1 Memo from Olav Torvund (D.J.) (UiO)

1.1 Copyright related to traditional education and to MOOCs

The Copyright Act contains a number of provisions regarding the use of protected works in education.1 These were designed with traditional classroom/auditorium teaching in mind, as well as production and distribution of educational material in the form of hand outs, etc. in such contexts. In such teaching, the works that are used are made available to a limited group, namely those who are present in class.

With MOOCs, the teaching is published. They represent a departure from the traditional teaching role and transition to something more reminiscent of publishing.

I have chosen to initially review the general rules of copyright law followed by a review of the provisions for the use of intellectual property in teaching. My final remarks concern MOOCs in particular.

1.1.1 Overview of copyright law

1.1.1.1 Brief summary of what is protected

Copyright protects intellectual property. An intellectual property is something that is created and that has been expressed. It can consist of text, images, music, film, etc. An intellectual property must be the result of independent creative effort. It should be original in the sense that it is something you have created, but there is no requirement that it must be something entirely new. Much of what is created are variants over familiar topics. The threshold for whether something is protected, is one of the most difficult issues in copyright law. I will not go into further detail about this in this context.

Ideas are not protected. Utilising other people's ideas as a starting point for creating your own work does not constitute copyright infringement.

Government documents are not protected. You can freely cite laws, regulations, judgments, official reports, etc.

Knowledge is free. No one has a copyright on knowledge, even in cases where it is clear that someone is presenting new knowledge. A copyright protects the form you have used to present the knowledge, not the content of what is presented. The textbook example often used is that Einstein was never granted a copyright for his theory of relativity, but he held the copyright to the articles in which he presented the theory.

For practical purposes, one can assume that one can freely reproduce facts and knowledge from the works of others, such as from textbooks. But when the actual work is reproduced in whole or in part, one should assume that this is protected by copyright.

1.1.1.2 Period of protection

A copyright lasts 70 years after the author’s death. At this point, the work enters the public domain and can be freely used. Today, we can freely reproduce Ibsen’s and Bjørnson’s writings and Edvard Grieg’s music.

For music performances, performing artists’ rights come in addition to the author’s rights. A performing artist’s performance is protected for 50 years from the end of the year in which the performance took place, or a recording was released. This will be extended to 70 years, but it will not take effect for performances that took place or releases prior to October 1962. This means that we can freely utilise old recordings of many classical music works, but not more recent recordings of the same.

1.1.1.3 Point of departure: Consent is required

The principle is that consent is required to make copies of intellectual property or make the work available to the public. When a work is copied into, for example, a PowerPoint presentation, copies of the work are presented. When this is presented in class, the work is performed. Performance in teaching will usually be performing for, and thus rendering it available to, the public.

In copyright terminology, exhibiting only includes exhibiting a single copy. In practice, this could be relevant for artworks where an original or a reproduction is exhibited. According to Section 20 of the Copyright Act, copies of published works of art or photographic works can be publicly exhibited in an educational context. It is therefore not necessary to go into detail on this. When something is presented using technical aids, such as when projecting on a screen, it is, in terms of copyright law, a performance, not an exhibition. A film is performed, it is not exhibited.

One can of course obtain the originator’s consent. However, in many situations this is impractical. A number of provisions provide the right to exploit a work of intellectual property in teaching.

1.1.1.4 Compulsory licensing and extended collective licensing

In some areas we have provisions that provide compulsory licensing. This means that you can use a work in the specified manner without the prior consent of the copyright holder. But compensation must be paid for their use.

Norway also has a number of provisions on extended collective licensing. In practice it may be difficult to clear rights with the individual originator, simply because one does not know how to get in touch with the person. An originator can leave it to others, such as an organisation, to manage the rights on their behalf. This is common for composers and songwriters, whose rights in Norway are managed through TONO. This model covers only those who are members of the organisation and have given them a mandate to manage their rights. There is comprehensive international cooperation in music, so foreign composers are also represented by TONO.

This model will not work in places where unionisation rates are low, or where organisations that administer rights in this way do not exist.

Extended collective licensing is a Nordic construction. This means that an organisation may enter into agreements that apply to all originators in their field, regardless of whether they are directly represented by the organisation or not. You enter into an agreement with the organisation, and compensation is paid for use. The compensation is then distributed to copyright holders. An extended collective licence is more flexible than a compulsory licence.

Entering into an extended collective licence firstly requires the existence of a legal provision stipulating that an extended collective licence covering the use in question can be entered into. These legal provisions form the framework for the extended collective license. Secondly, there must be an organisation representing the affected licensees.

The extended collective licences that most people come into contact with are copying agreements with Kopinor.

