over-reaching. The proposal on multimedia did garner the support of the Motion Picture Association of America, the Recording Industry Association of America, McGraw-Hill and the Consortium of College and University Media Centers, among others.

The multimedia guidelines suggest which uses of lawfully acquired copyright works by educators and students in the creation of multimedia projects as part of an educational institution's learning activities should be considered as fair use. For instance, students and teachers may incorporate portions of lawfully acquired works when producing their own educational multimedia projects, perform and display them in the course for which they were created and may use them in their own portfolios as examples of their academic work for later personal uses such as job and graduate school interviews. The guidelines also provide limitations with respect to time, allowable portion of works that may be used and distribution of the multimedia work.

Despite the lack of universal adherence to the guidelines, many educational institutions have adopted the multimedia guidelines as their fair use policy, though they have yet to be tested by the courts.

The Australian Approach

In Australia, the Digital Agenda Amendment Act, which came into force on March 4, 2001, contains a compulsory licensing regime for the reproduction of works in electronic form by educational institutions and libraries. The Copyright Agency Limited (CAL) is the collecting society approved by the Attorney General to administer this statutory licence. As a result of this amendment, the Australian Act provides two compulsory educational licence schemes for the copying and communication of limited portions of works by educational institutions: a hardcopy licence and an Electronic Reproduction and Communication licence.

The hardcopy licence, as the name implies, applies to copies made from hardcopy documents; however, this now includes both paper-to-paper copies and paper to electronic copies. Within the copying limits, reproductions such as scanning from paper and the re-keying paper copies and storing them in a digital medium are within the copying scheme.

The Electronic Reproduction and Communication licence covers all works that are in an original electronic form, reproduction in an electronic form (e.g. digital-to-digital) and communication of copies in electronic form (e.g. posting copies on an Intranet site). The licence covers literary, dramatic, artistic and musical works; however, the use must be for the educational purposes of the institution. Typical uses of this licence would include digital copies from digital sources such as Web pages, CD-ROMs, and electronic text and graphics. Typical methods of communication would include e-mailing, making available on an Internet or Intranet site, or narrowcasting, i.e. video conferencing.

The European Union Approach

The European Community Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society (the EU Copyright Directive) entered into force on June 22, 2001. In response to the challenges of the Internet, e-commerce, and digital technology in general, the Directive harmonizes rights in certain key areas. It also deals with exceptions to these rights and legal protection for technological aspects of rights management systems. Article 13 required the Directive to be transposed into the national laws of EU Member States before December 22, 2002. There have been numerous delays in Member States in meeting this deadline and only a handful have done so (i.e. Denmark, Greece, Italy, Austria and the United Kingdom).

For example, in its implementation legislation, Denmark has enacted an extended licensing regime for the educational sector. While tariffs for digital use in universities and schools are still being determined, the tariff for teachers colleges has been set. These licences with collectives include activities such as photocopying, scanning, printing, storage, sending by e-mail, reproduction on a password-protected Intranet, and downloading. Copying is limited to a 20% maximum of a work or 30 pages, whichever is less.

European nations are also considering educational access in the context of Directive implementation. Information regarding European development in this area remains sketchy, as the situation is still evolving.

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² Campbell v. Acuff-Rose Music Inc., 510 U.S. 569, 577 (1994).

³ See http://www.copyright.gov/circs/circ21.pdf

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