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

1^ Documents from these seminars are available at:
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 .

2^ For the sake of simplicity, the terms ‘exception’ and ‘limitation’ will be used in this report indistinctively to refer to statutory provisions which authorize specific exploitation acts (or uses), whether the authorized act/use is for free (free uses) or remunerated (statutory or compulsory licenses).

3^ Many teaching and research uses are made possible through materials that have been obtained by or through libraries.

4^ See WIPO International Survey on Private Copying Law & Practice (2015) available at
https://www.wipo.int/edocs/pubdocs/en/wipo_pub_1037_2016.pdf

5^ Such as reciting a poem or showing an art work to be explained or commented in class.

6^ As confirmed by the fact that the Berne Convention has always safeguarded teaching and research activities.

7^ For instance, some E&L distinguish between public and for-profit academic institutions: non-voluntary licensing (uses permitted under E&L subject to remuneration) applies to the former, while the later remain a matter for strict voluntary licensing.

8^ For instance, Jamaica and the UK towards an Extended Collective Licensing ECL model. In some countries, a statutory E&L would only apply as long as there is no license available in the market for it; this mechanism fosters negotiations towards collective licensing, with CMOs approved by the government, and even encourages the development of CMOs. This is the case of the UK (educational purposes in s. 26 (6) CDPA), Mauritius, soon Kenya, and a similar mechanism also exists in Zimbabwe. This mechanism has also encouraged right holders in some countries to establish CMOs to grant licenses for educational uses, as in the case of Jamaica.

9^ In addition, broader market questions, such as the degree of competition in education and research publishing markets and the significant concentration of research publications in some countries, may also have an impact.

10^ Sometimes in conjunction with external partners.

11^ See Berne Convention for the Protection of Literary and Artistic Works, of 9 September 1886, as revised at Paris on 24 July 1971 and amended in 1979 [hereinafter, BC]. Similar E&L exist in the Rome Convention. for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961).

12^ Including the making available granted in Art.8 WCT.

13^ The reference to ‘by way of illustration in publications, broadcasts or sound or visual recordings for teaching’ resulted from a specific wish to accommodate to new technology; See Ricketson, Sam and Ginsburg, Jane C. (2006), The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986, Oxford, UK and New York, US, Oxford University Press, §13.45.

14^ See Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment, WIPO Document SCCR/9/7 (2003), p.15. See also Ricketson/Ginsburg, op.cit.supra, §13.44 and §13.45. As stated in the Agreed Statement concerning Art.10 WCT, Member States may ‘appropriately extend into the digital environment limitations and exceptions in their national laws … [and] devise new E&L that are appropriate in the digital networked environment.’

15^ See WIPO (1976), Reports on the Work of the Five Main Committees of the Intellectual Property Conference of Stockholm 1967, WIPO Publication 309(E), # 93-94. A commentary to the teaching exception in Sec.7(i)(c) of the WIPO Tunis Model Law on Copyright of 1976 explains that “illustrations must actually illustrate the teaching, and they are permitted only to the extent justified by the purpose. In practice, this means that the publication… is itself made solely for teaching purposes.”

16^ See Ricketson, WIPO Study, op.cit.supra, p.15: “in educational institutions and universities, municipal and State schools, and private schools”.

17^ See Ricketson/Ginsburg, op.cit.supra, §13.45.

18^ However, only a few countries have incorporated the Berne Appendix in their laws (allowing their nationals to request a license to reproduce and translate non-available works) and, even when so, very few have used them. See (2009) WIPO Studies on the Limitations and Exceptions to Copyright and Related Rights for the Purposes of Educational and Research Activities: Fometeu, J. (Africa) SCCR/19/5, p.42; Nabhan, V. (Arab Countries) SCCR/19/6, p.4; Seng, D. (Asia and Australia) SCCR/19/7, p.202; available at https://www.wipo.int/meetings/en/details.jsp?meeting_id=17462

19^ See Ricketson, WIPO Study, op.cit.supra, p.15: “Remuneration for [some] uses under a compulsory license may therefore make the use more ‘compatible with fair practice’”.

