E sccr/39/6 original: English date: October 15, 2019 Standing Committee on Copyright and Related Rights Thirty-Ninth Session Geneva, October 21 to 25, 2019



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sccr 39 6









E

SCCR/39/6

ORIGINAL: English

DATE: October 15, 2019



Standing Committee on Copyright and Related Rights
Thirty-Ninth Session
Geneva, October 21 to 25, 2019

Report on practices and challenges in relation to online distance education and research activities


prepared by Ms. Monica Torres and Professor Raquel Xalabarder


Report on practices and challenges in relation to online distance education and research activities

The purpose of this study is to understand how the existing copyright framework affects online distance education and research activities conducted by universities, either through exceptions and limitations (E&L) or through licensing/contractual schemes, covering both national and international activities, and taking into account territorial diversity and different legal traditions (common law / civil law) as well as the cross-border dimension of these activities.


Acknowledgements
We want to express our thanks and gratitude to all teachers, researchers, institutions and Collective Management Organizations (CMOs) who have contributed to this report, as well as to the WIPO Copyright Law Division for its continuous support.
Authors’ CVs
Ms. Monica Torres. Specialist in Commercial Law from Universidad de los Andes (Colombia) and Administrative Law from the Sapienza Universitá di Roma. Chief of Copyright area at CERLALC-UNESCO (1993-2013), managing national and international projects for Ibero-American countries. Invited Professor at the Universidad de Buenos Aires for the Intensive Postgraduate degree on Intellectual Property during ten years, and Professor in Intellectual Property at Universidad del Rosario for four years. Currently working as an International Consultant in Intellectual Property.
Prof. Raquel Xalabarder holds a Chair of Intellectual Property at the Universitat Oberta de Catalunya, where she is the Law School Dean. Master of Laws by Columbia University Law School, New York (1993). Doctor of Laws, cum laude by unanimity, by the Universitat de Barcelona (1997). Visiting Scholar at Columbia University Law School, New York (2000-2001) and Honorarvetrag at the Max Planck Institute for Intellectual Property, Munich (2008 and 2011). President of ALADDA, Spanish group of ALAI, Treasurer of ATRIP, and member of the European Copyright Society. Prof. Xalabarder has taught and published extensively on intellectual property, law of the internet and private international law.
Methodology

  1. Desk research (literature).

  2. Surveys and interviews with universities teachers and researchers of several countries, CMOs in different countries and other stakeholders.

  3. Three WIPO Regional Seminars on Libraries, Archives, Museums and Educational and Research Institutions in the field of Copyright, for the Asian, African and Latin American and Caribbean regions, conducted between April and July 2019. Meetings involved SCCR Members and stakeholders:

OMPI/DA/SDO/19 https://www.wipo.int/meetings/en/details.jsp?meeting_id=52668


WIPO/CR/NBO/19 https://www.wipo.int/meetings/en/details.jsp?meeting_id=52670
WIPO/REG/CR/SIN/19 https://www.wipo.int/meetings/en/details.jsp?meeting_id=51652

The authors thank Mr. José Luis Caballero (Mexico), Prof. Kwaku Mensah Ganu (Ghana), Mrs. Rán Tryggvadóttir (Iceland), Prof. Kimberlee Weatherall (Australia), for their helpful reviews and comments.



Content



EXECUTIVE SUMMARY 4
1. INTRODUCTION 5
2. E&L FOR TEACHING AND RESEARCH 9
2.1 THE BERNE CONVENTION 10
a) Teaching purposes 11
b) Quotations 12
c) The Three-Step Test 13
2.2 E&L IN NATIONAL LAWS 14
a)E&L for teaching purposes 14
b) E&L for research purposes 18
2.3. EXPERIENCES AND VIEWS FROM ACADEMICS 19
3. LICENSING TEACHING AND RESEARCH ACTIVITIES 24
3.1. COLLECTIVE (CMO) LICENSING 25
a) Collective licensing for teaching and research purposes 26
 Science Online Journals Institutional License Agreement https://www.sciencemag.org/subscribe/institutional-license-agreement 27
b)Availability of licensing 28
c)Licensing challenges 29
3.2. DIRECT LICENSING 31
a)Direct licensing of educational and research activities 33
b)Licensing terms 35
c) Licensing challenges 37
d)Other content available 39
4. OER AND MOOCS: A SPECIAL SCENARIO 40
5. SPECIFIC TERRITORIALITY CHALLENGES FOR ONLINE ACTIVITIES 43
6. CONCLUSIONS 46
Abbreviations 47

EXECUTIVE SUMMARY


Digital technology and the internet have significantly and rapidly expanded teaching and research opportunities. However, in terms of copyright law, flexibilities that exist for teaching and research activities in the analogue world do not seem to apply in the same manner in the digital world.
Most copyright laws allow making copies and performances of works for teaching and research purposes in analogue and face-to-face scenarios. The same uses are not always possible in online and digital contexts. Several reasons may explain this result. Firstly, because most exceptions and limitations (E&L) were adopted before digital and online technologies developed and the right of making available online was not accordingly exempted. Secondly, because even when teaching and research E&L cover online uses, they tend to be more restrictive in scope and less flexible than E&L for analogue and face-to-face uses. In addition, online teaching and research must face the paradox that while exceptions and limitations in national laws are territorial in scope, activities conducted online often take place in different countries (we refer to it as the “cross border” element). A teaching use exempted under the national law of the country where the teaching institution is located may not be so exempted under the national laws of other countries where students or academics reside.
Similarly, availability of licensing for teaching and research activities is far from uniform worldwide. Licensing practices vary across different countries, depending not only upon the specific copyright statutory choices, but also on the specific licensing “ecosystem” and, of course, on the cultural, economic and market conditions that exist in each country. In some countries, licensing for teaching and research uses is easily available (mostly, for publications) either via CMOs or directly from Copyright owners; whilst, in other countries, collective licensing is hardly operational and direct licenses are not yet available. In general terms, even where licensing is available for specific academic uses, it tends to be territorial in scope, thus failing to satisfy the needs of online academic activities that take place across borders.
Some countries are introducing changes in their national laws to accommodate E&L to online teaching and research, and to foster licensing models (e.g., through collective management organizations) for uses that go beyond those exempted under E&L. Given this situation, a reflection could be made on how to reduce uncertainties as to the scope of exempted uses under national E&L and overcome their territorial effects, in order to better respond to the needs of teaching and research activities conducted online and across borders and to foster their development.
E&L and voluntary licensing are not mutually exclusive. A combination of E&L in national copyright laws - adjusted to the specific cultural, economic and market circumstances of each country - and licensing schemes - either under collective management or directly from right holders -, could provide relevant solutions to foster copyright uses in teaching and research activities online.


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