Seng (2009)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Seng (2009)
Title: WIPO Study on the Copyright Exceptions for the Benefit of Educational Activities for Asia and Australia
Author(s): Seng, D.
Year: 2009
Citation: Seng, D. (2009). WIPO study on the copyright exceptions for the benefit of educational activities for Asia and Australia. Geneva: WIPO. Retrieved, 13(07), 2010.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: Data were collected through the analysis of the copyright exceptions for the benefit of educational activities that have been developed in the countries under review.
Data Type: Primary and Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • 2009
Funder(s):
  • WIPO

Abstract

This study, which is commissioned by the WIPO Secretariat, seeks to examine the copyright exceptions for the benefit of educational activities that have been developed in the countries under review. It also seeks to review the impact of technological measures on the exercise of these exceptions and the relationship between laws protecting the circumvention of technological measures and the educational exceptions.

Main Results of the Study

  • All of the 32 countries (out of 40 countries assigned to this study) with copyright legislations surveyed in this study have some form of exception for the benefit of educational activities. Most of these are formulated based on Article 10(2) of the Berne Convention. Although the details may differ, the first group of countries has exceptions that mirror the approach in Article 10(2), which is to provide a general exception to sanction the utilization of any work by way of illustration in publications, broadcasts or sound or visual recordings for teaching, to the extent justified by the purpose. This includes the use of a work for instructional communication. However, four countries have expressly limited their exceptions to reproductions only, and five have imposed the requirement of face-to-face teaching. This is likely to create an issue as regards the application of these exceptions for distance and e-learning.
  • The second group of countries has implemented the Article 10(2) exception through the enumeration of excepted aspects of educational activities as exceptions. The attendant conditions for these exceptions can vary in detail, but the excepted activities are chrestomathies, abstracts, educational performances and broadcasts, school textbooks, school rentals and examinations. In the absence of a general or catch-all exception in their legislation, countries adopting the “enumeration” approach may need to constantly update their copyright exceptions to deal with new uses of works as part of educational instruction. Given the increasing breadth and variation of educational curriculum, the choice of using a residual educational use exception based on the three-step test seems like a good solution.
  • Most countries have exceptions that exempt the personal or private use of works for research or private study purposes. However, concerns about book piracy have led a first group of eight countries that have broad “personal or private use” exceptions to exclude from the scope of their exceptions the reprography of the whole or a substantial part of books or musical works. The second group of countries addresses this problem with the concept of “fair use” that creates opportunities for individualistic determinations of permissible usage in each case. The tension between the potential for “fair use” to serve as a residual exception to permit unanticipated uses of works that add to social utility and to create much harm from its misuse by end users and consumers to collectively make multiple copies of works is unfortunately a tension that is inherent in the very principle of “fair use” itself (that of a relatively open-ended rule) which can be ameliorated with the recognition of various presumptions of “fair use” where the extent of the work copied is small or determined by the nature of the work e.g. an article in a periodical.
  • No less than 16 countries in the countries surveyed in this study have updated their copyright legislation with provisions to deal with technological measures. However, only a few have provisions to deal with the issue of possible breach of laws protecting the breach of technological measures for educational purposes. The growing proliferation of electronic books, compilations and databases that are digitally protected may pose challenges for educational institutions seeking to provide access to these legitimately acquired resources for instructional purposes (for instance, to enable multiple access or to make multiple copies of such works for distribution, when the technological measures only permit one copy to be made).


Policy Implications as Stated By Author

The complexities in this area of legislating for educational exceptions stem largely from the changes that technology is bringing to the field of education. New methods of instruction and new ways to disseminate and access knowledge and information present new opportunities for educators, researchers and students. This in turn drives new innovations and creates new markets for authors, scholars and publishers. In such an environment, both the education and the publishing industry should strive to work more closely together, facilitated by rules and policies that make this possible, because both can and should stand to benefit from the increasing size of the education market made possible by technology. After all, the relationship between both industries has always been, and will always be, a symbiotic one.



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 40
Level of aggregation: Country
Period of material under study: 2009