Copyright And Fair-Use In India During Covid-19

Introduction

The global corona-virus pandemic, as well as the accompanying lockdowns, has flipped our lives upside down. The present-day norms include social isolation, employment from home, and online courses. While we adapt to our new normal, questions about how copyright law relates to online education have arisen. This article examines Indian law’s stance on copyright issues that have emerged in other countries in the wake of online teaching and the extent of educational fair use laws.

Fair Use Exception in India

Section 52(1) of the Copyright Act includes acts that do not constitute copyright infringement. The use of copyrighted material for educational purposes is exempted under Sections 52(1)(h) through Section 52(1)(j), which is decided on the purpose and manner of the use of the copyrighted work stated therein. The ‘four-factor’ approach employed in other countries, such as the United States, to determine fair use does not apply under Indian law.

The Hon’ble Delhi High Court’s historical judgment of The Chancelleor, Masters and Scholars of University of Oxford & Ors. v. Rameshwari Photocopy Services & Ors., also known as the famous ‘DU photocopy case’, emphasized the fair use and dealing of copyrighted matters under Section 52(1)(a) of the Act. There was a detailed explanation of what is covered by the educational exception and how the exception should be interpreted in the light of the objective it aims to accomplish. Section 52(1)(i) allows a teacher or student to reproduce any work in the course of teaching (among other purposes). The Court ruled that the amount or quantity of the material utilized does not matter as long as it is reasonably required to operate it for educational instruction in evaluating the permissibility of copyrighted work use under this exemption. According to the Court’s broad reading, the term ‘in the course of teaching’ refers to any action that comes within the scope of delivering educational instruction, both before and after the actual act of lecturing.

Fair Use and Online Teaching

• Is internet teaching covered by the educational fair use provisions?

Educators have expressed worries about whether copyright law’s educational exceptions apply to online schooling. As the physical classroom setting is no longer applicable to students owing to the ongoing pandemic, the main concern is whether reading books to a student in online video courses amounts to copyright violation or not. While the exception under the Indian Copyright Act does not expressly include ‘online education’, the scope of Section 52(1)(i) is not limited to classroom teaching. Still, it consists of the entire process or program of education in a semester, including online education, as clarified by the DU Photocopying case. In any event, classroom education would include online courses since the shift in the medium was imposed upon us as a result of the pandemic and is now the primary replacement for conventional physical practices. Beyond that, as long as the replication is demonstrated to be required for educational teaching (even if outside of classrooms), the exemption will apply, regardless of the medium of usage.

• Do copyrighted materials used in video recorded courses have the same protection as those used in real courses?

Due to problems with Internet connections, live courses have proven to be impractical. As a result, instructors are posting recorded videos on widely utilized platforms such as YouTube, where these videos can be viewed at any time and shared more easily. While face-to-face education allows for greater freedom in copyrighted content presentation and distribution, this may not be the case with recorded recordings.

The term ‘publication’ is defined in Section 3 of the Copyright Act as “making a work publicly accessible via copies or by conveying the work to the public.” The teaching videos uploaded on YouTube and similar online platforms fall within the ambit of the given definition of ‘publication’. This availability would be further subjected to Section 52(1)(h), which restricts the use of copyrighted works in such publications to two short passages from the work (unlike Section 52(1)(i), which does not specify a limit on the amount of material reproduced). 

While this restriction may be more challenging to overcome, exceptions to penalties may be argued for in some situations. Anyone may submit a copyright takedown request against platforms such as YouTube, which provides fair-use protection.

There is a good possibility this will discourage educators from using the platform in near future, which is arguably more user-friendly than others. While obtaining rights from the copyright owner or seeking a license is a possibility, both are time-consuming processes that may not be possible at this time. Uploading lecture videos tagged as “unlisted” so they do not appear on YouTube’s public sites or replacing copyrighted content with open access materials for recorded lectures maybe two methods to get over this stumbling block.

• Will university libraries be protected if they upload a digital duplicate of a physical library’s textbooks to the digital library?

The distribution of copyrighted content via digital libraries is an issue of concern apart from the usage of copyrighted content in online courses. The course materials for class discussions, library resources for research work, project making and other co-curricular activities should be made available to university students as they are forced to stay off-campus due to the ongoing situation.

Even in such emergency circumstances, the Copyright Act regrettably falls short of addressing concerns about building up digital libraries. The Copyright (Amendment) Act, 2012 included Section 52(1)(n), which allows a ‘non-commercial public library’ to keep a digital copy of works for the purpose of preservation that it already owns a physical copy of. While this enables the preservation of a digital copy, it leaves open the question of whether or not that copy may be distributed or communicated. The questions which still remains unanswered are “Is it indicated in it, at least in cases when the physical copy is destroyed or otherwise unavailable (for example, during a lockdown)?”; “In case it is not indicated, what is the point of this clause?” Furthermore, the Copyright Act uses different words like ‘library’, ‘non-commercial library’, and ‘non-profit library’, which adds to the uncertainty over whether university libraries are protected or not. On a more positive note, digital libraries such as JSTOR are increasing their free material, which will go a long way toward guaranteeing online education continuity.

Comments

India is one of the most affected nations with Covid-19, the copyright concerns cannot be the priority focus at this moment. The pandemic has heightened our need to consider copyright legislation that is more aware of digitalization and more prepared for unusual circumstances. The overnight shift to online education reflects the need for foresight within the Indian Copyright framework for a scenario that is here to stay, at least for the time being. The issues that need to be addressed are:

• A balance needs to be maintained between educational fair-use exceptions and the rights of copyright owners. The Legislature should enact measures to ensure education is not hampered in any given circumstance, be it ambiguities regarding the application of exception under the Act or the change in the medium of instruction for education.
•  Digital libraries are of utmost importance, especially for high-school students. So, the legislation governing conventional libraries must be updated to address the digital world completely since the law governing digital places is woefully insufficient. There are a lot of questions like ‘numerous people accessing the same resource’, ‘copyrighted works being available on the web via digital libraries’ among others, which remain unanswered due to the loopholes in the current legislation.
• The fact that copyright problems are still a concern during a pandemic demonstrates that law and policy have not adequately considered unusual circumstances. While one may not immediately link copyright law to a national crisis, the capacity to restore normality right now is mainly dependent on our ability to carry out those activities that we can within our geographical confines – education being the most essential of them.
• The making of academic materials accessible to students through the internet, at least in the same way as physical resources were (library borrowing, copying, etc.) is critical. For example, in an emergency, fair use provisions could be expanded to allow schools and universities to migrate their library catalogues to digital databases or online repositories, share course materials and lecture recordings, and so on, without having to wait for licensing or permission from copyright owners.

Conclusion

In the current era, when almost everything has been digitalized and is dependent on technology, learning and education cannot be left behind. The present pandemic situation makes it obvious to promote e-learning methods. The conventional schooling system, when combined with the modern IT system, can bring about a large change in the education system of our country.

However, there are dangers at every stage of growth, and in this case, web-based learning foresees copyright infringement. The provisions of the Copyright Act of 1957 with respect to fair dealing protect educational institutions in terms of conventional approaches to education. However, they are insufficient and inadequate in light of distant learning or web-based learning.

As a result, legislators must recognize the potential outcomes of distance education and digital access, and they should strive for the broadest possible exceptions that will encourage creative solutions to the industry’s current challenges and then introduce new legal provisions in the Copyright Act.