20^ See Ricketson, WIPO Study, op.cit.supra, p.13.

21^ See WIPO (1976), WIPO Reports op.cit.supra, § 205. See Ricketson, WIPO Study, op.cit.supra, p.37-39: “the exclusion of translations from the exceptions provided in these Articles will lead to a manifestly absurd or unreasonable result”. Aligned with this conclusion, Sec.7 “Fair use” of the WIPO Tunis Model Law on Copyright of 1976 expressly allows (under all the listed exceptions) the use of works “either in the original language or in translation”.

22^ See Ricketson, WIPO Study, op.cit.supra, p.12.

23^ See Ricketson, WIPO Study, op.cit.supra, p.13.

24^ Notable exceptions are Art.10(1) BC and the mandatory E&L in the Marrakesh Treaty.

25^ For instance, by excluding from the E&L works meant for the teaching market or by setting flexible but clear quantitative or qualitative restrictions so as to avoid depleting the normal exploitation of the work.

26^ Little harmonization has been achieved within the EU countries as a result of the optional E&L set in Art.5.3(a) EUCD in favor of “illustration for teaching and research purposes”. See Xalabarder, R. (2009) WIPO Study on Copyright Limitations and Exceptions for Educational Activities in North America, Europe, Caucasus, Central Asia and Israel SCCR/19/8; available at https://www.wipo.int/meetings/en/details.jsp?meeting_id=17462

27^ Some laws incorporate the formula “illustration for/of teaching” envisioned in Art.10(2) BC (and Art.5(3)(a) EUCD) but the majority of teaching exceptions still prefer other terminology such as “educational purposes” or “teaching purposes,” “school” and “classroom use”, and -more specifically- to “instruction,” “examination,” “lessons” and “lectures,” etc. These terms may be interpreted differently in each country.

28^ Most teaching E&L cover both reproduction and/or performance and are basically designed to envision the kind of activities (and works) used in face-to-face teaching. Some only allow photocopying, reproduction, “live” performances, or are directly restricted to ‘face-to-face’ teaching. A few national laws refer to “use”, yet it is not clear whether they would cover digital and online teaching uses.

29^ Very few E&L expressly allow translations for teaching purposes.

30^ As a general rule, teaching uses are exempted at all educational levels; however, a few laws establish different E&L for schools and for universities, or restrict them to the context of public education and non-for-profit institutions (or ‘non-commercial purpose’) excluding private for-profit educational institutions.

31^ Some E&L refer to teachers and/or students (or pupils) as beneficiaries.

32^ Following Art.10(2) BC, exempted teaching uses usually cover any works, to the extent required by the purpose. But a few national solutions prefer to regulate in detail the nature, extent, and quantity of works that may be used for teaching purposes. Some laws exclude the use of textbooks or publications intended for educational use or set specific quantity restrictions (10%, 15 pages).

33^ Some E&L require compensation under a statutory license. Others (especially in Common-law regimes such as Canada and UK) foster voluntary licensing by establishing a statutory exception to apply where no voluntary licensing has been agreed. In Nordic countries, extended collective licensing applies to exempted uses and also to license beyond the statutory exceptions. In other countries (mostly, EU), compulsory collective licensing schemes apply to compensate for uses exempted under E&L. And in other countries (again, mostly EU), some teaching and research uses may be indirectly compensated through levy systems provided for private copying applicable on equipment (such as photocopiers, printers and scanners) and/or on operators (schools, colleges, universities, libraries, research institutions, etc).

34^ Non-voluntary licensing set by law (statutory or compulsory licensing) facilitates the establishment and work of CMOs by making it unnecessary for them to obtain mandates of rights from right holders: the CMO is legitimized by law to grant licenses and collect remuneration.

