Copyright law has always had a close
relationship with media and learning. The world’s first copyright statute –
commonly referred to as the Statute of Anne 1710 – was ‘An Act for the
Encouragement of Learning’. As stated in the preamble, the Act was enacted to
prevent unauthorised printing and for the ‘Encouragement of learned Men to
compose and write useful Books’. In the 300 years that followed the Statute of
Anne, copyright
law had to adapt to rapid technological developments which made copying
easier, faster, cheaper and more and more accurate. Think of cameras, photocopiers,
home recording devices, smartphones and social media: copyright law had to
adapt (and still tries to adapt) to all these technological innovations without
losing its original function: to encourage learning and the spread of knowledge
while preserving economic and moral rights of authors and creators.
The need to strike a balance between
incentivising the creation of new works and allowing the public to learn from
and disseminate such works is one of the main reasons why copyright law is so complicated.
The way the copyright system tries to achieve its immediate goal – to
incentivise the production of new works – is exclusivity: copyright law gives
creators a set of exclusive rights to allow them to control the use of their
work and so earn from it. In this context, ‘exclusive’ means that copyright
owners can exclude others from using
their work without first getting permission. In a sense, copyright is the right
to say ‘no’ to anyone who wishes to copy your work. It is evident how
exclusivity clashes with the ultimate goal of the copyright system: the
encouragement of learning and the dissemination of knowledge. If copyright
owners had absolute control over their work, the production of new works may be
incentivised but their dissemination would be extremely limited. In order to
avoid the creation of monopolies over the use of creative works, copyright law
puts limits on the exclusive rights granted to creators. First of all, copyright
does not last forever: in most countries, copyright expires 70 years after
the author’s death. Second, copyright
does not protect ideas, but only the expression of ideas. Also, certain
uses of copyright protected works are allowed without permission because they
are considered to be socially, culturally, politically or economically
beneficial. These are known as copyright
exceptions and – among other things – allow the use of copyright works for
certain educational purposes.
So there are basically three ways to use media
in education and training without infringing copyright: i) using media that are
not protected by copyright (e.g. because their copyright term has expired or
because they were not protected by copyright in the first place); ii) using
copyright protected media with permission from the copyright owner (e.g. under
the terms of an educational licensing scheme or open licences such as Creative
Commons); or iii) using protected media under copyright exceptions.
The combination of educational licensing
schemes and copyright exceptions should mean that teachers and students do not
have to worry about seeking permission every time they want to use a copyright
work for educational purposes. However, both licences and exceptions have their
limits. On the one hand, using works under educational licences is safe but
reusing protected materials in the creation of new work (e.g. mash-ups or video
essays) is usually not covered by the licence. On the other hand, exceptions potentially
allow more extensive uses but relying on them to use protected works involves
risk management considerations. In fact, benefitting from exceptions often turns
on interpreting concepts that are ambiguous and situational, concepts such as
‘fairness’ or ‘illustration for teaching’. Teachers dealing with copyright
issues don’t like ambiguity though, they want black or white answers (e.g. ‘how
many seconds or minutes can I use from a film?’).
At Learning on Screen, we want to encourage
the lawful use of moving image and sound in education – both under licensing
schemes and copyright exceptions – by providing authoritative and
accessible guidance on copyright and creative reuse. Using innovative multimedia
resources, we help teachers and researchers understand the educational and
creative possibilities offered by the law with a view to enabling them to make
informed decisions on copyright issues. We believe that the ambiguous concepts
embedded in the legislation should be interpreted in a way that reflects
current teaching and research practice, and the education sector should play a
role in defining these concepts.
Join us for a discussion on ‘Law and the
educational video producer’ at the Media & Learning 2019: Video in Higher
Education conference.
Note: in the spirit of the conference, most
links within this article are to educational videos about copyright!
