India: Virtual Teaching And Copyright: How Fair Is Fair Use?

INTRODUCTION

Today information and communication technologies (ICT) are developing at a pace as never before seen, they reflect opportunities for creative interventions to help reduce the education gap. ICT may act as a bridge to transcend geographical limitations in education, enabling wider dissemination of learning materials as well as allowing for collaborative learning and production of learning materials. Education policies in today's time have begun to reveal this thereby acknowledging the significance of internet in the future of education.

In wake of pandemic and to contain spread of COVID – 19, many educational institutions; particularly colleges and universities had to switch from classroom teaching to virtual teaching or distance education. However, one of the key challenges to the unprecedented and unexpected shift to online education is the issue of Copyright.

In India, the law of Copyright protects expression of idea rather than an idea itself. Under Section 13 of the Copyright Act, 1957 copyright protection is conferred on literary, dramatic, artistic, musical cinematographic films and sound recordings.

Copyright denotes to "bundle of exclusive rights" conferred upon the owner of copyright by virtue of Section 14 of the Act. Such rights vests in the owner of the copyright i.e. the creator of the work and such rights can be exercised only by the owner or by a third party who has been granted a license by the owner of the copyright.

While the author of the work has the exclusive right over exploitation of his original work, the law of copyright permits certain uses without prior permission or specific authorization of the owner. These are referred to as the fair use or fair dealing provisions.

CONCEPT OF FAIR USE

The term "Fair Use" denotes as an exception to the exclusive right of copyright granted to the author of the literary work. Fair use allows reproduction or use of copyrighted work in a manner which does not amount to infringement of copyright.

Fair use, as an exception, follows from the Doctrine of Equity which enables and allows the reproduction or use of the copyrightable or copyrighted works, which would otherwise have been prohibited and amounted to infringement of copyright. The said doctrine clearly demarcates between the legitimate and bonafide fair use and deliberate copy of the copyright work.

Henceforth, Article 13 of TRIPS clearly stipulates as under:

Since it is obligatory on the part of the member countries of WTO to comply with the Berne Convention on Copyright vis-à-vis TRIPS Agreement, this doctrine has been accorded and well placed in the Copyright Act, 1957.

Section 52 of the Copyright Act, 1957 stipulates permissible uses of the Copyright without specific authorization from the author. Therefore, the said Section allows legitimate use of the copyrighted work for educational, scientific and cultural advancement of the society.

Per se Copyright Act 1957 does not define the term "fair dealing" however, the Indian Courts in plethora of judgments have considered fair dealing as an exception and beyond the boundaries that tantamount to infringement of copyrightable work.

Also the Courts have referred the English decision of Hubbard v. Vosper and in the words of Lord Denning:

The Copyright Act, 1957 provides for an exhaustive list of actions under Section 52 which defines the scope of fair dealing. The primary objective behind the doctrine of fair use is benefit of the society to meet the ends of educational purposes. Therefore, as far as education institutions are concerned, photocopy of a book for the purpose of teaching or quoting a short passage for the purpose of explanation does not amount to infringement of copyright and is well protected under the doctrine of fair use.

VIRTUAL TEACHING AND COPYRIGHT

In India, educational materials are primarily used by the universities and education institutions in terms of translation, reproduction, communication, etc. in order to provide the students' best of the available knowledge in the most refined and categorical manner and therefore, the Doctrine of Fair Use extends protection to educational institutions under Copyright Act, 1957.

Further, Section 52(1)(h) clearly stipulates that anything which is reproduced by a student or teacher specifically for the purpose of studies in an educational institution does not amount to infringement of copyright. Further Section 52(1)(g) states that even if the work is not a copyrighted one, if published as a collection with a bonafide for a the purpose of teaching in the education institution, the same will not amount to infringement of Copyright.

Although the Copyright Act, 1957 does not explicitly discuss photocopying as an exception to infringement of copyright however, considering the technological advancement and the age of digitization in which we are presently into, education cannot be confined to the four walls of a class room. Therefore, virtual teaching and web-based learning has evolved with the passage of time and the major challenge that comes up is the protection of copyright.

Due to emergence of information technology, on a single click, millions of copies can be generated and the information can be circulated across the globe. This revolution in digital era has enhanced the ability of the educational institutions to reproduce, distribute, publish and alter the content as per their customized needs. This has brought in news challenges for the protection of copyright.

The major challenge in copyright law is that of accessibility to copyright work. Since the web-based learning is borderless whereas the copyright protection are territorial in nature. Thus, the onus lies on the educational institutions to safeguard themselves in the name of Doctrine of fair dealing for education and research purpose. Institutions ought to work out the strategy with content providers to develop a mechanism for fair use during the course of virtual teaching in the digital environment.

CONCLUSION

In the present digital era, where medium to exchange any kind of information is dependent on technology; learning and education is no behind. In the wake of current pandemic situation, it is need of the hour of the wherein web-based or e-learning is encouraged. A mixture of traditional education system with contemporary IT based system reflects a paradigm shift in the education sector. Higher usage of internet in education ensures the maximum outreach of web-based learning for students as well as the teachers.

However, at every step of development there are risks ahead and in the present context, web-based learning foresees the infringement of copyright. The provisions of Copyright Act, 1957 with regard to fair dealing does safeguard the education institutions in terms of traditional approach of education but are insufficient and inadequate and fails to extend the protection of copyright in light of distance learning or web-based learning.

Therefore, the legislators must realize the prospective outcomes of distance education and digital access and should aim for widest possible exceptions that will enhance the innovative solutions to the existing challenges being faced in the industry and thereafter introduce new legal provisions in the Copyright Act.

This content is purely an academic analysis under "Legal intelligence series".

© Copyright AMLEGALS.

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