Copyright in English language teaching

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Revision as of 14:05, 5 August 2008 by Bob M (talk | contribs) (So, what can I use in class?)

The posting of copyright material on this site is prohibited.

Disclaimer

The following notes are the non-binding, totally un-authoritative opinions of some members of this site. Readers are strongly encouraged to take professional legal advice and not to rely on these musings. Those wishing a deeper understanding are also encouraged to click the links at the bottom of this article. You should also be aware that copyright legislation differs between jurisdictions.

What is copyright?

In essence copyright is about the ownership of original works. Such an original work may take differing forms including - but not limited to - text, audio recordings, images, computer software, films and music. Copyright comes into existence immediately upon creation of the original work; the author does not need to make any special provision in order for them to have copyright protection. The copyright owner may licence the work for use by third parties.

Copyright continues to exist for decades after the death of the original author. The exact period of time depends on the juristiction.

When is something covered by copyright?

Although laws differ between jurisdictions, in general anything which is published by an individual or an organization is covered by copyright legislation in some way. Only the explicit placing of a work in the “Public Domain” removes copyright protection. (Anything posted on Teflpedia is explicitly placed in the public domain.)

In other words, the default situation is that a work is covered by copyright unless it is explicitly placed in the public domain.

Anything published in a newspaper, or on a web page, broadcast on the radio, and MP3 files are all covered by copyright legislation.

So, what can I use in class?

If you are an institution or a materials creator you need to be very careful, study the appropriate legislation, and make sure you get permission when necessary.

However if you are a private teacher involved in face to face teaching activities you may have an escape under the "Berne Convention;" which explicitly allows for copyrighted material to be used without prior permission in teaching situations. [1] Most developed countries, including the USA, are covered by the Berne Convention. [2]

The convention states:

“Art.10.2.- It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice”[3]

This has been interpreted in different ways in different countries but many legislations seem to allow the following under face-to-face classroom situations:

  • Copy and distribute articles for use in class.
  • Play MP3’s in a classroom situation.

What you cannot do is format these things into a textbook and sell it without permission, as this would not be "fair practice".

It seems that you should also avoid using the same copyrighted material year after year.

Finally, the above does not give you the right to photocopy course books or copy course CD’s.

In order to see what is allowed in the area where you teach please refer to the Country area information at the bottom of the page.

Implications for this site

Whereas you may be able to use copyright materials in class, publishing a class based on copyright material on a website would be a violation of copyright. So that great class you created based on that wonderful newspaper article which tied into the song by what’s-his-name you got from YouTube can’t be uploaded here.

Which is relevant - where I live and teach or where the work was created?

The Berne convention states in article 5:

(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

In other words, it's where you live and teach which is relevant.

Specific information by region or area.

Some areas have elected to interpret the Berne Convention more restrictively than others. Although in many cases we have copied the most important parts of the legislation here (justified by being "insubstantial copying" or less than 1% of the work copied) , teachers are encouraged to read the primary legislation which is linked from each article.

Europe

The text of of Directive 2001/29/EC states:[4]

  • Introductory point 14: This Directive should seek to promote learning and culture by protecting works and other subject-matter while permitting exceptions or limitations in the public interest for the purpose of education and teaching.
  • Article 3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: (a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;

The UK

The UK seems to have a slightly confusing law in this case. The UK Intellectual Property Office maintains that the law allows teachers to copy - as long as they don't use a photocopier or similar copying device.[5] This is in agreement with the UK legislation point 36 which states:[6]

Things done for purposes of instruction or examination


(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying -

(a) is done by a person giving or receiving instruction, (b) is not done by means of a reprographic process, and (c) is accompanied by a sufficient acknowledgement,

and provided that the instruction is for a non-commercial purpose.

Which would agree with the UK Intellectual Property Office statement. However section 36 states:

Reprographic copying by educational establishments of passages from published works: (1) Reprographic copies of passages from published literary, dramatic or musical works may, to the extent permitted by this section, be made by or on behalf of an educational establishment for the purposes of instruction without infringing any copyright in the work, provided that they are accompanied by a sufficient acknowledgement and the instruction is for a non-commercial purpose.

Section 34, and Section 189, Schedule 2 part 5 allows the playing or showing of sound recordings and films in educational establishments.

Teachers may wish to read the entirety of these sections in the original legislation which is linked below.

The webiste Information and Communications Technology for Language Teachers [7] has produced a comprehensive guide for the UK. [8] It also includes a large number of useful links.

Information on which license is necessary for various activities may be obtained at A Guide for Copyright Licensing at Schools[9]

Ireland

The Irish legislation states in section 53 that copying is permitted for educational uses as long as "the copying is not by means of a reprographic process". [10]

Spain

Spanish legislation articles 32, and, perhaps, 37 seem to allow the use of copyright work for educational purposes.[11]

Russia

Article 20 states:[12]

It shall be permissible, without the author's consent and without payment of remuneration, but provided that the name of the author whose work is used and the source of the borrowing are mentioned, to make a reprographic reproduction in one copy and without gainful intent:....if the reproduction is the work of an educational establishment and the copy obtained is intended for classroom use.