1.1.1.5 Free licences and other licences that provide consent

Today, many copyright holders choose to make their works available with free licences where the author consents to certain usage. The most widespread licences relevant to teaching are Creative Commons licences. The licence will then specify the kind of use that is permitted, and you do not have to obtain a new consent or pay compensation as long as the works are used in compliance with those licences. The licenses will typically allow redistribution of the works.

There are special online collections of music, images, etc. that are made available on such terms, and can be freely used. It is also possible to set up a search on Google to only search for material that is marked to indicate that this type of distribution is permitted.

It is also of practical importance that YouTube includes in its normal terms of use that those who upload videos to YouTube must, among other things, accept distribution. Unless special reservations are made, clips from YouTube can basically be used in teaching. But part of the problem with services like YouTube is that we cannot be sure that those who uploaded a video actually had the right to do so or to give consent for further distribution. Whatever the terms of use may state, we cannot be sure that a potential permission is valid.

1.1.1.6 Right of quotation and use of images

In some cases, works can be used freely, i.e. so that it is neither necessary to obtain permission nor pay compensation. The right of quotation is of practical importance. Under Section 22 of the Copyright Act, you can quote from a published work in accordance with proper usage and to the extent warranted by the purpose.

We can quote excerpts of works, or even smaller works in their entirety. When we quote pursuant to Section 22, it follows from Section 11 that the source shall be stated “in the manner required by proper usage”. One can basically quote from any type of work.

The purpose of the right of quotation is not that we should be able to utilise bits of other people's intellectual property without asking for permission or without paying. It a provision that safeguards general freedom of speech and freedom of discussion. It would have been untenable if one had to ask permission to quote. You could then end up being able to quote what you agree with, but not what you want to criticise. We can, if we have earned it, enjoy being quoted with articulate and good statements. But we must also accept being quoted and criticised when we have written something that was perhaps not so smart when it comes down to it.

One can only quote from works that have been published (with the author’s consent). Many of us have certainly written and said stupid things in anger, in failed attempts to be a writer, youthful bravado, tumultuous love or in other situations, which fortunately have never been made public. The rationale for the right of quotation is not so far-reaching that we must accept being confronted with quotes of something we may well have written or said, but never made public.

In order to be entitled to quote under Section 22 of the Copyright Act, the quote must be put into context. One must make it a part of one’s work. Sometimes the quote can be what is discussed. But it can also be an example for illustration.

One can in principle also quote images, but it is in practice difficult to ground the use of imagery in the right of quotation. Special provisions exist regarding the use of images. For teaching, Section 23 is primarily applicable. Its first subsection reads:

Issued works of art and issued photographic works may be reproduced in connection with the text of a critical or scientific treatise which is not of a generally informative character, when this is done in accordance with proper usage and to the extent necessary to achieve the desired purpose.

It must therefore be a critical or scientific treatise. The threshold for what should be considered “scientific” is not particularly high. The treatise shall not be “of a generally informative character”. The provision likely envisioned art books, which can have a scientific nature, but also be typical “coffee table books” that cater to the interested public. The first subsection is a free use provision, so consent is not necessary and compensation shall not be paid.

The second subsection of the provision expands this somewhat. It reads:

Subject to the same limitation, an issued photographic work may also be reproduced, on payment of remuneration, in critical or scientific treatises of a generally informative character and in connection with the text in works intended for instructional use.

We should note here that this only includes photographic works, not art. There is still a requirement for this to be critical or scientific works, but it may be of a generally informative character. Furthermore, the provision includes texts intended for instructional use. This is a compulsory license. It is not necessary to obtain consent. Compensation must, however, be paid for their use.

The final subsection states that the provision does not provide the right to reproduction in machine-readable form, unless this concerns a non-commercial reproduction pursuant to the first subsection. We can therefore reproduce images in connection with the text in critical or scientific treatises that are not of a generally informative character, also in machine-readable form, as long as the reproduction is not commercial.

This provision means that scientific publications that also reproduce artworks and photographic works can be made available in open archives. But even if the article itself will not be “commercial”, the publication will be if it is published by an ordinary publisher engaged in commercial publishing.

The artwork that forms part of the background can be freely reproduced when it plays a subordinate role in the context. It is thus not necessary to remove the art from the walls, for example, to take a picture of a person. Art that is permanently set up on or near public roads can generally be freely reproduced. This does not apply if the work is clearly the main subject and the rendering is exploited commercially.

1.1.1.7 Recording own performance

Section 13 of the Copyright Act gives teachers and pupils the right to record their own performance for instructional use. It must be assumed to be particularly useful for instruction in music, drama and other contexts where the actual performance is the topic of the instruction. However, the provision is not limited to this.

One can reproduce teachers’ and students’ own performances under this provision. It does not authorise recording performances by others, even though this also happens to be used in the teaching.

This provision is not limited to public schools or other education institutions, and must therefore apply to all teaching situations.

Recordings made under this provision cannot be used for any other purpose.

