[A2k] Are copyright L&Es for online education and libraries enough?

Heesob Nam hurips at gmail.com
Thu Apr 16 08:57:18 PDT 2020

In response to COVID-19, most of schools and libraries are closed and
teachings are undertaken online. But many teachers who are preparing
online educational materials worry about the possibility of copyright
infringement. This is the case in jurisdictions where L&Es for online
education are well provided in the Copyright Act. For instance, the
Korean Copyright Act permits schools to transmit part of copyrighted
works to the extent that it is necessary for teaching purposes. This
permission, introduced in 2006 to encompass online courseware, may
extend to the transmission of the whole work if it is deemed
inevitable. However, it’s not easy for teachers to determine if the
inevitable prong is applied to their prepared materials. Also
difficult is the exact amount of the allowed part and the meaning of
the teaching purpose. (For country survey on L&Es for online learning,
see Mike's blog http://infojustice.org/archives/42200).

Open-ended fair use clauses may provide additional exemption. But fair
use has the same drawback as the specific L&E provisions for online
education. Every teacher must determine the possibility of (non-)
infringement of copyright of her prepared educational material. So
teachers have to take a risk and responsibility. One way to address
this problem is to introduce in copyright law such provisions that are
similar to government use (or crown use) provisions in patent law.
Under the government use provisions, third parties who are contracting
the government may use copyrighted works without prior investigation
of the existence of copyright and applicability of L&Es, and copyright
holders may only ask a compensation to the government.

The schools can be the contracting third parties when they have to
provide online classes by the governmental measure to close the
school. Libraries can also enjoy these provisions, when they provide
users a remote access to their collections.

Heesob Nam, PhD

Representative and chief researcher, Knowledge Commune
Director, Commons Foundation
T: +82 (0)2 796 1839
M: +82 (0)10 3925 2797
hurips at gmail.com, heesobnam at commons.foundation

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