One of the consequences of the pandemic induced by the spread of the Chinese virus is the education system has been thrown out of gear. For nearly a year, the students are not attending classes on campus or at best attending the classes online. To the young, the distraction perhaps would be one too high as they seek to build their classroom attention once again in the months to come. At another level, the personalisation the teachers create is morphing into a very different domain. While there are these issues to be discussed and tackled, one issue that merits attention would the question of copyrights and the intellectual property (IP) as one shifts to online delivery. Since education is by and large brick and mortar despite the rising popularity of online courses. Those courses which are designed to be default by online naturally would have factored in the IP implications of the course material as also delivery. However, the current round of online classes are not something that was favoured or relished but thrust upon by circumstances. Therefore, it would be natural to discern the issues that confront the academic fraternity with reference to the copyright issues.
There is an interesting post titled “CovEducation, Copyright and Fair Use in India” published in SpicyIP blog. The author posits three issues for discussion. The issues are firstly whether the educational fair use provisions extend to the online domain as well. Secondly, the author seeks to raise the discussion on whether the video recorded classes that make use of the copyright material enjoy the same protection as physical classes. Thirdly, if the university libraries were to upload the digital version of the textbooks available for access to students receive the same protection under the copyright laws. The author goes to discuss at length these three issues under the ambit of the current Indian copyright legislation. While the piece on Spicy IP is about the legal side, the current post does not seek to delve on the same. The current post attempts to engage in a normative analysis on the likely IP creation and disruption in the digital age. The online delivery in the current model has been thrust, yet in all probability it will be here to stay and perhaps flourish in myriad of ways.
Education is primarily a club good. It is non-rivalrous but excludable. What schools and colleges have followed is primarily this model for ages. Students are admitted based on numerous criteria, fees being perhaps the most critical for the private institutions. Yet once admitted, the students getting the education in terms of classroom delivery is non-rivalrous. Online education too follows the similar dictum. It is a club good. The access is limited those enrolled for the course. The enrolment might be free or paid. Having secured the selection and subject to the payment of fees, the students get access to the digital key. There is an element of excludability built into the system. The modes might be different, but certainly excludability does exist. Yet, as students are enrolled into the digital classrooms, the delivery would non-rivalrous. The delivery whether copyrighted or otherwise is subject to fair use regulations in a club good ecosystem. the same club good ecosystem instead of physical boundaries is now being transferred into the digital domain. It is hardly a case that the lectures are available online. Barring a few, almost all restrict the access to the resources to the outsiders. The element of copyright violation would arise in the context of public access to classroom delivery which is non-existent. Thus fair use doctrines should apply to the digital classroom teaching except that students instead of in one place are diffused across multiple geographies.
The second issue is basically an extension of the first. In the absence of access to resources, the students are expected to seek digital resources. The faculty might post these resources on the web. In particular, the platforms like YouTube might be preferred for posting the lectures. Since the lectures might contain copyrighted material, there would be possible infringement despite fair use doctrine in existence. Yet, the assumption that the resources are available to the public might be naïve or more of an exception. Institutions are profit-maximisers (despite non-profit credentials) and they are rarely available unless there are public institutions. The digital resources might be restricted for access barring those who are enrolled into the course. Possibly, even the alumni might not access to the course. In such a context, the copyright violations might not happen unless very strict and literal reading of the law happens. If there is a purposive interpretation, these materials are actually in private or rather club domain thus outside the purview of copyright infringement laws. Since the fair use doctrine permits usage in the physical context, the same would apply in the digital domain so long as they materials remain under restricted access. The club good characteristic seems to be come to aid in such circumstances.
Libraries are empowered to digitalise the physical records as long as it stays within their four walls if one were to term it metaphorically. These were permitted under fair use basically to protect against any damage to the physical copy, thus a provision for redundancy. Libraries across the world come under fair use. The shape of the library itself is changing. In this context, the digital library will bring its own added value. Yet the copyright regulations in the context of the book publishing have prevented an emergence of a Netflix or a Blockbuster in the publications sphere. Yet, it would be a matter of time before the universe of books unshackles itself into the digital domain. In the instant case however, the digital library is accessible only to a select club and not something to the general public. The context too is emergent. In this case, given the nature of the good, the fair use doctrine should stand in good stead. It must be recognized that the copyright infringement would happen if the material under copyright are circulated under public domain. Yet, in the context, it is not the public domain that they are being circulated. They remain with the club. The online classes might have broken the geographical barriers. However, they have not broken the access barriers. The access remains confined to those enrolled. Therefore, the digital spaces have broken the physical spaces. There would be definitely not the same world as the analog universe would remain. Therefore, the copyright matters would perhaps be treated a similar manner as they were in the physical educational domain. Yet, as one observes history, given the IP maxmizers that exist, it would not be a surprise to see a challenge to these propositions. There would be certain litigation before the fair use contours are determined in the digital space of education. The space has changed, the media has changed, it would not be long before the IP paradigms that have been the fulcrum of education would too change.
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