While the world is trying to come out of the pit of a global lockdown, we have adapted to a new world of ‘6 feet distance’. Educational Institutes across the world have shifted to digital learning platforms. Online education involves distributing copyrighted materials online. The Indian Copyright Act contains exceptions for teachers to use copyrighted material. Does that exception apply to the digital interface as well?
Provisions under the Copyright Act, 1957
Fair dealing is a form of limitation and exception to the rights of the copyright owner under the Copyright Act, 1957. It permits reproduction, which, would have otherwise amounted to an infringement of copyright. The US law is more flexible than the Indian law in the matter. Sec. 52 of the copyright act lists some exceptions; making it is restrictive. Further, ‘fair dealing’ under Indian law is to determined by the necessity of the use to the cause.
‘Reproduction’ means making a copy or copies of an original or photocopying. The WIPO Copyright Treaty states that ‘reproduction’ rights apply in the digital environment. According to Article 9 of the Berne Convention reproduction includes storage of work in an electronic medium.
The terms ‘teacher’ and ‘student’ also include ‘teachers’ and ‘students’. But, the use of the term ‘teacher’ itself curbs the ambit of the section. Sometimes, a non-teaching staff might actually communicate the material compiled by teaching staff.
Section 52 consists of the phrase ‘in the course of instruction’. To that end, the Delhi High Court in the case of The Chancellor, Masters & amp; Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & amp; Ors. [(2016) 160 DRJ (SN) 678] interpreted ‘course of instruction’ as: “…imparting and receiving of instruction is not limited to personal interface between teacher and pupil…” The court interpreted the legum mente behind the educational exceptions. Education should not be bound within four walls of a room.
Role of Intermediaries
One of the vital problems of online learning is the uploading of course content. All materials uploaded gets stored on online platforms. Unlike physical classrooms, educators cannot ensure the limited distribution of copyrighted material.
Draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018, states that intermediaries must deploy automated tools to identify and remove public access to unlawful content. Additionally, the rules enable intermediaries to trace the originator of the material. The rules are yet to come into effect. ‘Necessity of use’ is a key factor in determining copyright infringement by teachers. How a computer algorithm would consider those are still unanswered.
The drawbacks of Indian law become evident when compared with its laws of other developing and developed countries. For example, unlike India, the Australian copyright law defines educational institutions. It covers various methods of educational instruction including instruction by correspondence.
In the USA the TEACH Act, 2002 deals with copyright issues in online learning. The Act allows teachers to use copyrighted material without paying royalties. Copyright laws of Ghana and South Africa have similarity with the Berne Convention. Article 10(2) of the convention uses broad terms like ‘utilization’. It encompasses both communication and reproduction within its ambit. India needs to follow this and amend its antiquated laws. Delay in legislative changes could result in infringing the fundamental right to education.
In May 2020, the Central government launched 12 DTH channels for school children. It is trying to ensure that a pandemic does not hamper education for millions of students. As is evident, education as an institution is going to change its ways. Unfavourable laws will only drag educators to Court and instil fear. The current law is inadequate for digital learning. India needs to amend its laws to ensure widest possible access to education material.
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