UTILIZATION OF WORKS AS ILLUSTRATIONS FOR TEACHING

• May 3, 2022
• Maichael Bessada

A.     ANALYSIS[1]

Out of the 17 countries studied, we found 14 countries whose copyright laws contained an exception making possible the utilization of works as illustrations for teaching.

The countries are as follows:

–        Algeria (Article 43),

–        Bahrain (Article 21 (b)),

–        Djibouti (Article 41(c)),

–        Egypt (Article 171(6)),

–        Iraq (Article 14 (2)),

–        Jordan (Article 17(c)),

–        Libya (Article 17),

–        Morocco (Article 15)

–        Qatar (Article 18(2)),

–        Saudi Arabia (Articles 15 (3) and 15(9)),

–        Sudan (Article 14(3) and 14(6)),

–        Syrian Arab Republic (Article 37(1) c)),

–        Tunisia (new Article 10),

–        United Arab Emirates (Article 22(8)),

The copyright laws of Kuwait and Lebanon do not appear to contain provisions of this type, while the copyright laws of Oman are not clear in this respect.  Article 20(2) allows a certain form of using works for teaching purposes in a classroom setting.  However, its scope appears so limited that we are reluctant to include Oman in the list of countries which authorize the full application of the exception in question.

1.      PRELIMINARY OBSERVATIONS

Observation 1:  It should be noted first of all that this exception is based on Article 10(2) of the Berne Convention, which authorizes member countries to “permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice”.

It will further be noted that the Berne Convention only offers a faculty of which Member States could avail themselves.  Consequently, they are not under any obligation to incorporate this provision in their national legislation.

Observation 2:  The point should also be made that the expression “utilization” in Article 10(2) is vague or even imprecise.  It does not refer to any right in particular.  Moreover, it is likely that this word was chosen deliberately to ensure flexible interpretation of the exception and tailor-made application.

The word “utilization” could have an extension enabling it to cover several rights at once.  This leads us to ponder acts likely to be performed freely by virtue of this exception for educational purposes.  What rights are the exception meant to cover? What types of utilization are permitted?

2.      RIGHTS COVERED BY THE EXCEPTION

Preliminary remarks

First of all, it is appropriate to mention that it is standard legislative practice for a draft bill to introduce an exception to refer to the right to which this exception is related.  This is logical because the exception makes it possible to perform an act that is the subject matter of an exclusive right that the law recognizes for the author.  By virtue of the exception, the beneficiary can perform the act in question without being obliged to obtain authorization from the claimant.  It is therefore quite normal for the link between the exclusive right and the exception to be highlighted.

Moreover, the close relationship between right and exception is reflected in drafting in various ways, as dictated by the drafting techniques which are specific to each country.  By way of example, two drafting models may be found below whose drafting technique is widely followed.

Model 1:  “The fact of: (for example, making copies for teaching purposes or performing a work in a classroom) does not constitute an infringement of the right of (for example, reproduction or public reproduction)”;

Model 2:  Notwithstanding Article X (which covers the right of public performance), it is permitted, without the author’s authorization and without payment of compensation, to perform a work publicly, in conjunction with the activities of an educational establishment”.

What is the situation in the Arab countries with regard to the exception based on Article 10(2) of the Berne Convention?

Our overview reveals two different and separate tendencies.

–        The first tendency accounts for a majority (10 countries: Algeria, Bahrain, Djibouti, Jordan, Morocco, Qatar, Saudi Arabia, Sudan, Syria, Tunisia).

–        In these countries, the exception in question covers “utilizations” of works as illustrations for teaching.  Thus, the exception does not refer to a particular right.  The notion of “utilization” is rather vague and can be quite broad.  These countries draw their inspiration from Article 10(2) of the Berne Convention.

–        On the other hand, four countries (Egypt, Iraq, Libya, and United Arab Emirates) limit this exception to acts of “reproduction”, which at first sight seems to be more restrictive than the notion of “utilization”.

In this respect, we may ask ourselves if the latter four countries have taken full advantage of the flexibility offered by Article 10(2) of the Berne Convention because the word “utilization”, which is broader in scope than the word “reproduction”, could offer more opportunities for free access to works.

To illustrate the minority tendency, we quote Article 171(6) of Egypt’s Law on Intellectual Property, which recognizes the following as lawful acts:

“The reproduction of short extracts from works by way of illustration and explanation, and for teaching purposes, whether it be in writing, or in a sound, video or audiovisual format ……”

This model is opposed to the majority model, which can be illustrated by an extract from Article 33 of the relevant law in Algeria, which allows:

“The utilization of a literary or artistic work by way of illustration in publications, a sound or audiovisual recording or broadcast, for purposes of teaching or vocational training,….”.

The question which arises at this point is determining to which rights this exception applies.

2.1.      Right of reproduction

2.1.1.   The point should be made that the question does not arise for those countries (Egypt, Iraq, Libya, and United Arab Emirates) which specifically restrict the exception to reproduction.  The law is clear in this respect.

