This document provides an overview of copyright law in education in Ireland. It discusses what works are protected by copyright, the rights of copyright owners, exceptions for fair use including education, and the UCC/ICLA licensing scheme which provides more permissive exceptions for copying in educational settings. It also covers original expression, moral rights, and remedies for copyright infringement.

1. May 15, 2014 1
Copyright law in Education
Dr Louise Crowley
Faculty of Law
University College Cork

2. May 15, 2014 2
Overview
• What is copyright?
• When is a work deemed to be original?
• Rights of copyright owner
• Fair Dealing Exceptions
– Education
– Criticism or Review
– Incidental Inclusion
• Reliance upon licenses
• UCC/ICLA – More permissive exceptions
• Rights of Employers – Institutional IPR
Policy
• Moral rights

3. May 15, 2014 3
What work is protected by ©?
• Copyright and Related
Rights Act 2000
• Section 17
– Original literary, dramatic, musical
or artistic works,
– Sound recordings, films,
broadcasts or cable programmes,
– The typographical arrangement of
published editions,
– Original databases

4. Literary work
• Covers any work that is expressed
in print or in writing
• Does not mandate a high
standard of style or quality
• Necessitates some level of skill or
effort – “unintelligible scribblings”
were deemed not to constitute a
literary work as they lacked any
effort or information (Fournet v
Pearson)
May 15, 2014 4

5. May 15, 2014 5
What is Copyright?
• Copyright is a property right
• Automatically subsists in an
original work
• Permits the copyright owner to use
and/or authorise others to use
• Automatically prevents others
from using the protected work
• Subsists automatically – no need
to declare or register
• Life of author plus 70 yrs

6. May 15, 2014 6
Original expression
• Requires evidence of the author’s skill and
labour
• The originality which is required relates to the
expression of the thought…the work must
not be copied from another work; it should
originate from the author.
• Detail of expression impacts upon
assessment of originality
• Relatively low threshold
• No protection of ideas or principles
• Protection lies in the expression of the idea

7. University of London Press v
University Tutorial Press Ltd [1916]
• “The word original does not in this
connection mean that the work must
be the expression of original or inventive
thought. Copyright Acts are not
concerned with the originality of ideas,
but with the expression of thought, and,
in the case of ‘literary work’ with the
expression of thought in print or
writing....the Act does not require that
the expression must be in an original or
novel form but that the work must not
be copied from another work – that it
should originate from the author.”
(Peterson J)
May 15, 2014 7

8. Low threshold
• Various authorities – matter of the
interpretation of work in question
• “Work must show no literary or other
skill or judgment...but must originate
with the author” (Australia)
• Often arises in relation to
compilations – where the work is not a
copy of an existing compilation and
required skill and discretion
• Is a derivative work but often still
attracts copyright protection
May 15, 2014 8

9. May 15, 2014 9
Positive rights of copyright owner
• Exclusive right to use or to authorise others to
use
• Copy the work
• Make work available to public
• Distribute the work
• Make an adaptation of the work

10. May 15, 2014 10
Prohibited Acts
• Persons other than the copyright
owner are prohibited from the
following acts:
– Reproducing the work
– Publishing the work
– Performing the work in public
– Broadcasting the work
– Making an adaptation of the
work

11. May 15, 2014 11
Exceptions to © protection
• Statutory provisions
• Fair dealing
• Research or private study
• Criticism or Review
• Incidental inclusion
• Education
• Agreed Licences

12. May 15, 2014 12
Fair Dealing
• Governed by statute and common
law
• Chapter 6 2000 Act - sections 49-52
• Express parameters on the concept
– Research and/or private study
– Criticism or review
– Incidental inclusion

13. May 15, 2014 13
Research or Private Study
• Relates to a literary, dramatic, musical
or artistic work, sound recording, film,
broadcast, cable programme, or non-
electronic original database
• Work must already have been lawfully
made available to the public
• Use must be for a purpose and to an
extent which will not unreasonably
prejudice the interests of © owner