1.1.1.8 Compulsory licences for the use of works during public examinations

Under Section 13a of the Copyright Act, copies of a published work can be made for use in a public examination. “Public examination” includes, according to the legislative history, “examination at public education institutions also includes examinations at private institutions that have a statutory right to conduct examinations”. Under the current rules, this must mean primary and secondary schools that are approved under the Private Education Act, as well as universities and university colleges accredited under Section 3-1 of the Universities and University Colleges Act.

Examinations at private education institutions without state accreditation will not be public examinations. Any examinations in connection with continuing and further education courses that do not earn credits are most likely also excluded.

We should note that the work must be published, it is not sufficient that it has been made public, see Chapter 1.1.6.

1.1.1.9 Extended collective licensing for education

Section 13b of the Copyright Act authorises entering into extended collective licences for use in education. You can produce copies of published works for your own teaching when the extended collective licence terms are fulfilled, which in practice means that the education institution in question must have an agreement with the organisation that represents authors in the relevant area. An agreement with Kopinor is required for “everything that can be printed”.

An agreement with Norwaco is required in order to record broadcasts. One will then be able to produce copies to the extent permitted by the agreement. Not all television channels are included in this agreement.

At a higher education level, Norwaco will enter into agreements with each institution. For primary, lower and upper secondary schools, the agreement is entered into with the school owner, which means the individual municipality for primary and lower secondary schools, and the county authorities for upper secondary schools. All county authorities have an agreement with Norwaco. However, last I checked, many municipalities had not entered into such agreements. This means that schools in municipalities that have not entered into an agreement with Norwaco, do not have the right to record television programmes for use in education. Agreements are entered into for each individual private school.

1.1.1.10 Collective works for use in education

According to Section 18, collective works composed of works from a larger number of authors can be copied for use in religious services or education. Minor parts of literary, scientific and musical works or short works of this kind, can be reproduced. At least five years must have passed from the end of the year the work was published. The authors are entitled to remuneration, so this is a compulsory licencing provision.

This is primarily a textbook, songbook and hymn book provision. You can assemble a collection of texts, songs and musical pieces. Though one can in principle also assemble other course materials according to this provision, it is not very practical to create course materials in the form of anthologies where all works are older than five years.

The provision also authorises making collections of recorded music. However, digital recordings can be read by a machine, and are therefore not allowed. Making such collections on cassette tapes or other analogue recording media is not very practical.

The collective works must be intended for specific use in teaching, but this does not mean that it cannot also be available for normal sale. “Skolens sangbok” (School songbook) can be sold at normal booksellers if it was produced in accordance with this provision. However, if the book was made for the general public, it cannot be made pursuant to this provision. In 1991, Brikt Jensen published “Vår egen litteratur. Brikt Jensens lesebok for de tusen hjem”. This is a textbook that largely corresponds to textbooks used in Norwegian schools. However, since it is not made for educational purposes, it could not have been published without acquiring consent.

The provision does not allow reproduction in a machine-readable form. In principle, the provision conflicts with the InfoSoc Directive (Copyright Directive).2 However, this Directive contains what is called a “grandfather clause”, which means that individual countries can continue certain fair use rules that already existed in national legislation before the Directive was adopted. One of the conditions is that reproduction only takes place in analogue form.

1.1.2 Free performance in certain contexts

1.1.2.1 Main rule: religious service and education

The basis is that the author has the exclusive rights for public performance of his/her works. However, this exclusive right does have certain limitations. Initially, I would like to refer to the right of quotation, see Chapter 1.1.5. In education in particular, quotes will often be performed. This provision applies to performance beyond what is established in the right of quotation.

According to Section 21, a published work can be performed publicly in connection with religious services and education. The provision is based on the consideration for religious, cultural and societal interests and has been called a “charitable exclusion”.

In this connection, education includes all forms of education, public and private, free or not. Normal informative activities are not included. The preparatory works discuss the use of music in dance schools in particular, concluding that this is also education covered under this provision, and that remuneration cannot be required for music performances in connection with such education.

Singing a song or reading a text aloud constitutes performance. However, “performance” has in practice become an omnibus term which includes all forms of making something available that is not providing or showing copies.

When something is presented on a screen using a projector, this is a performance, not an exhibition. From a copyright perspective, a film is performed, not exhibited. Furthermore, performance comprises “broadcasting or other transmission by wire or wireless means to the public, hereunder when the work is made available in such a way that the individual can choose the time and place of access to the work”, see Section 2 (3) of the Copyright Act. In practice, the last formulation includes making works available via the Internet. Section 21, cf. Section 2 (3), thus states that works can be made available via, e.g., the Internet as a part of education, etc. This is probably an unintentional consequence of making works available in this way being defined as performance. However, this does not apply without modifications.

