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

Legal uncertainty about the scope of exempted uses

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sccr 39 6
Legal uncertainty about the scope of exempted uses leads to unnecessary licensing or even precautionary removal of contents, which has a negative impact on the quality of education or research provided.52 Risk-avoiding institutions tend to advise their students and professors to seek permission from copyright holders to use any works (i.e., images) in doctoral thesis and research papers that are intended to be published on an online open-repository; despite, quite often, these uses could be exempted as quotations or under the teaching and research E&L.
Furthermore, in some cases - depending on the source (e.g., materials obtained through a licensed database) - licensing terms may prevent a teaching use that might be exempted under an E&L. Even though, in theory, one may expect E&L and fair use to prevail over specific contractual terms and conditions53, in practice, this is a controversial issue (much debated by case law and scholarly doctrine) and one that may require further guidance from the international and national legislators.54
Also, without questioning the validity of DRM to exploit works and prevent infringement, DRM are often identified as an obstacle to the use of copyrighted content (mostly, audiovisual content) for teaching purposes. Some academics explained that they must take screen-captures of video contents to show their students or that DRM restrictions have pushed them to use OER, instead.
Not all teaching and research institutions have a unit which specializes in copyright law and often, institutions’ legal offices fail to include copyright expertise. Most institutions have general warnings on copyright compliance and academic ethics (Codes of conduct), but they fail to offer specific guides for the use of copyrighted material for teaching and research uses (although, on this specific issue, a clear distinction may be drawn between academic institutions in developed and developing countries). Even where guidelines exist,55 academics are generally unaware of them.56
Additionally, university policies and academic obligations may sometimes conflict. For example, an institution may favor open access publishing (which will subsequently facilitate reuse for teaching and research purposes) but, at the same time, academics are expected to publish in the most prestigious (non-open access) journals in order to obtain professional accreditation and career promotions.

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