•  But what about the other countries where the exception allows the “utilization” of works? We note that in these countries, the effect of the exception is to permit the utilization of literary and artistic works “by way of illustration in publications, broadcasts or sound or visual recordings”.

This enumeration (“by way of illustration in publications, broadcasts or sound or visual recordings”) is taken directly from Article 10(2) of the Berne Convention.

First of all, it should be noted that the utilization of work, by way of illustration in publications, broadcasts, or sound or visual recordings, implies its inclusion in a readable format (publications), an audible format (sound recording), or a visible format (visual recording).  This requires the fixation of the work and hence its reproduction.  Consequently, the “utilization” allowed inevitably includes the making of copies.  The exception should therefore apply to the right of reproduction, without a specific reference thereto.

Yet what about utilization by means of a broadcast? One could theoretically conceive of a broadcast without a physical medium.  However, current practice consists in systematically recording television broadcasts, either in advance or as they are aired.  Consequently, the utilization of work in a broadcast also implies its reproduction de facto.  Thus, the exception is broadened to include the right of reproduction in this case.

It can therefore be said that the utilizations covered in the laws of the Arab countries under the exception by way of illustration for teaching make it possible to carry out the act of reproduction of works.

2.1.3. But what types of reproductions are meant? More specifically, can digital copies be made?

To answer this question, we must first examine national legislation.  In this respect, we see that 13 of the laws which provide for the exception based on Article 10(2) of the Berne Convention allow digital copies in connection with reproduction carried out by virtue of the exception.  This holds true for the following countries: Algeria, Bahrain, Djibouti, Egypt, Iraq, Jordan, Libya, Morocco, Qatar, Saudi Arabia, Sudan, Tunisia, and United Arab Emirates.

It may be added that the Syrian law should make it possible to achieve the same results, but indirectly.

Although the laws of 14 countries converge as far as the outcome is concerned, they get there in different ways.

Some deal with the question at the level of the very wording of the right of reproduction.

Others tackle the question from the viewpoint of the definition of the word “reproduction”, in the part of the law set aside for definitions.

2.1.3.1. As a reflection of the first approach, we see that national legislators opted for very general wording in order to delimit the contours of the right of reproduction.  It is specified that this is done via the following:

–        “By any procedure whatsoever”: Algeria (Article 27), Djibouti (Article 23(b)(1)), Sudan (Article 8(2)(b));

–        “In any material form whatsoever”: Tunisia (Article 2(a));

–        “In any manner or in any form whatsoever, permanent or temporary, including temporary archiving in electronic form”: Iraq (Article 8(1)) as amended by Order No. 5 of the Coalition Provisional Authority), Jordan (Article 9(a)), Morocco (Article 10(a));

–        “By means of CDs or in an electronic memory or any other means of dissemination”: Saudi Arabia (Article 9(1)(a));

–        “By means of photographic or cinematographic reproductions or other procedures” (Libya, Article 6, para 2).

2.1.3.2. Other laws clarify the notion of reproduction in the introductory article dealing with definitions.  Thus, they qualify the notion of reproduction as an act consisting in making copies of the work: 

–        “By any procedure whatsoever”;

–        “In any way or in any form whatsoever”;

–        Some countries add the following clarifications to one or the other of these two formulas: “including permanent or temporary recording in an electronic memory”: Bahrain (Article 1), Egypt (Article 138(9)), Lebanon (Article 1), Qatar (Article 1), United Arab Emirates (Article 1).

This means that countries that have adopted the exception based on Article 10(2) of the Berne Convention can take advantage of this exception to perform acts of reproduction in a digital format.

2.2.   Right of public performance and of communication to the public

The question which must be asked is whether the utilizations allowed by virtue of the exception could go beyond acts of reproduction.  In particular, could the reproduction of works contained in publications, sound or visual recordings, or broadcasts, be performed in public (in a classroom, for example) or communicated via broadcasting or otherwise, to an audience made up of students?

There are major differences between laws in this respect:

–        Only two laws deal directly with the question.  In Djibouti, the law makes it possible to “communicate the work broadcast for teaching purposes”.  Moreover, Tunisian law allows the utilization of the work by way of illustration for teaching in “performances and dramatic representations”.

–        Four other laws limit the exception exclusively to the act of reproduction (Egypt, Iraq, Libya, United Arab Emirates), which would appear to rule out activities performed in public or broadcast.

–        As for the laws of the other eight countries, they do not deal directly with the issue and remain silent in this respect.  However, these laws apply the exception to the “utilization” of works.

To our mind, the expression “utilization” should be interpreted in such a way as to achieve the purpose of the exception.  The aim is to allow the use of extracts from works recorded in various formats – books, CDs, DVDs, etc. – to be used as illustrations for teaching and thus to help achieve pedagogical goals.

In some cases, this implies acts of distribution of works in such formats to the students concerned.

