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N. 7, Feb - Mar 2003
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 | IP & RTD: Articles
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| The new US Teach Act - a model for the freer use of copyrighted works in science and education?
Michael Veddern
Institut für Informations, Telekommunikations und Medienrecht (ITM), Munster;
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The development of an innovation- and knowledge-based economic and social order demands the communication and transfer of information, knowledge and know-how. The driving forces of this process are, in particular, science, research and education. In order to guarantee further development and communication of our present knowledge, science and education must use the constantly increasing, global pool of existing information and knowledge.
This information and knowledge are only available for general access when they have found concrete expression in analogue or digital form. As perpetually having to reformulate underlying ideas and principles would excessively handicap transfer of knowledge in science and education, it is in the interest of a knowledge-based economic and social order to give free access to information and knowledge in the existing concrete forms.
Admittedly, this is in direct contrast to the rights and interests of the authors and publishers. While - from the point of view of copyright law - the underlying ideas and principles belong to the public domain, the concrete information based on such ideas and principles is subject to the exclusive exploitation rights of authors and publishers. As a result of this, every use in analogue or digital form has to be granted by the right-holding authors, publishers or collecting societies and is, therefore, commonly not free of charge.
The conflict between the rights of authors and exploiters on the one hand and the interests of the free transfer of knowledge in science and education on the other hand are solved by the national copyright laws by making exceptions in favour of science and education, to allow the free use of copyrighted works. The most important examples in the field of science are the right to quote, and the right to make copies for the purposes of scientific research.
Similar exceptions are traditionally guaranteed by the national copyright laws of the EU Member States in the field of education. They are mostly designed for the "classic" types of face-to-face instruction in schools and universities, and normally allow only limited kinds of usage and/or the usage of only certain types of works, or small parts of works. Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society allows the implementation of exceptions to copyright for digital or analogue usage for the purpose of illustration in teaching or scientific research. As these exceptions to copyright are mentioned in the Directive as being optional (i.e. each Member State has the option of implementing them or not), it is foreseeable that the Member States will retain their current systems of limited exceptions and complete them with some exceptions for digital usage.
What a scheme for the freer use of protected works in the field of science and education could look like is illustrated by the Technology, Education and Copyright Harmonization Act (Teach Act), enacted by the U.S. Congress on 3 October 2002. The purpose of the Teach Act is to permit the free use of copyrighted materials in distance education, especially via the Internet, and at the same time to guarantee the rights of authors and publishers by means of strict formal and technological requirements.
The Teach Act allows government body and accredited nonprofit educational institutions to transmit and display almost all types of non-dramatic work in the context of mediated instructional activities. As there are no constraints concerning the location of reception, students have the possibility of receiving the virtual lessons anywhere.
In order to use the privileges of the Teach Act, educational institutions have to meet the following conditions:
- transmission, performance and display of copyrighted materials is made by or under the supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities;
- copyright guidelines have been created in order to guide the instructors and all other persons related to the distance education programme;
- detailed copyright information material has been provided to students, faculties, and relevant staff members, and students involved have been informed that the teaching material may be subject to copyright protection;
- technological systems have been created that permit access solely for students officially enrolled in the course for which the transmission is made,
- technological protection measures have been installed so as to prevent retention of the work by recipients of the transmission for longer than the class session;
- technological protection measures installed by the right holders remain unaffected; and
- maintenance of the content on the network for availability to students for a longer period than is reasonably necessary to facilitate the transmission is forbidden.
The U.S. Teach Act shows that technological measures do not necessarily cause limitations of user rights. They can be used, together with strict instructions on who to deal with copyright, in the interests of users, by guaranteeing limited access to privileged users for certain purposes and at certain times. It is debatable whether similar regimes could aid other aspects of science and education. Whether or not such regimes are practicable remains to be seen.
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