35^ See (2009) WIPO Studies on the Limitations and Exceptions to Copyright and Related Rights for the Purposes of Educational and Research Activities: Monroy Rodríguez, J.C. (Latin America and the Caribbean) SCCR/19/4; Fometeu, J. (Africa) SCCR/19/5; Nabhan, V. (Arab Countries) SCCR/19/6; Seng, D. (Asia and Australia) SCCR/19/7; Xalabarder, R. (North America, Europe, Caucasus, Central Asia and Israel) SCCR/19/8. available at https://www.wipo.int/meetings/en/details.jsp?meeting_id=17462

36^ According to Directive 2019/790, of 17 April 2019, on Copyright and related rights in the Digital Single Market (Art.5), digital and online uses of works for teaching purposes will be permitted in the EU countries under a uniform mandatory E&L (Member States may choose the scope of exempted uses and the requirement of compensation); online cross-border teaching will be deemed to occur only in the country where the educational establishment is established (thus, subject to one national E&L). Member States may choose not to apply this mandatory E&L, either in general or as regards specific types of works, when “adequate licenses … are easily available in the market.” The concern behind this option is to avoid negative economic effects in countries where digital teaching uses are already being licensed by voluntary agreements (i.e. Nordic countries, UK and Ireland); at the same time, countries should be vigilant that the interpretation of “adequate licenses” does not prevent the enforcement of the E&L.

37^ Within the Asian region, Singapore formally allows using an insubstantial part of a work (e.g. 5 pages or 5%) for online teaching uses (distance learning), for free; while China, Japan, South Korea and Singapore allow further copyright uses (e.g. a journal article or an out-of-commerce work) for online learning, subject to remuneration (non-voluntary licensing).

38^ Sometimes, E&L for online teaching are the result of an intricate compromise of interests which is difficult to enforce and even more difficult to integrate with the rest of E&L; see, for instance, Sec.110(2) USCA.

39^ Liberia, Mauritius, Seychelles.

40^ As confirmed by Country delegates at the Regional Meetings.

41^ For instance, 43 countries in Africa, 27 in Latin America and 29 in Asia-Pacific; despite not all of them refer to the three means of exploitation.

42^ For instance, Ghana and Nigeria; Cambodia, North Korea, Lebanon, Malaysia, Philippines and Thailand.

43^ For instance, in the Caribbean region and in a few African countries (Kenya, Liberia, Uganda, Zambia, Zimbabwe, Eswatini, Namibia, South Africa).

44^ An E&L that only allows reproduction (even when digital copies are allowed) of a work for teaching purposes may not be fit to exempt online uses. Similarly, an E&L that only allows performances (or communication to the public) but not reproductions may also fail to exempt online uses, and so on.

45^ See Berne Convention, APPENDIX - SPECIAL PROVISIONS REGARDING DEVELOPING COUNTRIES: https://www.wipo.int/treaties/en/text.jsp?file_id=283698

46^ See SPARC: https://sparcopen.org/

47^ Where Database sui generis rights exist (such as in EU countries), the distinction is less relevant, since the maker of a database may claim an exclusive right on its contents (be it works or data).

48^ In the USA, courts have availed several instances of TDM as fair use. For instance, regarding copying and indexing done by search engines (see Kelly v Arribasoft, 336 F.3d 811 (9th Cir. 2003) and Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007) ), as well as the massive scanning, storing and indexing in a searchable database of whole books in libraries as part of the Google Books project (see AG v. Google, SDNY 14 Nov. 2014, confirmed 804 F.3d 202 (2d Cir. 2015) and, as far as university libraries, allowing them to create a full‐text searchable database of copyrighted works based on scanned copies obtained as part of the Google Books project (see AG v. HathiTrust, 755 F.3d 87 (2d Cir. 2014).

49^ In the UK, the non-commercial TDM statutory exception introduced in 2014 removed any requirement for a licensing scheme for TDM.; the Copyright Licensing Agency (CLA) is studying the possibility to discuss user requirements for a TDM license with researchers and their representatives in other sectors. Some CMOs have pointed out that they will forward their efforts to other sectors beyond the academic field, such as the corporate market.

50^ This section conveys information expressed by academic respondents to our surveys.

51^ Ultimately frustrating governmental and institutional open access policies and failing to comply with specific funding grants’ requirements.