14. Research or Private Study –
copying that is not exempt
• Where the person copying knows or has
reason to believe that the copying will
result in copies of substantially the same
material being provided to more than
one person at approximately the same
time and for substantially the same
purpose
• Converting a computer program
expressed in a low level computer
language into a version expressed in a
higher level computer language, or
• Copying a computer program in an
incidental manner in the course of
converting that program
May 15, 2014 14

15. May 15, 2014 15
Criticism or Review
• Must be accompanied by a
sufficient acknowledgement
• Includes fair dealing with a work
(other than a photograph) for the
purpose of reporting current
events, where accompanied by a
sufficient acknowledgement
• “Sufficient acknowledgment”
requires an acknowledgement of
the title, or other description of the
work and the identification the
author

16. Incidental Inclusion
• Copyright in a work is not infringed by its
inclusion in an incidental manner in
another work
• Copies of such work can be lawfully
made available to the public
• Not incidental where the inclusion
unreasonably prejudices the rights of the
copyright owner
• Permits the use of quotations or extracts
where the first work has been lawfully
made available to the public and
where such use does not prejudice the
rights of the owner and the owner is
sufficiently acknowledged
May 15, 2014 16

17. May 15, 2014 17
Education exception
• Sections 53-58 of 2000 Act
• Authorises the use of work that is
otherwise copyright protected
• Exhaustive list of permitted acts,
subject to multiple conditions and
pre-requisites.

18. Education exception
• Starting point is permissive
• Copyright in a literary, dramatic, musical
or artistic work shall not be infringed by its
being copied in the course of instruction
or preparation for instruction...but
mandates that....
• Copying is done by or on behalf of the
person giving or receiving instruction
• Copying is not by reprographic means
• The copying is accompanied by a
sufficient acknowledgement
May 15, 2014 18

19. Education exception – non literary
• Starting point is also permissive
• Copyright in a sound recording, film,
broadcast, cable programme or an
original database shall not be infringed
by its being copied in the course of
instruction or preparation for
instruction...but mandates that....
• Copying is done by or on behalf of the
person giving or receiving instruction
• Copying results in only a single copy
being made
• The copying is accompanied by a
sufficient acknowledgement
May 15, 2014 19

20. Education exception - miscellaneous
• Permits copying for the purposes of an
examination by way of setting
questions, communicating questions to
the candidates or answering questions
but does not permit the making of a
reprographic copy of a musical work for
use by an examination candidate in
performing the work
• Infringement does occur where an
exempt copy is subsequently sold, rent
or lent or offered or exposed for sale,
rent or loan or otherwise made
available to the public
May 15, 2014 20

21. Performing, playing or showing work
• Audience must be limited to persons who
are teachers in or pupils in attendance at
an educational establishment, or other
persons directly connected with the
activities of that establishment
• Performance by a teacher or pupil, or
performance at the establishment by any
person, for the purposes of instruction
• Includes the playing or showing of a
sound recording, film or broadcast or
cable programme
• Presence of parents or guardians not
included in these exemptions
May 15, 2014 21

22. May 15, 2014 22
How much can be copied by
reprographic means?
• Copying must be by or on behalf of an
educational establishment
• Work must have been lawfully made
available to the public
• Short passage
• No more than 5% of a work in a calendar
year
• Anthologies - No more than 2 excerpts
from work of same author within a 5 year
period
• Statutory exemptions are not applicable
where a licensing scheme exists

23. May 15, 2014 23
UCC – ICLA Licence
• Over-rides statutory prohibitions
• Use is limited to the terms of the
licence
• Licence extended to digital
copying 1/1/2006
• Exhaustive list of licensed materials
(ltd by publishers)

24. May 15, 2014 24
Original ICLA licence
• Permits UCC staff/students to copy extracts
• Limits to the extent of permitted copying
• Limited by scope of ‘licensed materials’
• Must be a copy of the original work
• http://secretary.ucc.ie/copyright/ICLALicenceAgreement.do