In practice, however, you will need to have a copy of a work in order to make it available via the Internet. If you have a copy that can be made available, one will generally be able to make this available via the Internet. It is for example possible to make a CD available via the Internet by inserting it in a CD player that can be reached via the Internet. However, this is not particularly practical. A copy will usually be produced for this purpose. Section 21 does not authorise production of such copies.

An extended collective licence is generally used for producing copies for use in education. In its agreements, Kopinor has allowed for works within their agreement scope (books, articles, etc.) to be made available through closed learning systems such as Fronter and corresponding systems. However, the agreement does not authorise making the copies openly available via the Internet.

If the author consents to making his/her work available to download for free via the Internet, this will entail having the right to produce a copy of the work. This right is based on consent from the party that made the work available, either explicitly or implicitly. If terms are stipulated for the use of a copy produced in this manner, such that it can only be used privately, this restriction must be respected. If there are no such terms, copies produced in this manner can be used on par with other legally acquired copies. However, this issue involves a lot of open and unanswered questions, which I will not discuss here. Podcasts are practically significant in this connection. NRK and many others make many of their radio and television programmes available for download as podcasts. NRK writes the following about use of podcasts:3

Warning. All programmes available for download here are copyright protected. They are only intended for private use.

According to this provision, the performance right does not include a broadcasting right. The opportunity for performance within education also does not cover performance within the framework of organised concert activities. This is relevant for student concerts at the Norwegian State Academy of Music.

1.1.2.2 Performance of films in education

The right to performance in education does not cover audiovisual works according to Section 21. In order for something to qualify as an audiovisual work, the actual film production must be intellectual property. It is of no significance whether what is shown in the film is intellectual property. Simple video recordings made with a fixed camera, will be films, but not audiovisual works.

Films can be quoted in accordance with the quotation rule in Section 22 of the Copyright Act. This means that film clips can be used in connection with what is said in the lecture. This will apply both when discussing the performed film clip, and when the film clip is used to illustrate or highlight a point in the lecture.

You cannot publicly perform an entire or large parts of a film for educational purposes without consent (which in practice often means without paying remuneration). This raises the question of when such performance is considered public. The limit of the private sphere is wider when it applies to performance than when it applies to making copies.

A relevant question is the use of film clips from the Internet in the form of web TV, etc. This could to some extent be considered quotation. Beyond this however, potential use, if the clip could be considered an audiovisual work, must be substantiated with an implicit consent based on the fact that the person who chose to make this freely available to everyone also allows for it to be used for education. One can relatively safely assume that NRK and online news services that also publish video clips, have thereby also consented for the clips to be used in education. In practice, implicit consent is difficult and uncertain.

NRK has a separate service, NRK Skole (NRK School),4 where they make archive material available in a manner which is especially suited for use in schools. Though it is not expressly stated, there is no doubt that this can be used for education.

Furthermore, there is an exemption for stage performance of stage works. Firstly, the work must be created for the stage, for example a theatre play. A novel or novella is not a stage work, and can be dramatised and performed for education. Secondly, it must be a stage performance, which means in a dramatised form with costumes, etc. One can perform songs from a musical in a concert programme, as this will not be a stage performance.

The final exemption applies to performance of databases in for-profit education. This is unlikely to have major significance in traditional education. However, there may be an issue for web-based education as to what extent you can grant access to databases.

Databases cannot be performed in for-profit education. In this context, for-profit means that the education is provided in order to make money from the activity. Charging money to cover costs without the goal of making a profit, is not considered for-profit education in this context.

The individual teaching service, not the institution’s purpose, determines whether or not education will be considered for-profit. If a higher education institution provides continuing and further education in addition to ordinary education, such continuing and further education will be considered for-profit if the institution intends to operate the activity at a profit.

1.1.3 MOOCs and other methods for making education and education materials available on the Internet

As mentioned earlier, the provisions discussed above generally apply for use in normal education activities. When education is made available online in the form of MOOCs or in another manner, the education and thus also the material presented in the education is published.

As long as it is only your own material, and others’ material is only used within the framework of the general right of quotation, right to use photos, etc., this is unproblematic with regard to copyright. However, the special provisions that allow use of copyrighted material in education, generally do not allow for making this available to the general public outside the class room or auditorium. The moment you publish a presentation containing other people’s photos, an audio recording containing someone else’s music or other copyrighted material from a third party, your are publishing someone else’s material. You do not have the right to do this without consent from the author.

The practical consequence entails clarifying the rights of the copyrighted materials used, i.e. obtaining consent and potentially paying remuneration when required.

You must also enter into an agreement with the person or people making the education materials, to secure the necessary rights to make this available in a MOOC. I will not discuss the issue of whether remuneration should be provided for this. However, the agreements should ensure the person or people who are responsible for the academic content also have academic control over the result. This should mean you have the right to update and the right to withdraw something you potentially believe you can no longer vouch for.