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Will the pandemic force universities to address the challenges of copyright?

For Chris Morrison and Jane Secker the shift to online learning means educators and policy makers need to address copyright and licensing.
This article is more than 4 years old

Jane Secker is a Senior Lecturer in Educational Development at City, University of London

Chris Morrison is the Copyright, Licensing, and Policy Manager at the University of Kent

Higher education policies related to copyright and teaching have rarely been given much management attention in UK universities.

There is still considerable uncertainty about what material can legally be included in online courses, and many institutions struggle to communicate the complex world of copyright and licensing to their staff and students. Meanwhile the crisis has highlighted the challenges universities face in negotiating access to core readings in digital formats via commercial publishers. The current Covid-19 crisis presents both a challenge and an opportunity to develop policy and practice collaboratively and strategically.

The rapid shift to online learning following the closure of our university campuses has many consequences documented elsewhere. However, there is one consistently problematic area – does copyright law prevent teachers from sharing content online?

With the imperative to provide students with a high quality learning experience, you might think that copyright is last on the list of things to consider. However, it is almost impossible to teach in many disciplines without using material that is protected by copyright. And much content does not have clear terms of use for online teaching, something particularly problematic in subjects such as art history or film studies where a critique of creative works is vital.

While some academics consider copyright issues, the majority do not, most likely attempting to ‘fly under the radar’ whilst suspecting that they are infringing copyright. However, this is often the result of misunderstandings about how the law works.

Copyright in the university

There are two ways you can legally access and use copyright material: licences and exceptions.

Licences are permissions from the copyright owner and include the deals that libraries negotiate for access to e-books and e-journals, and collective licences that all universities pay for – such as the Copyright Licensing Agency (CLA) HE Licence and the Educational Recording Agency (ERA) licence. These centrally-negotiated collective licences involve the payment of fees to rights holders, and they help universities manage copyright compliance by allowing some content to be used in online learning. Open licences such as Creative Commons are also very important as these enable sharing of content, free of cost and with fewer restrictions on reuse than “all rights reserved” material.

Meanwhile exceptions are provided as defences in law that allow the use of copyright works without the copyright holder’s permission. The law includes provisions for teaching and research but these are subject to conditions, one of the most challenging being whether the use is “fair”. UK copyright law was last changed in 2014, bringing in a number of new or updated exceptions intended to support teaching in the digital age. Probably the most important of these is called “Illustration for Instruction” an idea which research suggests universities have interpreted in a variety of different ways.

Exceptional times

Exceptions provide a powerful supplement to licences when using copyright content in teaching. Recent academic analysis highlights the latent and potential flexibility the law provides for academics teaching in a time of pandemic. However assessing whether your online teaching is legal requires a certain level of what we would call copyright literacy and an understanding of risk management. It is unlikely that you can ever be 100 per cent sure that your teaching doesn’t infringe copyright in any way, which is one of the biggest challenges around communicating copyright issues to those designing and delivering learning.

The responsibility for interpreting copyright law and providing guidance for the academic community usually sits with a copyright specialist, most of whom are based in the university library. Since the start of the pandemic we have been running weekly webinars on issues around copyright and online teaching, open to all and hosted by the Association for Learning Technology. The webinars have provided the copyright community with an opportunity to discuss wider issues related to copyright and the shift to online learning with a number of expert guest presenters. Much of the discussion has focused on the problems with sourcing digital content and negotiating the licences which set out the conditions under which staff and students can access them online.

The challenge of providing digital learning resources is complicated by the variety of licence models, different pricing points and whether books are commercially available in electronic form in the first place. The current crisis has highlighted that some of the content used to teach students is only available in print and is sitting on the shelves of closed libraries. The CLA has recently made temporary changes to its HE licence to allow institutions to scan more from books and journals but its use is dependent on the practical limitations of digitising books and the ongoing cooperation of publishers and authors.

Authorship and access

But the acquisition of teaching resources by university libraries isn’t simply a question of procuring products at the best price from external suppliers. As our recent research shows, the majority of books digitised for teaching in the UK are written by UK academics. Copyright law is intended to give authors the right to make their work available in a way that remunerates them whilst ensuring their work is accessible to their audience. Our experience of talking to academic authors is that many of them would prefer their work to be made available open access. However, many authors sign publishing agreements that transfer copyright to commercial publishers who then sell the titles at prices only some libraries and few individuals can afford.

Developing an understanding of copyright and licensing is therefore an essential aspect of the debate around the creation and consumption of knowledge which is fundamental to equitable access to education. This is why we encourage institutions to consider whether their copyright related policies provide the conditions for good decision making.

We can certainly point to some good practice and policy positions being taken in higher education. At City, University of London we teach a module on digital literacy and open practices as part of the Masters in Academic Practice, and the University of Kent have developed an institutional copyright literacy strategy which will be launched this summer. Another project that we are working on with Learning on Screen is a code of fair practice that seeks to more accurately reflect what teachers do and align this with the provisions of UK copyright law. The first step in this is to look at the legal issues associated with using audio visual content.

However, we believe there are further opportunities to raise levels of copyright literacy across the UK HE sector and to address issues that previously have been swept under the carpet.

Copyright law remains complex, and an area of uncertainty where specific guidance about what is ‘fair’ is needed. Academics need to balance their desire to have their work recognised and formally published, with the greater requirement to have it openly available to all students, not just those with deep pockets or studying at wealthy institutions. This means at both the individual and institutional level more copyright literacy is required to support the brave new world of online learning. We urge university leaders to take this opportunity to engage with copyright in a responsible, critical and collaborative way.

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