Educational uses of copyrighted work: exceptions and public licences

This afternoon I had a very productive meeting with a nurse/educator at a teaching hospital. She was interested in learning more about the copyright issues associated with the use of medical images taken from the Internet in PowerPoint presentations. We discussed the educational exceptions in the Copyright Act, particularly section 30.01 that allows for the communication of lessons to students enrolled in a course, where the lesson contains copyrighted content; and section 30.04, permitting the reproduction and communication/performance of copyrighted works available through the Internet. (Both of these sections were added in the 2012 round of amendments.)

These exceptions are limited to use by educational institutions, which is defined in the Act as:

  • (a) a non-profit institution licensed or recognized by or under an Act of Parliament or the legislature of a province to provide pre-school, elementary, secondary or post-secondary education,

  • (b) a non-profit institution that is directed or controlled by a board of education regulated by or under an Act of the legislature of a province and that provides continuing, professional or vocational education or training,

  • (c) a department or agency of any order of government, or any non-profit body, that controls or supervises education or training referred to in paragraph (a) or (b), or

  • (d) any other non-profit institution prescribed by regulation

So what happens when she needs to present outside her home institution, for example, to a group of nurses at a non-profit, but non-teaching hospital in another part of the province? Does the exception follow her to the new group? It’s not altogether clear. On the one hand, the many conditions that accompany educational exceptions (as compared to fair dealing) suggest that the sections are to be construed narrowly, and limited to the particular institution, if not physically then at least in terms of who is being taught. On the other hand, the wording of section 30.04(1) could be interpreted to mean that the exception does follow the teacher:

… it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet: … (c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority [italics added]

One could argue that as long as the educational institution has authorized the lesson, the exception applies.

Of course, the above analysis might be moot if the use falls under the much broader fair dealing exception in the case of “off-site” presentations at non-teaching hospitals. There is also no need to engage in such a nit-picky inquiry if one uses material that is in the public domain, or is available under an open licence such as Creative Commons (CC) or GNU Free Documentation Licence (GFDL). Or perhaps there is a different set of nits to pick in this case?

Public domain material is not really a problem — it can be used freely for any reason whatsoever. All works created by the U.S. federal government are in the public domain, so much of what you would find in the image gallery of the National Institute of Biomedical Imaging and Bioengineering is useable without resort to a copyright exception. But it can get stickier when it comes to open licensed materials, particularly where one of the terms of use is to “share alike”. The GFDL, while not generally applied to images per se, provides that “You may copy and distribute a Modified Version of the Document under the conditions of sections 2 and 3 above, provided that you release the Modified Version under precisely this License…”  [italics added] Similarly, one iteration of the CC licence, CC-BY-SA (the SA stands for “share alike”) requires that when the material is incorporated into a new work, that new work must be licensed under identical terms.

In other words, if our nurse/educator wants to use images that are part of a work licenced under GFDL or CC-BY-SA, she must release her PowerPoint presentation under one of those licences. This doesn’t seem to be too much of a burden, and in terms of logistics it is not. She might be quite happy to do so. However, in order to licence a work for use by the public, one must be the actual copyright owner or have such authority from the copyright owner. In the Canadian Copyright Act, copyright in a work made in the course of employment is owned by the employer (section 13(3)). This default condition can be altered by an agreement, for example as part of an employment contract or a collective agreement. In a university setting, faculty are often “given back” copyright in their works in this way, generally through a collective agreement. For those who are not a part of a union, or whose employment contract does not address copyright, it cannot be assumed that the employee has ownership in the works she has created as part of her job. If she does not own the copyright, she cannot licence it herself, or authorize it to be licensed. This is the problem with using “share alike” public licences in the creation of new works for education purposes.

So what should our nurse/educator do? Look for images that are in the public domain, or those that do not come with a share alike term attached. Alternatively, she could ask the higher-ups about the copyright situation in general and how they will allow employee-created works to be used.

I like to promote the Wikimedia Commons as a source for freely-useable images. All of the images in the Commons are either public domain or publicly licensed. Some may be licensed under the CC-BY-SA scheme, but the share alike term is not a requirement. Unfortunately there does not seem to be an easy way to limit one’s search to non-SA licences and by subject, so it’s important to check each time. For medical images, OPENi (U.S. National Library of Medicine) is a collection of images from open access literature, and allows a search to be limited by type of CC licence. The Directory of Open Access Journals also permits a user to search for open access journals by subject matter and by licence.

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