Introducing a Levy Scheme to Online Educational Use of Copyrighted Works

It is common for teachers to use others' copyrighted works for the purpose of teaching. The current copyright law in many nations only exempts educational use in the context of offline classroom teaching. The use of others’ copyrighted material in online teaching may still constitute copyright infringement. To protect teachers from the chilling effect of copyright infringement, to safeguard the public's freedom to obtain knowledge, and to ensure the commensurability of the profits and responsibilities of online teaching platforms, this paper proposes a levy scheme for online teaching. Under the levy scheme, teachers are free to use others’ published work for the purpose of online teaching, provided that such use does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interest of the copyright owner. Online teaching platforms should remunerate the copyright owner of the work used in the platform according to the number of participants of the course that uses such work.

Distribution of creative works protected by copyright

This article addresses possible structural alternatives for the dissemination of the results of intellectual activity (RIA), which reflect setting of optimal price and level of technical protection. The paper argues that digital piracy is not always a negative factor for the author or copyright owner but may be a signal indicating an inefficiently of RIA distributing method. The developed model demonstrates the choice of RIA distribution strategy depending on various factors: author's popularity, the difference in quality between the original RIA and pirated copy, legal protection level. The findings regarding the possibilities of combining legal and technical protection, consumer behavior and the positive effects of digital piracy will help the regulator to apply more effective measures. The article is written on the basis of the RANEPA state assignment research program.

Copyright Concerns for Educators: Online Learning Post Pandemic Effect

Online distance education was once a process that was not easily been accepted by students, even by the educators, but when the pandemic strikes, they had to adopt and adapt the process in order to gain knowledge. The COVID-19 has resulted in shutting down schools, including tertiary institutions, all across the world. Consequently, education changed dramatically, and the mode of teaching was done remotely and on a digital platform. One of the adoptions of online learning involves using numerous online platforms and inserting interactive programs, music, animated graphics, photos in the teaching material to attract the interest of students. These types of works are, more often than not, copyrighted works that belong to someone. Generally, a license or permission must be sought before these works can be used by anyone. The permission or license, once granted, would involve a licensing fee or royalty payments to the copyright owner. However, this article looks at the law relating to the copyright exploitation awareness in the context of the law of intellectual property and the exceptions to this law, in particular, the scope of the hybrid fair dealing defence for education. This paper employs a doctrinal analysis using secondary data from academic journals, books, and online databases. The findings will respond to the legal framework for the understanding of copyright exploitation and its exception in the post-pandemic era.

Bases for Copyright Licences to be Implied

This chapter discusses the bases on which copyright licences can be implied. It begins by looking at analogies in other areas of private law dealing with implication. The most elaborate doctrine of implication are the rules of implication of a term into a contract—implied in fact, implied by custom, and implied by law. These are known to private law as sources of private and public ordering, which apply as much to the actions of persons vis-à-vis other persons (such as entering into a contract), as they do to the actions of persons vis-à-vis persons in relation to property (such as granting a licence). It follows that these also form the basis on which express copyright licences arise. The bases for implying copyright licences must be the same as the bases for express copyright licences to arise, because the courts cannot do by way of implication what they could not have done if there was an express provision. This way, the exercise of the discretion that the courts have in implying copyright licences is made more transparent and predictable, fostering legitimacy and coherence in the process. Accordingly, the bases for implying copyright licences are: the consent of the copyright owner (consent-based); an established usage in a trade or an industry (custom-based); and state intervention to achieve policy objectives (policy-based).

Licences Implied by Custom

This chapter focuses on licences implied by custom. A custom in this context represents the conduct of a community (of members of a trade, profession, industry, or market), as opposed to an individual copyright owner enabling the copyright work to be used in a particular way. So long as the community within which the custom is alleged represents the copyright owner, the community’s conduct will be taken as being on behalf of the copyright owner. Once established, a custom does not require validation by a court of law for it to be binding, so that a custom becomes an independent source of power that drives the implication of a copyright licence. Also, once established, a custom can be the basis for implying both a bare licence and a contractual licence, depending on the content of the custom. Therefore, the chapter analyses the case law within a single framework for implying both bare and contractual licences. It builds on the criteria developed by the courts in commercial law to establish a custom (certainty, notoriety, and reasonableness), incorporating factors specific to the copyright context.