52^ Legal uncertainty and excessively restrictive E&L will likely reduce online teaching uses to database-licensed or open-access content; copyright clearance costs to use other materials being too high for most academics and institutions.

53^ One may question the benefit of statutory E&L that may be subsequently displaced by contracts. On this issue, CC licenses expressly refrain from interfering with the scope of any applicable statutory E&L; however, not all national laws are clear enough on this matter and often licensing terms are meant to prevail over exempted uses under applicable E&L.

54^ As an example, the EU Copyright acquis offers diverging solutions. While E&L to Computer programs and Databases cannot be prevented by TPMs, Art.6.4(4) InfoSoc Directive expressly allows TPMs to prevail over E&L (despite a few of them are especially “protected” through courts). None of these Directives say anything regarding contractual terms. Instead, the recent CDSM Directive formally states that any contractual provision contrary to the mandatory E&L in Art.3-9 (namely for TDM, education and research, cultural heritage & out-of-commerce works) “shall be unenforceable;” however, it also refers to Art.6(4) InfoSoc Directive, thus opening the door for implementation of TPMs that may prevent the effective enforcement of these mandatory E&L. Last, but not least, the Marrakesh Directive addressed this issue in a more coherent manner (Art.3(4) and (5)) ensuring that the VIP exception cannot be overridden by contract or by TPMs (since Art.6(4)(4) InfoSoc Directive was not formally referred).

55^ Guidelines have often been prompted by copyright infringement claims or by notice and take down requests sent by copyright owners; these cases serve as a “wake up call” for the institution (to generate copyright guidelines) and for academics (to be more aware of the need of copyright compliance). Very few institutions offer copyright courses for their staff.

56^ Another important issue, which exceeds the scope of this Report, is the eventual liability of universities and educational institutions for copyright infringements committed by their staff and professors.

57^ Some scholars profess to be aware of copyright E&L and consider them clear and broad enough to cover teaching and research needs; yet, these same scholars express some of these common misunderstandings.

58^ As explained by academic respondents to this Study, in some Nordic countries, researchers have been sued for using copyrighted images at conferences outside campus.

59^ For instance, database licenses do not establish restrictions on the number of pages that can be copied for teaching and research uses.

60^ Similar views have been expressed in Australia; see Australian Law Reform Commission (2014) Copyright and the Digital Economy, available at https://www.alrc.gov.au/publication/copyright-and-the-digital-economy-alrc-report-122/

61^ See (2009) Monroy Rodríguez WIPO Study, op.cit.supra., p.232: “users may find it difficult to obtain express prior authorization since, in the region, right holders have not implemented a collective management systems for rights...” Regarding a similar situation in African countries, see T. Koskinen-Olsson (2014) WIPO Study on Collective Negotiation of Rights and Collective Management of Rights in the Audiovisual Sector, http://www.wipo.int/edocs/mdocs/mdocs/en/cdip_14/cdip_14_inf_2.pdf : “The scarcity of strong and representative associations or guilds of creative collaborators and financing partners does not support collective negotiation of rights in [these countries].

62^ Let us remember that collective management only applies to cases in which the owner cannot, does not have the capacity or is not interested in negotiating its rights directly with users.

63^ Notice that a different licensing system may apply to the same activities in the market, depending on the specific licensee and licensed subject-matter. For instance, public teaching institutions may benefit from an E&L subject to remuneration and, thus, obtain a legal license from the CMO, while businesses and private institutions will obtain a voluntary license from the same CMO; And a public university may obtain a legal license from a CMO to remunerate for teaching uses exempted under an E&L and a voluntary license (from the same CMO) to authorize further teaching uses, beyond those exempted by the statutory E&L.

64^ This is the licensing system operating in many countries around the world, i.e. USA, UK, Kenya, Colombia, Argentina, Chile, Mexico.

65^ This is the case for the UK, which is contained for educational purposes in s. 36 (6) CDPA, Jamaica, soon in Kenya, and a similar mechanism also exists in Zimbabwe.

66^ It is native to the Nordic countries; today, the ECL model has also been adopted in other countries such as Malawi, the Russian Federation and will be implemented in the UK and Jamaica soon. Also the EU has recently implemented an ECL model in its Directive 2019/790 on Copyright in the Digital Single Market.

