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
Research activities conducted online by research centers and universities.

  • OER and MOOCs offered by teaching or research institutions (not by private businesses).

    Several exceptions and limitations2 existing in copyright laws may apply to educational and research uses conducted online:

    • Quotations E&L;

    • Teaching and Research E&L;

    • Private use/copying E&L;

    • Library E&L;

    • Fair use/dealing provisions (in Common law countries).

    Despite they may directly or indirectly interact with educational purposes,3 E&L for libraries will not be considered in this report since they are considered elsewhere. For the same reason, private use/copying E&L that benefit not only students, teachers and researchers, but individuals in general, will not be examined here, despite these E&L may have a direct impact on the scope of uses permitted by some national laws for purposes of teaching and research.4 Quotations done for teaching and research purposes5 are generally permitted under Quotation E&L or Fair use/dealing provisions. Hence, the report will focus on E&L designed specifically for Teaching and Research purposes, as well as on Fair use/dealing provisions -where existing- that may exempt them.

    Specific examples of teaching uses, at any educational level, that may be permitted by law include copying works or fragments of works for purposes of an exercise or an exam, dictating fragments of literary works to students as part of their training, playing a song (phonogram) for students to identify words in a foreign language, playing a musical composition, copying a work of art to use as an exercise, playing part of a movie (or part of a recorded TV program) to debate in class, scanning a few pages from a book to use as an exercise or exam or as part of the instruction, etc. These uses amount to something more than quotations and they will only be allowed to the extent that they are exempted by a specific E&L for teaching purposes or, failing that, that they have been authorized by right holders. The scenario gets more complicated when the same acts are conducted online, as part of distance education programs or of MOOCs and OER projects.
    Furthermore, within the context of university education, the publishing sector (academic publications) is heavily impacted: whether copying (either in analogue or digital format) of fragments of treatises and textbooks to be used for reading and studying purposes is permitted under a specific E&L (and if so, to what extent and conditions) or, instead, it requires a license (and if available, under what conditions) remains a critical issue. In no case, should infringing activity occurring in some countries, be confused with exempted uses under E&L for teaching and research purposes.
    In general terms, E&L envisioned in national laws to allow the use of copyrighted content for Teaching and Research activities tend to be defined narrowly in terms of acts of exploitation allowed, works and amount that can be used, and beneficiaries. Not all works, and not in the same manner, may be used for teaching and research purposes. Furthermore, most national E&L for Teaching and Research purposes fail to cover digital and online uses; when they do, they are often subject to more restrictive conditions than those set for analogue and face to face academic activities.
    The use of copyrighted works for Teaching and Research may be permitted under E&L for free or subject to remuneration. Depending on the scope of permitted uses, remuneration may be necessary to comply with the Three-step test requirements (e.g., Art.9(2) BC): namely, to avoid conflicting with a normal exploitation of the work and causing unreasonable prejudice to the legitimate interests of the author. Remuneration schemes for teaching and research uses permitted under E&L (either as statutory licensing or compulsory licensing) are usually managed by CMOs – we will refer to them, in general terms, as non-voluntary licensing.

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