Riyadh Al Balushi Position Paper
Does copyright law really encourage learning?
The first copyright law in the world, the Statute of Anne, declared itself as “An Act for the Encouragement of Learning”, yet modern day copyright law is regularly seen as an impediment to both traditional and new methods of teaching and as a barrier to the rights of members of society to access knowledge and culture. Copyright is meant to provide an incentive for authors to write new books, which should consequently provide students and schools with more and better educational materials, but if our students cannot learn they would not have the knowledge necessary to write new books, let alone the incentive to do so.
We should not forget that education is a human right: it is guaranteed by the Universal Declaration of Human Rights, the International Covenant of Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination Against Women, the Convention on the Rights of the Child, and many more. Education is an empowerment right that could be considered an end in itself and a tool for fulfilling other human rights. Rights such as the right to freedom of expression and the right to vote have little meaning to the people who are not educated. Education is also the only hope for many people to move up the social ladder out of the the economic status to which they are born, and its benefits impact society at large and not just the single individual.
On a high level, by restricting the ability of people to copy or imitate, which are fundamental components of the learning process, copyright law restricts the ability of individuals to learn. Many basic skills, such as speaking and handwriting, are learnt through mimicry. Learning by copying is also a standard practice in disciplines in the creative arts such as painting and music. Earlier this year, Oscar winning music composer Michale Giancchino admitted that he used to sneak tape recorders into cinema theatres to record the soundtracks of films such as E.T. and Raiders of the Lost Art – an act which infringes copyright law, but which also played a fundamental role in the growth of his skills to what they are today. By restricting copying, copyright by definition impedes education.
Copyright also has the capability of having a more tangible impact on education as it is one of the main factors that impact the increasing costs of the production of textbooks and learning materials and is a significant barrier to making access to education free. The high cost of textbooks is not only a problem for students from low-income families in poor countries such as the Philippines, but it is a growing problem to students in developed countries, too. Evidence from the Bureau of Labour Statistics in the United States shows that textbook prices have risen in the United States by 1041% from January 1977 to June 2015 which is over three times the increase in inflation.
Copyright also plays a major role in the limited availability of academic journals to students – an important educational resource for students at the university level. Due to the high costs for subscribing to electronic academic databases, access to such databases is extremely limited in developing countries. This lack of access to academic journals has led to the creation of websites dedicated to the unauthorised distribution of academic articles, which are popular in countries such as Iran, India, Indonesia, Malaysia and Egypt. According to an interview with the founder of one of these websites, such copyright infringing websites are not only used by the students, but also by authors of academic articles from these countries who use them to access the published versions of their own works. The costs of the subscription to the databases of academic journals are considered extortionate even to universities in developed countries. Many universities in Europe and North America are struggling to keep up with subscription costs that keep increasing every year by a factor of 5%, 10%, or 15% depending on the publisher.
Even academic disciplines that do not rely primarily on written educational materials are adversely affected by copyright restrictions. For example, a common method for teaching film involves showing students clips from different films to illustrate the matter discussed in the lesson (such as using a certain camera angle to achieve a visual effect). Copying small segments for such use is usually explicitly permitted by domestic copyright laws and has been a common practice since the days of analogue film tapes. However, copying clips from modern digital platforms for distributing films, such as DVDs, Blu-ray discs, or even digital downloads, violates the legal provisions against the circumvention of technological protection measures and is therefore an infringement of copyright law even if copying the work to which the technological protection measure is applied is permitted by the law. As more films now become exclusively released on platforms to which technological protection measures are applied to, teachers of filmmaking will not have a legal way for using film clips in the classroom because of copyright law.
New non-traditional forms of teaching and research, such as data mining, are also affected by copyright. Data mining is a set of technological processes that use software to look for interesting patterns in massive amounts of data that might otherwise not be observed. Such processes have useful applications in a variety of disciplines ranging from the biosciences (discovering previously hidden relationships between certain genes and diseases) to legal studies (discovering procedures in trials and automatic summarisation of court decisions). As data mining always involves copying, the use of data mining in research will by default constitute an infringement of copyright if the permission of the rightholder of each and every piece of data used in the research is not acquired. The UK has created an exception to permit non-commercial data mining, but for the majority of countries around the world, this act remains an infringement of copyright law and/or the terms of conditions under which the data is made available.
The restrictions that copyright law imposes on education are serious, not tied to any specific discipline, and affect developing and developed countries, and old and new teaching methods alike. It is hard to imagine that once upon a time it was claimed that the objective of this law is the encouragement of learning. Copyright law needs to take into consideration the needs of learners, not only because general members of society are entitled to learn, but also because the authors of tomorrow need to learn in order to be able to create.
Riyadh is an Assistant Legal Advisor at the Ministry of Legal Affairs of the Sultanate of Oman and a PhD candidate at the School of Oriental and African Studies, University of London. His research examines the extent to which copyright law restrictions on education could be considered a violation of the right to education under international human rights law. You can learn more about his work by visiting his website at http://www.riyadh.om or following him on Twitter at @RiyadhBalushi .