67^ Licensing negotiations take place on a voluntary basis and the CMO must be representative within the sector. All right holders (members and non-members) have a right to receive remuneration (from the ECL) and, often, they can opt-out of it.

68^ In the field of education, this applies in Australia. Netherlands and Switzerland cover other sectors.

69^ Belgium, Spain, and many other countries, most of them European.

70^ https://www.stm-assoc.org/copyright-legal-affairs/licensing/text-and-data-mining-stm-statement-sample-licence/

71^ and https://www.stm-assoc.org/2013_04_17_Readable_Summary_Sample_licence_for_Text_and_Data_Mining_of_subscribed_copyright.pdf

72^ Science Online Journals Institutional License Agreement https://www.sciencemag.org/subscribe/institutional-license-agreement

73^ See: https://www.kopiosto.fi/app/uploads/2018/11/11095521/Brochure-The-Kopiosto-copying-licence-Universities_19.pdf

74^ For instance, see http://www.copyright.com/business/xmlformining-2/

75^ See Australia http://apraamcos.com.au/music-customers/licence-types/music-in-education/; See Norway https://www.tono.no/en/ and https://norwaco.no/en

76^ Japan where new legislation implemented compulsory license for universities digital uses of copyright content, including online sharing and storage of content for all type of works (text, image, audiovisual, music); in South Korea, where a similar compulsory license allows online transmission of copyright content by universities.

77^ Universities UK and GuildHE established a copyright working group, now called the Copyright Negotiating and Advisory Committee (CNAC), responsible for all copyright matters that have implications for the higher education sector. It is responsible for negotiating copyright licenses on behalf of the sector if they are considered to be in the best interests of the sector. This includes monitoring their implementation, and raising issues with licensing bodies about any new products or services that they may wish to initiate that are related to copyright and likely to affect the sector. See https://www.universitiesuk.ac.uk/policy-and-analysis/Pages/copyright-working-group.aspx

78^ Copibec -the RRO for Quebec- offers the possibility to have online access to over 30 000 books, picture books, illustrations, song lyrics, sheet music collections, magazines and visual artworks. This service -SAMUEL- allows to download selected excerpts and to share them in class or on the secure network of the institution https://www.copibec.ca/en/samuel Or in the UK, where CLA offered new services such as the Digital Content Store. With 110 Higher Education Institutions signed up, over 241,827 items of content, over 229,884 active links, and UK students download 5 million copyright-compliant documents. https://www.cla.co.uk/digital-content-store.

79^ In LATAM, six countries have established an RRO, three of them offer digital licenses. In Africa, there are 15 established RROs and four of them offer digital licenses (https://www.ifrro.org/rro).

80^ About 90% of larger publishers actively marketed to consortia, and about half of all publishers According to the last two ALPSP Scholarly Journals Publishing Practice reports (Cox & Cox, 2008; Inger & Gardner, 2013). In: STM Report 2018 “An overview of scientific and scholarly publishing”. In Ghana, for example, the Consortium of Academic and Research Libraries (CARLIGH) with more than thirty (30) tertiary educational institutions as members, subscribe to online materials (covering different subject area) directly from the right holders or database service providers, without the involvement of CopyGhana (RRO of Ghana).

81^ Consortia centralize services, including content acquisition and negotiation with rights holders, mainly publishers. The vast majority (61-97% depending on the publisher) of publisher-library contracts, is done through consortia. In: STM Report 2018

82^ The numbers of consortia have been growing strongly: the Ringgold Consortia Directory Online lists over 500 consortia in 126 countries, representing over 32,000 individual institutions; of these, about 350 are responsible for licensing content. The International Coalition of Library Consortia has about 200 members. The size and nature of consortia vary considerably, from national consortia to small regional ones, and include academic, medical, public, school and government libraries. In STM Report 2018, p. 20.