Article 42 states:

1.Notwithstanding the provisions of Article 37 to Article 41 of this Law, it shall be permissible, without consent from the performer, the phonogram producer and the broadcasting or cable distribution organization, and without payment of remuneration, to make use of the performance or the broadcast or cabled program or the recording thereof, and to reproduce phonograms: ..... (2)for the sole purposes of teaching or scientific research;

Which would seem to mean that you can only make one paper copy but you can play films and videos.

Turkey

Sections 33, 34 and 80 would seem to give teaches the right to use copyrighted works. [13]

France

In "Chapter I" "General Provisions Art. L. 211-3." French law states:[14]

The beneficiaries of the rights afforded by this Title may not prohibit:...... - analyses and brief quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated;

Poland

Article 27 of the Polish law states:

Research and educational institutions shall be allowed, for teaching purposes or in order to conduct their own research, to use published works in original and in translation, and to make copies of fragments from the disseminated work for the same purpose.

Articles 28,29 and 30 also refer to educational institutions.[15]

Germany

Article 47 states about broadcast media states:[16]

(1) Schools and institutions for the training and further training of teachers may make individual copies of works which are included in a school broadcast by recording the works on a video or audio medium. The same shall apply to youth welfare homes and to the official provincial pictorial materials services or comparable publicly owned institutions. (2) The video or audio recordings may be used only for instructional purposes. They must be destroyed not later than the end of the school year following the transmission of the school broadcast, unless equitable remuneration has been paid to the author.

Article 53 states when referring to the taking of copies:

1. in teaching, in non-commercial institutions of education and further education or in institutions of vocational education in a quantity required for one school class or

2. for State examinations and examinations in schools, universities, non-commercial institutions of education and further education and in vocational education in the required quantity,

if and to the extent that such reproduction is necessary for this purpose.

Which would seem clear.

Holland

Chapter two article 11 of the Dutch copyright act states:[17]

There will be no infringement of the rights specified in Articles 2, 6, 7a and 8 if the actions relate exclusively to use as illustrations for teaching purposes, so far as justified by the intended and non-commercial purpose; Article 16, paragraph 1, at 1o, 2o, 4o and 5o of the Copyright Act 1912 shall apply to this, mutatis mutandis; Article 5 must be observed in relation to a performance.

Given the complexity of the references teachers would be advised to read the act carefully.

Australia

Australia has an excellent government resource which addresses any any question an an Australian teacher might have about copyright.[18]

It states in part:

The new flexible dealing provisions allow educational institutions to use all forms of copyright material for the purpose of educational instruction, provided that the use complies with a 3-step test, which is the standard set by international copyright treaties, of which Australia is a signatory. 'Use' would include copying, communication and other acts ordinarily covered by copyright.

In order to comply, the use must be non-commercial and:

* be limited to ‘certain special cases’; * not conflict with ‘normal exploitation’ of the work; and

* not ‘unreasonably prejudice’ the interests of the copyright owner.

However teaches are encouraged to read the entire site in full.

Asia

There is no Asia-wide agreement.

Israel

Article 19 states:[19]

(a) Fair use of a work is permitted for purposes such as: private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution.

Teachers are encouraged to read the whole article for clarity.

Japan

Article 35 of the Japanese copyright law states:[20]

A person who is in charge of teaching and those who are taught in a school or other educational institutions (except those established for profit-making) may reproduce a work already made public if and to the extent deemed necessary for the purpose of use in the course of lessons, provided that such reproduction does not unreasonably prejudice the interests of the copyright owner in the light of the nature and the purpose of the work as well as the number of copies and the form of reproduction.

Teachers should look at the excellent "Education and Copyright" site as it refers to Japan.

India

Article 52 states in part:[21]

Certain acts not to be infringement of copyright. (1) The following acts shall not constitute an infringement of copyright, namely, ...... (h) the reproduction of a literary, dramatic, musical or artistic work-..... (i) by a teacher or a pupil in the course of instruction;

However article 52 is long and complex and teachers are encouraged to read it in full.

North Korea

Article 32 states:[22]

A copyrighted work may be used without the permission of the copyright owner, in the following cases:....When a copyrighted work is copied, broadcast or adapted for school education.

South Korea

Section 6, article 23 states:[23]

(Use for Purpose of School Education) (1) A work already made public may be reproduced in textbooks to the extent deemed necessary for the purpose of education at high schools, their equivalents or lower level schools.

