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Introduction
There is no denial to the fact that the coronavirus pandemic has turned everybody’s lives upside down. Since the norm currently has shifted everything to an online mode, Work from home and online classes have replaced physical offices and offline classes in school. Students are adjusting themselves to the remote way of teaching on various kinds of online platforms. Owing to this, a lot of legal issues have also cropped up. Online education has given rise to uncertainty as far as the copyright law is concerned. Various teaching materials in the form of slides, audios, videos, and texts are being for used for online covid education. These all come under intellectual property and can be protected with the help of copyright. In a physical environment, copyright is taken care of through physical copies which are purchased by the third parties. However, in an online setting, it becomes difficult to control the use of the material by third parties, including the students. The chances of copying, distributing, deleting and modifying the copyrighted course content increases many fold. Remote teaching imposes a major legal risk against the copyright holders which are the teachers. There can be countless e-copies of the teaching material that can be generated and that makes even more difficult for the copyright holder to control circulation. This article critically analyses the Indian position on the application of the copyright law on the online education and explores usage of ‘fair use’ provisions provided under the Copyright law.
LEGAL ISSUE
The term ‘fair use’ is an exception to the right of the copyright holder of the literary work created by him/her. It allows usage of the work other than the copyright holder in the form of reproduction and publication without it constituting copyright infringement [1]. This exception of ‘fair use’ is derived from the doctrine of equity which allows for the reproduction of the work which would otherwise have constituted infringement of copyright. This doctrine enables the use of the copyright work in a bonafide way for educational purposes.
Article 13 of TRIPS [2] clearly provides that ‘“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”. Hence complying with this international treaty, the doctrine has been accorded its space in the Indian Copyright Act in the form of Section 52. Copyright Act, under section 52 lists out some acts which do not constitute copyright infringement. The acts which can be classified as ‘fair use’ are contained in section 52(1)(h) to 52(1)(j). These are usages of copyrighted content for educational purposes [3]. The work to get the benefit of these provisions has to be made for the purpose and the manner specified in the section.
Judicial Perspective
There is a four factor test used in jurisdictions such as the United States to determine the fair dealing in the work. However, the Delhi High Court in the case of The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors [4]. [DU Photocopying Case] rejected this four factor test and held that the wording of the section has to be looked at to determine the fair use of the work. The case was related to the compilation of photocopies of the portions from the books in the syllabus of the students and its distribution by the educational institutions. The court held that this does not constitute copyright infringement under the Copyright Act 1957. The court stated that photocopying is a reproduction of the work by a teacher in the course of educational instruction and that does not amount to copyright infringement in light of section 52(1)(i) of the Act. The court also observed that as long as the work used is reasonably necessary to be used for the purpose of education, the extent or the quantity of the material does not matter.
Whether online teaching is included in the ‘fair use’ provisions of the Copyright law?
Now, the question which arises is whether this provision of educational usage of work extends to online teaching? Whether the copyright is infringed now when the classes have gone physical and students are reading and studying from either the audio or the video classes. If the language of the ‘fair use’ provisions is looked at strictly, it does not contemplate online teaching. Having said that, ‘fair use’ covers the entire process of education and is not limited to mere classroom/offline teaching. There has been a change of medium from offline to online due to pandemic and online classes can be said to be covered under classroom teaching. As also clarified in the DU photocopy case [5] , as far as the reproduction of work is done for educational purpose, the extent, the manner, the quantity of work reproduced does not matter. Thus, as long as the purpose of the work is educational instruction, the medium of education should be no bar and online education should be covered under the exception of ‘fair use’.
One of the major problems being faced in online education is the role of intermediaries because the course content is being uploaded by the teachers on an online platform. All the copyrighted material automatically gets stored on online platforms. Draft Information Technology [Intermediaries Guidelines (Amendment) Rules 2018 [6], provides that ‘intermediaries must deploy automated tools to identify and remove public access to unlawful content’. Additionally, the rules enable intermediaries to trace the originator of the material. The rules have not come into effect.
Clearly, Indian Copyright law lags behind when we look at the copyright law of other countries. For instance, educational institutions are defined under the Australian Copyright Law and it also covers various kinds of methods of educational instruction including education by correspondence. There is TEACH Act 2002[7] in the United States which covers copyright issues in online teaching. It allows usage of copyrighted work by the teachers without the payment of any royalty.
What Lies Ahead?
The current situation has shown the world that online teaching is the need of the hour and must be encouraged in this era of digital space. This has led to the paradigm shift in the education sector and undoubtedly it is here to stay. One way to look at it is now the education can be ensured even in remote areas with the usage and availability of internet. Technology and online platforms also play a significant role in exchange of information through an online mode. But as they say, with development, comes new challenges and so is the case with online education. Cases of copyright infringement filling the courts can be clearly foreseen in the times to come. While in physical classroom teaching, the educational institutions were provided a safeguard but the copyright law is not sufficient to extend the same protection to distance or online teaching and learning.
Conclusion
With the pandemic taking its peak and no signs of vaccine in the near future, countries around the globe are already suffering and thus there are bleak chances that the concerns of copyright infringement will be a priority anytime soon. But, nonetheless, this pandemic has taught us to be prepared for extraordinary situation like such and the importance of digital access and technology to keep things going. There is a need for planning the reformulation of the Indian Copyright law in the context of online education. The policy must look at balancing the rights of the copyright holders and the exception of the fair use provision under the copyright law. Though at present, the things seem to be working fine, but the legislature needs to ensure that in the coming future, because of the ambiguity surrounding the issue, the continuity of the education is not hampered and the courts are not over burdened with litigations of copyright infringement in online education sector.
References:
[1] Indian Copyright Act 1957 § 52.
[2]Agreement on Trade related aspects of Intellectual Property Rights 1995, Article 13.
[3] Supra Note 1.
[4] The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors, (2016) 160 DRJ (SN) 678.
[5] Ibid.
[6] Draft Information Technology [Intermediaries Guidelines (Amendment) Rules 2018.
[7] Technology, Education and Copyright Harmonization Act 2002.