83^ For example Pearson https://www.pearson.com/uk/educators/higher-education-educators/products-and-services/course-development.html, Wiley Education Services https://edservices.wiley.com/why-partner/services-and-solutions/ Mc Graw-Hill https://www.mheducation.co.uk/

84^ There were about 33,100 active scholarly peer-reviewed English-language journals in 2018, collectively publishing some 3 million articles a year. CrossRef database includes over 97 million DOIs, of which 73 million refer to journal articles from a total of almost 60,000 journals. the Web of Science ‘Core Collection’ included about 70 million article records as of June 2018, out of a total of 150 million items across all WoS databases. Journals which published only original research articles comprise about 95% of journals. In: STM Report 2018, p.25.

85^ OC&C Strategy Consultants have estimated global spending on academic and scientific content by academic libraries alone at just over €7 billion. Academic libraries have traditionally been the primary source of journal revenues, estimated at 68-75% of the total. In: STM Report 2018.

86^ In 2008, the ALPSP released an international survey reporting on scholarly publishing practice (Cox & Cox 2008 via the STM Report) finding that 96% of STM and 87% of Arts, Humanities and Social Sciences (AHSS) journals were already accessible electronically or 'born digital'. In: PRC Open Access Licensing Study by Carlo Scollo Lavizzari and René Voljoen, 2015, p 9.

87^ Sales of individual journal subscriptions fell in favor of bundles, while electronic publishing was arising. Cox & Cox (2008) found that nearly all (95%) of large and most (75%) of medium publishers offered bundles of content, and 40% of small publishers. In: STM Report, 2018.

88^ Historically there has been a big difference between the market figures of books and journals. However, according to experts, electronic books can gradually become more important both for libraries and for end users.

89^ Publishers such as McGraw Hill Education, HarperCollins, Ingram, Penguin-Random House, publish through SliceBooks Store, and also offer their users and readers the service of editing their own ebooks from fragments of the digital books offered in the store. In: Evolución de los nuevos modelos de negocio en la era digital. Study by DosDoce and CEDRO, 2016. http://www.dosdoce.com/evolucion_nuevos_modelos_negocio_en_la_era_dgital_v2.pdf

90^ Already in 2012, it amounted to be 83% (Inger & Gardner, 2013). In: STM Report 2018.

91^ DosDoce and CEDRO Study, 2016

92^ A 2013 Association of Learned & Professional Society Publishers -ALPSP- report suggests that the market had reached near saturation in terms of online availability, with the large majority of publishers having over 90% of their content available online. In: STM Report 2018 “An overview of scientific and scholarly publishing”, p. 28

93^ Cambridge.org/es/academic/subjects/arts-theatre-culture/titles/?options[]=Textbooks: https://global.oup.com/academic/product/productivity-and-the-bonus-culture-9780198836117?lang=en&cc=es: https://yalebooks.yale.edu/

94^ See https://www.snapplify.com/

95^ In general terms, authors transfer their rights to the publisher -but usually maintaining some of their rights- or grant an exclusive license to the publisher (this last option offers great security regarding the specific rights and uses included).

96^ https://support.ringgold.com/cdo-useful-info/). Licenses included academic libraries, academic consortia, corporate library, public library, ebooks and 30/60-day free trials. http://www.licensingmodels.org

97^ Make difference between course packs, as a collection or compilation of printed materials (e.g. book chapters, journal articles) for use by students in a class (face to face), and electronic reserve, electronic copies of materials (e.g. book chapters, journal articles) made and stored on the Secure Network by the Licensee for use by students in connection with specific courses of instruction offered by the Licensee to its students.

98^ Example of a Creative Commons Attribution License (CC BY) machine readable embedded license: This article is available under the terms of the Creative Commons Attribution License (CC BY). You may copy and distribute the article, create extracts, abstracts and new works from the article, alter and revise the article, text or data mine the article and otherwise reuse the article commercially (including reuse and/or resale of the article) without permission from Elsevier. You must give appropriate credit to the original work, together with a link to the formal publication through the relevant DOI and a link to the Creative Commons user license above. You must indicate if any changes are made but not in any way that suggests the licensor endorses you or your use of the work.