(2) Educational institutions established by special Acts, or the Elementary and Secondary Education Act, or the Higher Education Act, or those operated by the State or local governments may perform publicly or broadcast or reproduce a work already made public to the extent deemed necessary for the purpose of education.[5]

(3) A person who intends to exploit a work under paragraphs (1) and (2) shall pay the owner of authors' property rights compensation according to the criteria as determined by the Minister of Culture and Sports under the conditions as prescribed by the Presidential Decree, or shall deposit the same: Provided, That a public performance, broadcasting or reproduction of a work done under paragraph (2) at high schools, their equivalents or lower level schools is not obliged to pay a compensation.

China

Chapter 2, Section 4, Article 22 states:[24]

In the following cases, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced:..... (6) translation, or reproduction in a small quantity of copies, of a published work for use by teachers or scientific researchers, in classroom teaching or scientific research, provided that the translation or reproduction shall not be published or distributed.

Hong Kong

The Hong Kong government has produced a ten-page pdf Guidelines for Photocopying of Printed Works by Not-for-profit Educational Establishments.[25] Those working in Hong Kong will find much guidance there. It says in part:

(“the Ordinance”) provides certain limited allowances for copying of copyright works by educational establishments. However, the acts allowed should not conflict with a normal exploitation of the work by the copyright owner and should not unreasonably prejudice the legitimate interests of the copyright owner.

Audio recordings are included in this "printed works" guide.

Africa

There are no Africa-wide copyright agreements.

Nigeria

In its Second Schedule - Exceptions from Copyright Control, Nigerian copyright law states: [26]

The right conferred in respect of a work by section 5 of this Act does not include the right to control- .... (h) any use made of a work in an approved educational institution for the educational purposes of that institution, subject to the condition that, if a reproduction is made for any such purpose it shall be destroyed before the end of the prescribed period, or if there is no prescribed period, before the end of the period of twelve months after it was made;

The Americas

There is no Americas-wide copyright law.

Canada

Part three of Canadian copyright law, section 29.4 states:[27]

29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority

(a) to make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for displaying handwritten material, or

(b) to make a copy of a work to be used to project an image of that copy using an overhead projector or similar device

for the purposes of education or training on the premises of an educational institution.

However 29.5 allows the playing of sound recordings and 29.6 explicitly allows the playing of news items. Those interested should read all of clause 29.

The USA

Chapter one of the Copyright law of The United States in section 107 states: [28]

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

In addition to reading the base legislation The University of Maryland has a very good article [29] on the US situation and the University of Minnesota has explored other Scenarios[30]

The US Teach act should also be consulted. [31]

Other considerations

The vast majority of teachers will, no doubt, scrupulosity follow the copyright laws applicable to the country in which they live and work.

It is possible that some of those living in countries with more restrictive copyright laws will decide that those laws do not correctly reflect the Berne convention, and that such teachers will salve their consciences by following what the convention "really" meant. Others may wonder what the actual possibility is of the copyright police entering their classroom and asking if they have appropriate authorisation for a particular photocopy or MP3 file.

This wiki assumes that copyright-ignoring teachers are in the minority and that the majority of teachers are law-abiding.

References

  1. Copyright exceptions for teaching purposes in Europe
  2. countries covered by the Berne Convention
  3. full text Berne Convention
  4. Text of the European directive - teaching exemptions point 13 and article 3a
  5. UK Intellectual Property Office statement which allows copying - but not with a photocopier
  6. Complete text of UK legislation- see sections 32 and 36
  7. Information and Communications Technology for Language Teachers - Homepage
  8. Information and Communications Technology for Language Teachers - copyright
  9. UK - A Guide for Copyright Licensing at Schools
  10. Quite restrictive Irish copyright law
  11. Spanish legislation - see articles 32 and 37
  12. Russian copyright law - teaching exemptions under articles 20 and 42.
  13. Turkish copyright law - see articles 33,34 and 80
  14. French copyright law
  15. Polish copyright law - teaching exemptions under articles 27.
  16. German copyright law - teaching exemptions under articles 47.1 and 53.(3) 1 and 2
  17. Dutch copyright - Teaching exemption Chapter two, article 11]
  18. Comprehensive Australian guidelines for schools.
  19. Israeli copyright law - Educational exemption article 19
  20. Education and copyright in Japan
  21. Indian copyright law - teaching exemption article 52.
  22. North Korean copyright law - teaching exemption under article 32
  23. South Korean copyright law - teaching exemption under article 23
  24. Chinese copyright law - teaching exemption under Chapter 2, Section 4, Article 22.
  25. Hong Kong Guidelines for Photocopying of Printed Works by Not-for-profit Educational Establishments
  26. Nigerian copyright law - Second Schedule - Exceptions from Copyright Control
  27. Restrictive Canadian copyright law. See 29.4
  28. US copyright law - Fair use 107
  29. Clear article about the US situation from The University of Maryland
  30. Various copyright teaching Scenarios from The University of Minnesota
  31. The US TEACH Act on copyright

External Links