POTENTIAL CHALLENGES TO COPYRIGHT IN ONLINE TEACHING IN INDIA
Updated: Aug 22, 2020
The outbreak of the novel Coronavirus has made a significant shift from the traditional face-to-face classroom teaching to online teaching. While the world is gradually adjusting to this new normal, online teaching has raised several copyright-related questions for the educators. Moreover, in India, the uncertainty lies in the scope of the Copyright Act of 1957 (hereinafter “Copyright Act”) to deal with the emerging copyright issues in the wake of online teaching. In the backdrop of these emerging copyright concerns, this article aims to address three issues in online teaching in light of the provisions of educational fair use under the Copyright Act. Firstly, it analyses whether online teaching falls within the scope of the course of instruction. Secondly, it determines if uploading a recorded online lecture on a public platform, which contains copyrighted material, will amount to copyright infringement, and thirdly, it analyses whether a digital copy of an already existing physical copy of the work can be accessed or distributed by digital libraries.
Indian Position on Fair Use as Defence
The concept of fair use refers to the act of using copyrighted material in a way that does not constitute copyright infringement. It has its origin in the 1841 case of Folsom v. Marsh[i] delivered by Justice Joseph Story in the United States of America (hereinafter “U.S.”). This case laid down four tests to determine fair use as a defence. It stated,
“Look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work”[ii]
The factors and elements of these four tests are enumerated in paragraph 107 of the Copyright Law of the U.S. In India, fair use as a defence is provided under Section 52 of the Copyright Act. It puts a check on the monopoly of the holders of the copyrighted work by carving out exceptional circumstances of the use of their work by others which will not amount to an infringement of their copyright. It stipulates, inter alia, in the present context, that a fair dealing with the copyrighted work for educational purposes will fall within the exceptions enshrined under Section 52(1)(h) to 52(1)(j) of the Copyright Act. But to successfully avail fair use as a defence in India, an educator in online teaching has to satisfy two grounds:
i. That the use of copyrighted work should not be carried with a mala fide intention to compete with the copyright holder, and;
ii. That the improper use of the copyrighted work should not be made.[iii]
One can say that fair use as a defence is not a license but a privilege to use the copyrighted work with conditions imposed. Moreover, the 2012 landmark case of The Chancellor, Masters & Ors. v. Rameshwari Photocopy Services & Ors.[iv], famously known as the Delhi University (hereinafter “DU”) Photocopy case, went beyond all interpretations to elaborate the scope and application of Section 52(1)(i) of the Copyright Act which lays down the exception for educational purposes. The Court held, first, that fair use as a defence can be used until explicitly excluded by legislative intent. Second, four tests that are used to determine fair use as a defence in the U.S., as above mentioned, will have no persuasive value in the Indian context. Third, it held that the quantity of the material reproduced does not matter as long as it is used for bona fide educational purposes. And fourth, it focused on the term ‘course of instruction’, and clarified that it is not restricted to traditional classroom teaching but goes well beyond that.
ONLINE TEACHING, COPYRIGHT AND POTENTIAL CHALLENGES
Section 52(1)(i) and Online Teaching
The expanded interpretation of Section 52(1)(i), given by the Court in the DU Photocopy case can be understood to mean that online teaching as a ‘course of instruction’, both prior and post the act of delivering instruction, falls within the ambit of the Copyright Act, and fair use as a defence can be applied to it. Also, the use of PowerPoint presentations of copyrighted work; reading texts of book materials in online classes are also understood to fall within the same ambit as classroom teaching falls until it is used for educational purposes with a bona fide intention. In India, the recent uncertainty revolving around the question of whether online teaching falls within the course of instruction stands clear, hail to the landmark DU Photocopy case. Thus, the first question of the article stands answered here by the fact that the course of instruction is not restricted to traditional classroom teaching, but goes well beyond to include online teaching as well. Now the use of copyrighted work in online classes throws potential challenges to the copyrights of the holder, which is discussed further.
Recording of Online Classes and the Use of Copyrighted Material
The potential challenge to copyrighted work arises when it is used in an online class by an educator and is further uploaded on a public platform. The aim of the educator is not to infringe on the rights of the copyright holder; instead, it is to make the lecture easily available for the students, keeping in mind the issues of internet availability. The question here arises is, whether this would amount to copyright infringement? This can be answered by an understanding that uploading a video of the recorded class lecture which contains materials of the copyrighted work, without the permission of the copyright holder, on a public platform(for instance, YouTube), will amount to publication under Section 3 of the Copyright Act. It is noteworthy that this publication is restricted by two short passages under Section 52(1)(h), and this restriction is in itself a challenge. A solution to this potential challenge could be to take prior permission from the copyright holder, or uploading it on closed accessed resource databases, or marking it as unlisted to prevent it from appearing on public pages (for instance, on YouTube).
Conversion of Physical Copies to Digital Copies
As far as the Copyright Act is concerned, Section52(1)(n), incorporated through the 2012 Copyright Amendment Act, lays down that a digital copy of the already existing physical copy of the work can be made available by a non-commercial public library for preservation. Moreover, it gives no clarity if such a digital copy can be accessed or distributed through digital libraries. So can it be understood that there is an implied inclination towards access or distribution of it? Certainly no, until the legislative gap over it is covered by an explicit legislative intent.
To understand the copyright issues in digital libraries, one can draw their attention to the recent developments in the U.S., where a lawsuit is filed against Internet Archive (IA), known for controlled digital lending (hereinafter “CDL”), for the mass infringement of copyright through its open library in the name of emergency library program (ELP). CDL is used as a way to lend e-copies of physical copies of work. But in response to the outbreak of the Coronavirus, it went beyond to lend copies above existing physical copies it owned. As the lawsuit proceeded, it was seen that fair use as a defence in excess lending could not be used. Thus, India too needs to address this legislative gap in its Copyright Act.
Amongst the outbreak of the Coronavirus, the education sector has seen a constant debate and shift, be it in regards to online education, online exams, etc. But it is uncertain if the issues of copyright caused through this shift will be a priority any time soon. Though Section 52(1)(i) covers online teaching as a course of instruction under the Copyright Act yet there is a need to address the ambiguities to deal with extraordinary circumstances, like the present one. Consideration could be to address the extent of the use of copyrighted work in online teaching with a special focus on the scope of fair use as a defence in it. Another could be to clarify the usage of digital libraries and copyright issues that might emerge from it. The present pandemic will further pave the way for the digital revolution in India, and there is a need for planning and increasing the abilities of the Copyright Act.
[i]Folsom v. Marsh, 9 F. Cas. 342, No. 4,901 (C.C.D. Mass. 1841).
[ii]Id. at 348.
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The article has been written by Aditi Ajit who is a fourth year law student at NLUJAA, Assam. She has a keen interest in research and Intellectual Property laws.