99^ A 2012 survey conducted by the Association of Research Libraries reported that more than 90% of libraries bought “content packages” from major publishers. (Strieb and Blixrud, 2013). In: STM Report 2018 “An overview of scientific and scholarly publishing”, p 19

100^ https://www.semana.com/educacion/articulo/bases-de-datos-universitarias-presupuesto-para-investigacion-en-colombia/524572

101^ De la distribución de libros electrónicos y los nuevos escenarios de compra y uso a nivel institucional. Pau Torres y Edgar Forero, Hipertexto Study, 2019.

102^ Hipertexto Study, 2019.

103^.See https://search.alexanderstreet.com/mpls

104^ See https://www.mplc.org/ which is available in different countries.

105^ For instance, the Umbrella License for Schools in Ireland that includes this advertisement related to a specific limitation in their Copyright Act: …some educational screenings are exempt. This exemption is narrowly defined and applies only for educational use where the content is shown in the classroom, as part of the curriculum course or study programme. All other school showings require a separate licence.

106^ The Open Educational Resources (OER) movement aims at providing high-quality digitized educational materials, tools, and implementation resources offered freely and openly for anyone with access to the Internet (see http://www.hewlett.org/oer ) The Open Education Consortium assembles more than 200 universities worldwide promoting universal access to knowledge on a nonprofit basis https://www.oeconsortium.org/

107^ MOOCs figures are impressive (see https://www.class-central.com/report/mooc-stats-2018/): in 2018, 2500 new courses, 20 million new learners signed up for at least one MOOC.

108^ Private platforms (businesses) have also started offering MOOCs, usually in exchange of a fee or other indirect payment. MOOCs top providers are Coursera, edX , XuetangX (Chinese), Udacity, FutureLearn or Miriadax (Spanish).

109^ The MIT’s “Code of Best Practices in Fair Use for OpenCourseWare” provides a good example. OpenCourseWare was launched by the Michigan Institute of Technology (MIT) back in 2002, as an initiative to adapt the MIT course materials and publish them as OCW for use by MIT educators. It soon turned out that independent learners, widely distributed around the globe, quickly became OCW’s principal audience. https://ocw.mit.edu/index.htm

110^ The copyright clearance process (verifying ownership of rights, obtaining authorizations, assessing conditions, fair use and E&L exemptions) imposes an important burden on the Institution developing OER or MOOCs initiatives.

111^ This is the case of Australia.

112^ For instance, under US law, works published in the USA before 1924 are in the public domain – but this may not be so according to other national terms of protection.

113^ Since OER material will be used worldwide (under a CC license) and subject to multiple national copyright laws, academics are advised to only use material that has been licensed on a world-wide basis without time or territorial restrictions.

114^ See OCW Best Practices, p. 1.

115^ Transformation is always allowed (Non-Derivative clauses are not considered OER); commercial purposes may or may not be permitted. See OER Commons: https://www.oercommons.org/

116^ Before publishing an OER or MOOCs, intellectual property in the materials is duly cleared by the institution – yet, practices differ widely. Some institutions exert heavy revision and clearance processes before publishing OER materials, while others simply rely on their academic staff to follow guidelines and assign to them (at least, on paper) any liability for infringement.

117^ For instance, an OER produced in the USA would only take into account US Copyright law (and the fair use doctrine) to identify if a French material may be freely used as part of an OER course material; however, the academic is advised to also consider if the use would also be exempted under other national copyright laws’ E&L of quotations, incidental use, teaching and research, etc.

118^ Member States may choose whether to require compensation or not, and whether to set aside this mandatory E&L when “adequate licenses … are easily available in the market.”

119^ This is the case of the UK since 2014 CLA -UK RRO- has operated a pilot licensing scheme for universities wishing to make digital copies available to students studying for a UK degree at overseas campuses. The Overseas Campus Based Students pilot was developed at the request of the Copyright Negotiation and Advisory Committee (CNAC) representing UK higher education institutions.

120^ This approach is the solution preferred by Australian universities that offer the same course at a number of foreign campuses. for example, RMIT. https://www.rmit.edu.au/