Eoin O’Dell, Trinity College Dublin, CEARTA.IE, Link (CC-BY-NC)

I work in Trinity College Dublin, which announced on Tuesday that education would be delivered online from next Monday. The National Forum for the Enhancement of Teaching and Learning in Higher Education has put together a very useful spreadsheet of links to useful online teaching resources. But, in our race to go online in time to deliver classes to our students, we must not forget that copyright law continues to apply. In that regard, I’m delighted to note that recent reforms to Irish copyright law will make all of our lives easier. The Copyright and Other Intellectual Property Law Provisions Act 2019 (also here) [COIPLPA] amended the Copyright and Related Rights Act 2000 (also here) [CRRA] in various significant ways, in particular relating to online educational uses of copyright material.

Section 50 CRRA provides for an exception of fair dealing for the purposes of research or private study, section 53 provides for an exception for acts done for the purposes of instruction or examination, and section 57 provides for an exception for reprographic copying by educational establishments. Article 5(3)(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10–19) [the InfoSoc Directive] provides that Member States may provide for exceptions or limitations for the sole purpose of illustration for teaching or scientific research. To give full effect to this provision, in 2013, the Copyright Review Committee [CRC] recommended that section 50 be amended to cover “education, research or private study”, that section 53 should be amended to cover “education and examination”, that section 57 be comprehensively amended to provide for “illustration for education, teaching and research”, and that new sections be added to provide for distance learning provided by educational establishments and for the use by educational establishments of work available through the internet (compare the amendments in Canada’s Copyright Modernization Act, 2012).

Section 2(2)(d)-(e) provides expansive definitions of “education” and “educational establishment”; there is no amendment to section 50 CRRA; but Section 45 and Schedule 1 COIPLPA amended section 53 CRRA; and section 15 COIPLPA comprehensively replaced and expanded section 57 CRRA as the CRC had recommended, (as follows, in part):

15. The Principal Act is amended by the substitution of the following sections for section 57:

Illustration for education, teaching or scientific research
57.(1) … it is not an infringement of the rights conferred by this Part—

(a) to make or cause to be made a copy or communication of a work for the sole purpose of illustration for education, teaching or scientific research or of preparation for education, teaching or scientific research, or
(b) for an educational establishment, for the educational purposes of that establishment, to reproduce or cause to be reproduced a work, or to do or cause to be done, any other necessary act, in order to display it.

(2) Subsection (1) shall apply only if the reproduction or communication is—

(a) made for purposes that are non-commercial,
(b) made only to the extent justified by the non-commercial purposes to be achieved, and
(c) accompanied by a sufficient acknowledgement. …

Distance learning provided by educational establishment
57A. It is not an infringement of the rights conferred by this Part for—

(a) an educational establishment, for the educational purposes of that establishment, to communicate a work as part of a lesson or examination to a student of that establishment by telecommunication, and
(b) a student who has received such a lesson or examination to make a copy of the work in order to be able to listen to or view it at a more convenient time.

Use by educational establishment of work available through Internet
57B.(1) Subject to subsection (2), it is not an infringement of the rights conferred by this Part if an educational establishment, for the educational purposes of that establishment, makes a copy or communication of a work that is available through the Internet.

(2) Subsection (1) shall not apply unless the copy or communication of the work concerned is accompanied by a sufficient acknowledgement. …”

Licensing schemes for educational establishments
57C. (1) An exemption in respect of education provided in section 57, 57A, 57B, 61(2), 62(2), 67(3), 92, 221, 225B, 225C, 225D, 229(2), 234(3), 245(3)(a) or 329 shall not apply where—

(a) there is a licensing scheme certified under section 173 that is applicable to the exemption concerned, and
(b) the person making use of the work knew or ought to have been aware of the existence of the licensing scheme.

(2) The terms of a licence granted to an educational establishment on foot of a licensing scheme certified under section 173 shall be void in so far as they purport to restrict the proportion of a work which may be copied or communicated (whether on payment or free of charge) to less than that which would be permitted under section 57, 61 or 62, as the case may be.

(3) Sections 152 to 155 shall apply in relation to a licensing scheme referred to in subsection (1)(a) as if the scheme were one to which those sections applied pursuant to section 150.”

[Update]: Although it is understood that work is advanced on the preparation of a new licensing scheme, no licence pursuant to section 57C has yet been certified under section 173 CRRA (also here) as amended by section 28 COIPLPA (also here). However, the ICLA’s pre-existing licences cover a great deal of the ground comprised in sections 57-57B. As the Department of Education and Skills points out in Circular 0071/2019 (pdf):

Pending the introduction of a new licensing scheme, the existing scheme, which is operated by ICLA, will continue to operate as normal and at the current rate. … The existing licensing obligations on educational establishments … require all primary, post-primary schools and further and higher education establishments to use and pay for educational licences (provided by the Irish Copyright Licencing Agency) which allow them to make copies of copyright protected material for
various uses in the provision of education.

The existing licensing obligations remain in force until any new licensing scheme is developed, and subsequently certified by the Minister for Business, Enterprise and Innovation, to replace the existing scheme.[/Update]

This means that much online education is not an infringement of copyright. Of course, our experience in the near future may point up some necessary further amendments. And we will have the opportunity to do so. The InfoSoc Directive has recently been amended by Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ L 130, 17.5.2019, p. 92–125) [the DSM Directive]. Article 5 provides for an exception for digital and cross-border teaching activities that is very similar to the CRRA amendments worked by section 15 COIPLPA. The Department of Business, Enterprise and Innovation has conducted a consultation on the transposition of the DSM Directive. That transposition will be the ideal opportunity to amend sections 57, 57A and 57B CRRA (as inserted by section 15 COIPLPA) if that should prove necessary in the light of our current enforced experiment with widespread online education.

Meanwhile, take care, be safe, and stay well.