Consent-based Implied Contractual Licences

This chapter evaluates consent-based implied contractual licences. Consent-based implied contractual licences differ from consent-based bare licences in that there is consideration that flows from the licensee in exchange for the licensor undertaking not to revoke the licence, in addition to there being an intention to create legal relations. The existence of a contract provides the structure within which to assess the copyright owner’s consent as the basis for implying a licence. The modern significance of implied contractual licences lies in their application to copyright content placed online by or with the consent of the copyright owner, and is subject to terms of use that amount to a contract. This chapter applies the framework proposed in Chapter 3, rather than the rules of implying terms in fact, in order to make the process of implication more transparent. The chapter examines the case law in three broad categories of contractual copyright licences: (i) commissioning contracts; (ii) copyright exploitation contracts; and (iii) consumer contracts.

Implied Licences in Copyright Law

Implied licences can serve as a flexible and targeted mechanism to balance competing interests, including those of copyright owners and content users, especially in today’s dynamic technological environment. However, implication as a process is contentious and there are no established principles for implying copyright licences. The resulting uncertainty has led to incoherence, diminishing the value of implied licences in judicial reasoning. This book develops a methodical and transparent way of implying copyright licences, based on three sources: the consent of the copyright owner; an established custom; and state intervention to achieve policy goals. The frameworks proposed are customised separately for implying bare and contractual licences, where relevant. The book goes on to analyse the existing case law methodically in the light of these frameworks to demonstrate how the court’s reasoning can be made transparent. Underscoring the contemporary relevance of implied licences, the book tests and validates the methodology in relation to three essential and ubiquitous functions on the internet—browsing, hyperlinking, and indexing.

Introduction

This introductory chapter provides an overview of implied licences. Copyright confers exclusive rights on copyright owners to perform certain acts in relation to their works. A person infringes copyright if she performs any of these acts in relation to a copyright work without ‘the licence of the owner of the copyright’. Alternatively, the user’s actions must be covered by one of the statutory limitations or exceptions, which address specific instances of permitted use of copyright works to achieve specific policy goals. If, however, a certain use is not authorised by either an express licence of the copyright owner or by the statutory limitations or exceptions, it does not always amount to an infringement. It may be possible for courts to imply a copyright licence to cover such use. The strength of implied licences lies in their flexibility to address a diverse set of circumstances. This may prove particularly useful in resolving issues arising from the interaction of copyright with new technologies. Armed with this flexibility and the ability to respond in a case-specific manner, implied licences can bring about a better balance among the interests of different stakeholders within the copyright system.

Browsing and Streaming

This chapter explores the application of implied licences to browsing as an activity on the internet. In this process, in addition to temporary copies of the content made on screen and in transmission, copies are made in the buffer of the computer in order to facilitate uninterrupted access, even if the content is not downloaded. If each copy made in this process needs permission from the copyright owner, then it would significantly impede the functioning of the internet. If browsing is not authorised, it would make infringers out of millions of users for simply viewing websites. The UK’s response has been to subsume this process into the statutory exception under section 28A of the Copyright, Designs and Patents Act 1988, which was transposed from Article 5(1) of the EU Infosoc Directive. This provision, however, suffers from inadequacies owing to certain inherent inflexibilities particularly apparent in relation to browsing of infringing content. This chaper argues that implied licence can offer a more flexible and dependable avenue to resolve the temporary copying issue, rather than the statutory exeption.

Final Remarks

This concluding chapter explores the advantages of implied licences not only in the offline, but especially in the online world. It sums up the justifications for the conception of ‘implied’ and ‘licence’ adopted in this monograph. It also explains how when faced with the facts and circumstances of a case, how one may ascertain which basis for implying a copyright licence might apply. While acknowledging that express words can override implied licences, it explains why it is not a significant limitation on the usefulness of implied licence, arguing that implied licence can and will continue to play a significant role in copyright law. The growing body of case law on implying a term into a contract is a testament to the fact that there are never going to be complete or comprehensive contracts. There will always be the need to fill in gaps, by way of implying licences based on the conduct of the copyright owner or to give effect to a custom or a policy. The chapter then looks at how implied licences have the potential to play a greater role after the Exit Day.