ARCHIVED — Copyright and the Educational Use of Internet Content, Working Group’s Report
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7. Outstanding Issues
While the two proposals show some commonalities, there are several outstanding issues.
Approach to Copyright Reform
Members of the Working Group expressed three different views on how to best approach the issue of educational use. The proposals ranged from the status quo, to the creation of a legislative framework for the use of all copyright material found on the Internet, to a framework limited to the educational use of “publicly available” material on the Internet.
The rights holders’ proposal favours legislative amendments that would create a framework for the Internet as a whole, based on an extended licensing model that would reduce the liability of collectives and their licensed users. The fees associated with any licences could be determined by the parties to the agreement or by the Copyright Board.
On the other hand, members representing the educational sector are seeking legislative reform with specific amendments in the form of an educational exception to that portion of the Internet that is considered “publicly available.” In terms of those materials that are not “publicly available,” representatives of the educational sector agree that they are prepared to negotiate remuneration with the rights holders or collectives representing rights holders.
Finally, the representative from the music sector argued that legislative reform is not necessary. Rights holders and educational institutions could negotiate transactional licences that would allow the use of material available on the Internet in accordance with agreed-upon fees and terms and conditions.
Onus with respect to the Intent of the Author
As discussed above, the Campbell Report illustrates the complexity in determining the author’s intention as to permitted uses. Some sites may have a page on general terms and conditions, others have specific terms on every Web page or none at all. Some sites use TPMs requiring payment, while others utilize TPMs with no expectation of payment.
Representatives from the educational sector argue that authors are in the best position to express their intentions with respect to the use of their works. They indicate that rights holders who put their works on the Internet in the absence of clear restrictions on access and use have, in effect, made their works available for individual and educational access and use and given an implied licence. According to the education representatives, rights holders whose intent it is to prohibit educational use, except as specifically authorized, should be required to clearly signal that intent in order to effectively protect their material and prevent uninvited educational access and use.
For ease of use by the average grade 3 student, the representatives from the educational sector believe that it should be incumbent upon the author to state whether remuneration for use or consent is required for educational uses. In their opinion, unless there is a TPM or a continuously visible sign indicating that use for educational purposes is prohibited, the material should be considered as “publicly available” and therefore can be used by educational institutions and students.
Rights holders, on the other hand, feel that it would be excessively complex to try to express all terms of use on every Web site for each and every work. Except where a blanket licence has been obtained from the appropriate collective, the onus should be on educational institutions to enquire about the copyright holders’ intent and to request the necessary consent.
Expectation of Payment vs. Control over Works
Although the Working Group agrees that, where an expectation of payment exists, educational institutions would pay for the use of copyright material, the Group has diverging views as to how materials where remuneration is not expected can be used. Members of the educational sector argue that educational institutions and students should be allowed to freely use material where there is no expectation of payment. Rights holder groups, on the other hand, argue that the educational proposal can result in the loss of the rights holders’ ability to control their works. Users should not interpret the fact that a site does not specifically ask for remuneration as meaning that the owners consent to uses beyond browsing. Even if some authors provide material without an expectation of payment, they may still want to maintain control over the manner in which their material is used.
Who Decides How Much “Publicly Available” Materials Is Used for Educational Purposes?
Although the Working Group has recognized that there is free material on the Internet, the two proposals show that there are differences as to who can legitimately make the assessment. According to the educational community, the Copyright Act should assign a value of zero to “publicly available” material, by way of an exception. Then, educational institutions and collectives could jointly negotiate a licence for the use of “non-publicly available” materials.
The rights holders’ proposal suggests two approaches. One approach would be to legislatively assign to the Copyright Board the task of evaluating the amount of “publicly available” material when determining a tariff for the educational use of “non-publicly available” material. The other approach consists of allowing the parties to agree amongst themselves what ought to be considered as “publicly available” material, with that portion zero-rated, and negotiate a blanket licence accordingly.
Moral Rights
Some of the educational uses of material on the Internet, for example cut and paste activities, give rise to presumptions that the author’s moral rights have been infringed. This issue becomes more complex as technology allows students to lump different works together to create a multimedia work. Although moral rights issues were raised on several occasions during meetings, this issue warrants further consideration.
Scope of the Proposals
As Internet material can include various categories of works on a single Web page (e.g. a literary work combined with an artistic and musical work), the educational sector advocates legislative amendments that apply uniformly to all categories of works. Otherwise, the overhead associated with rights clearance remains an obstacle to the use of many materials. In this respect, as long as materials fit within their definition of “publicly available,” the educational exception would apply. The rights holders’ proposal, on the other hand, specifically excludes two categories of works, namely sound recordings and moving pictures.