25. May 15, 2014 25
‘To copy’
• “…to make or permit the
making of a photocopy or any
reproduction of Licensed
material on to paper by means
of any reprographic process,
excluding the making of a
reproduction by electronic or
digital means…”

26. May 15, 2014 26
Extent of licence
• To make and permit copies as
required by the employees or
students
• To make the copies available to
students/staff
• Provided such copying is not in
connection with any commercial
activity other than educational
purposes

27. May 15, 2014 27
Limitations
• Not exceed 5% or one chapter
of a published work, save:
• A whole article may be copied,
but not more than one article in
any one issue of a publication
• A short story/poem of not more
than 10 pages in length can be
copied

28. May 15, 2014 28
Other issues
• Copy must be made from the original
• Number of copies must not exceed the
number of students in a class, plus 2
copies for each teacher or lecturer
• Permits compilation and distribution of
course packs for specific courses
• Such materials cannot be sold or rented
but the Licensee can charge for the
expense of producing the material
• Express prohibition on electronic copying
• Must include name of author and
publisher on front page of each copy

29. May 15, 2014 29
Digital and Intranet extension
• Supplements original licence
• Operative since 1 Jan 2006
• Permits scanning, posting on
blackboard and printing of material
• Limited to ‘licensed works’
• Expressly excludes posting material on
worldwide web
• http://www.ucc.ie/en/media/support/ocla/compliance/UCC

30. May 15, 2014 30
What is permitted now?
• Scanning of material for digital
reproduction
• Make available digital copies
of licensed materials via
Blackboard
• Print and permit to be printed
onto paper, digital copies of
licensed material
PROVIDED FOR EDUCATIONAL PURPOSES

31. May 15, 2014 31
Limitations to license
• Must copy original material only
• 5%/one chapter limitations apply
• Not authorised to amend, alter or
manipulate material
• No reproduction on world wide web
• Can’t send material by email

32. May 15, 2014 32
More limitations
• Can’t make digital copies of any
graphic or visual work unless integral
to text being copied
• Can’t make copy to CD, DVD, floppy
disk etc.
• Can’t collect or store digital copy
except for technical back-up
purposes

33. May 15, 2014 33
Included publishers
• Schedule to the agreement
• Currently 63 publishers included
• http://www.ucc.ie/en/media/support/ocla/compl
• US publishers included
• UK publishers excluded

34. May 15, 2014 34
Rights of the Employer
• Section 23 2000 Act
“Where work is made by an employee
in the course of employment, the
employer is the first owner of
copyright in that work, subject to
contrary agreement between
parties”
• Importance of employer/employee
clarity
• University policies more typically focus on
inventions and related patent laws

35. UCC IP Policy
Ownership of IP:
• The University owns all IP rights in works
generated by staff in the course of their
employment by the University and
students during their courses of study.
Re Copyright:
• But the University does not assert
ownership of copyright of pedagogical,
scholarly or artistic works, regardless of
their form of expression, unless there is a
written agreement to the contrary.
May 15, 2014 35

36. May 15, 2014 36
Moral Rights
• Chapter 7 – 2000 Act
• Retention of integral rights by author
• Expressly includes:
– Paternity right
– Integrity right
– False attribution
– Prevent mutilation
• Rights can be waived in writing but
cannot be assigned nor alienated

37. May 15, 2014 37
Remedies for breach
• Criminal and civil remedies
• Whose rights are
breached?
• EC Enforcement Directive
• Civil proceedings
– Damages
– Injunction
– Cease and desist
– Account for profits and gain

38. May 15, 2014 38
Creative Commons project
• Facilitates waiving of © and
sharing/using of work
• Returns the power and extent of
sharing to the author
• Website offers a variety of licenses
at no charge
• UCC Law Department is the Irish
partner
www.creativecommons.org