Can International Copyright Exceptions and Limitations Support A Global Learning Commons?

Session Title: Can International Copyright Exceptions and Limitations Support A Global Learning Commons?

Presenter: Lila Bailey, Counsel, ccLearn, Creative Commons

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Time & Date: 11:15 A.M. - 12:00 P.M., Wednesday, August 12, 2009

Location: Rm. C180

Session Description: The goal of the OER movement is to build a global learning commons; a large pool of high quality, free resources that can be accessed, shared and modified by anyone, anywhere, at any time. Yet, much of the OER being created today are legally incompatible, leading to the creation of OER silos, rather than an internationally interoperable pool of resources. Copyright law is often the primary reason for the creation of silos, because it prohibits the sharing, adaptation and republication of copyrighted works. Creative Commons licenses provide one solution to this issue by giving copyright owners the ability to change the default rules that apply to their own resources, resulting in OER that can be legally shared, adapted and republished, and more importantly, OER  that are part of the global learning commons.

Yet, good pedagogy regularly demands use of materials created by others?materials protected by all-rights-reserved copyright. Educators often wish to include others’ content to improve the quality of their OER, but know they may not apply a CC license to materials they do not own. As a result, educators find themselves wondering how they can legally create and use OER containing third party copyrighted content.

There are a number of potential solutions to this problem, such as replacing the third party materials with openly licensed content, or seeking authorization from the rights holders. Educators have also looked to existing legal paradigms regarding permissible uses of  copyrighted materials. The laws of most countries permit certain educational uses of content to be made, despite the copyright owner’s otherwise exclusive control over that content. Educators around the world rely on such copyright exceptions and limitations (”CELs”) in their everyday practice. What use can the OER community make of educational CELs for using third party copyrighted content?

Unfortunately, CELs are inherently incompatible across national borders, because different countries have implemented their jurisdiction-specific CELs in very different ways.  Indeed, the situation is very complicated, because the CELs at issue depend not only on the location where the OER were created, but also on the origin of the copyrighted materials, and on the jurisdictions of the downstream users of the materials.  As a result, any solution developed for one particular country is unlikely to present an international solution for the OER community. Moreover,  jurisdiction-specific solutions could lead to the creation of OER that is legally incompatible with OER created in other countries, resulting in OER silos and not interoperable components of the global learning commons.  But short of completely revising international copyright law, the approach of relying on CELs may nevertheless be the OER community’s optimal choice.

This working paper explores the problem of third party copyrighted content for members of the OER community, and the possible solution of relying on international CELs to resolve this issue. This proposed solution is evaluated in light of the twin goals of building the global learning commons and  creating high-quality OER containing third party copyrighted content.  This paper also points to additional research that is needed in this area.