Report: CREATe researchers present on copyright exceptions for education and research at SCURL conference (Part 1)

On 18 June 2020, CREATe researchers Bartolomeo Meletti and Thomas Margoni presented at the SCURL online copyright conference. The online event – organised by Greg Walters (University of Glasgow) and chaired by Jeanette Castle (University of the West of Scotland) – brought together around 50 information professionals from the Scottish Confederation of University & Research Library (SCURL). This is the first of two reports, the second is available here.

Education – original illustration by Davide Bonazzi for CopyrightUser.org

The conference kicked off with a presentation by Chris Morrison (University of Kent) and Jane Secker (City, University of London) on the topic of copyright literacy in a time of crisis. Chris and Jane reported on the webinars on ‘copyright and online learning during the COVID-19 pandemic’ they have been running on a weekly basis since 20th March, and highlighted the important role played by communities such as LIS-Copyseek in helping academic librarians tackle copyright issues confidently.  

Following that, I delivered a presentation on Copyright and Creative Reuse, using CopyrightUser.org resources to explore copyright duration and copyright exceptions that enable the use of protected materials for educational purposes. In particular, focussing on Sections 32 and 34 of the Copyright, Designs and Patents Act 1988 (CDPA), two provisions which academics and HE staff can potentially rely on to use protected materials in online teaching.

Section 34 CDPA provides an exception to the public performance right which enables performing, playing or showing entire works before an audience of teachers and students for the purposes of instruction. While it is undisputed that s34 enables these uses in the classroom, it is less clear whether teachers can rely on it for similar educational activities online. Emily Hudson (King’s College London) and Paul Wragg (University of Leeds) – in their paper Proposals for Copyright Law and Education During the COVID-19 Pandemic – argue that online use is outside the scope of s34, as this would implicate the communication right whereas s34 only applies to the public performance right. However, even though screening a film ‘by electronic transmission’ may resemble an act of communication to the public, if the screening is at a set time and only available to a closed group of students, a different interpretation might suggest that the communication right would be infringed only if the closed group of students was considered the ‘public’. In any case, even under extensive interpretations, s34 would not cover a wide range of educational uses of films and other protected works, such as those that allow students to access the protected material from a place and at a time of their choice (e.g. via a VLE). For this kind of uses, educators can rely on Section 32 CDPA (illustration for instruction). The two main advantages offered by this exception compared to s34 are:

  • It provides an exception to all economic rights, including communication to the public.
  • It can’t be overridden by contract [s32(3)].

However, unlike s34, illustration for instruction depends on the notion of fair dealing, which is not defined in the statute but determined by courts on a case by case basis. The issue that illustration for instruction shares with other fair dealing exceptions which allow the creative reuse of protected works – such as quotation and caricature, parody or pastiche – is that they have been introduced in UK copyright law in 2014 only and have not been tested in UK courts yet. Therefore, their scope of application is uncertain. As the initiative conducted by the American University around the fair use doctrine has successfully shown, one way of trying to clarify the scope of application of these permitted acts is to capture existing community norms in the sector targeted by these provisions – such as education or documentary filmmaking – with a view to defining a notion of ‘fairness’ that reflects those norms.

CREATe – in collaboration with Learning on Screen, the University of Kent and City, University of London – is currently conducting a series of workshops on ‘Copyright and Fair Practice in Education’, with a view to identifying and establishing fair practice when using protected materials for educational purposes. The first two online workshops – held on 30th June and 7th July – focussed on film education and attracted 48 film academics from 32 different HE institutions in England, Scotland, Wales and Northern Ireland. Taking inspiration from the deliberation methods designed by Lee Edwards and Giles Moss in the project ‘Improving Deliberation, Improving Copyright’, these workshops adopted a 3-step method: first, participants were asked to deliberate on what they consider to be fair practice without being prejudiced or influenced by copyright law. This first deliberation exercise was followed by an introduction to UK copyright law, focussing on educational exceptions. After that, participants were given an opportunity to refine their statements based on the guidance they just received, in an attempt to capture how perceptions of fairness change depending on the type and level of knowledge of copyright law.

This work will be developed also in the H2020 project reCreating Europe, where CREATe is leading a task in collaboration with IViR (University of Amsterdam) aimed at identifying and establishing fair practice in reusing audiovisual materials for documentary filmmakers and immersive heritage practitioners.

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