Yet this also inevitably implies that one can stage public performances of the works fixed in these formats: for example, the possibility of playing in class a recording of extracts from musical works or a play fixed in a sound or audiovisual format by virtue of the exception.  Refusing to allow the public performance, in this case, would be tantamount to truncating the exception by preventing it from fully serving its purpose.

The same reasoning should apply to a work recorded by virtue of the exception in a broadcast.  For what would be the point of being able to include a work in a broadcast designed to serve as an illustration for teaching if it were not possible to ensure that it reached the target students?

In support of this hypothesis, it may be noted that the Tunis Model Law on Copyright for Developing Countries adopted in 1976 proposes Section 7(c) wording to clarify the scope of Article 10(2) of the Berne Convention.  Indeed, Section 7(c) includes the exception by way of illustration for teaching the fact of “communication for teaching purposes of the work broadcast for use in schools, education, universities, and professional training.”

In support of this view, one could also quote Claude Masouyé, who interprets the scope of Article 10(2) of the Berne Convention as follows: “It is also agreed that, if the broadcasting itself is permitted, the same applies to a performance in public of that broadcast if done for teaching purposes” (WIPO, Guide to the Berne Convention, page 60).

In the Arab countries, however, apart from the case of Djibouti and Tunisia, the exception does not specifically cover performances or broadcasts as illustrations for teaching.  It is therefore difficult to predict whether a judge to whom this matter is referred will decide that the faculty of utilizing works for teaching purposes should also include their public performance or broadcast and the communication of the broadcast to the public.  National judges could interpret the exception in accordance with its raison d’être, namely, facilitating teaching activities.

Does this mean that in the latter case the exception would go so far as to allow the communication of extracts utilized in digital form for distance learning courses? This latter method is becoming increasingly popular.  More and more frequently, documents are made available to students on an Internet site for teaching purposes, where students can access them from their own computers using a password.  Moreover, some courses are taught solely on a distance learning basis.

We do not have precise information on the extent to which these new teaching methods have penetrated the Arab countries.  However, there are grounds to think that this is a trend that will gather momentum.  No law specifically provides for these possibilities.  Consequently, it is extremely difficult, or even risky, to venture to draw conclusions in this respect.  Everything will depend on the way in which the national text is interpreted.

Of course, for laws where the exception covers “utilizations” of works, the word “utilization” could be interpreted in such a way as to encompass any activity dealt with by an exclusive right and thus extend to the rights of communication or making available to the public, and hence the activities covered by distance learning.

The point should, however, be made that some countries in other regions have been obliged to amend their laws with a view to broadening the field of educational exceptions to include these new forms of teaching.  Accordingly, special texts have been enacted which contain a series of measures aimed at ensuring that the content communicated can only be received by the students signed up for the courses and not by any member of the public.

The absence of any special regulations to this effect in the laws of the Arab countries leads us to think that the legislators probably did not have this type of pedagogical activity in mind when they drafted their national legislation.  While it is therefore appropriate of course for the scope of the exception by way of illustration for teaching to include the new methods of distance learning, it appears to us that achieving this goal would require amendments to current legislation aimed at specifying its scope appropriately.

2.3.   Right of translation

Finally, we may ask whether the exception of utilization would allow for a translation of the work to be used for teaching purposes.

None of the texts analyzed takes up the issue.  It could therefore be concluded that the exception would only apply to the work in the original language in the Arab countries.  However, as concerns, the countries whose exception extends to acts of use, the field of the exception may cover the works in their original or translated versions.

It will also be noted that the Tunis Model Law for developing countries broadens the field of this exception to “utilizations of a protected work, either in the original language or in translation” (Section 7 of the Tunis Model Law).  It does not appear that the Arab countries have availed themselves of this possibility.  Here as well, however, the word “utilization” could be put forward to cover this type of activity.

3.      PURPOSE OF THE EXCEPTION: ILLUSTRATION FOR TEACHING

In general, the Arab countries reproduce the terminology of the Berne Convention, which stipulates that utilizations of works under the exception must serve by way of “illustration for teaching”.

This condition is expressed in various ways, all of which converge on the same goal. Thus, and according to the laws, it is stipulated that the exception must be:

–        “for use in schools, education, universities and professional training” (Djibouti);

–        “for purposes of illustration, education or vocational training” (Jordan, United Arab Emirates);

–        “for purposes of teaching” (Tunisia);

–        “for education or general training” (Algeria);

–        “for teaching purposes” (Bahrain, Egypt, Morocco, Qatar, Saudi Arabia).

This enumeration covers practically all levels of teaching, as was the intention of the drafters of the Berne Convention in the Stockholm version, of which Article 10, paragraph 2 was reworded.  Here is what Svante Bergstrom, rapporteur for the Main Commission No. 1, had to say:

“The wish was expressed that it should be made clear in this Report that the word “teaching” was to include teaching at all levels – educational institutions and universities, municipal and State schools, and private schools.  Education outside these institutions, for example, general teaching available to the public but not included in the above categories, should be excluded” (Report on the work of the Main Commission No. 1 of the Berne Convention: Articles 1 to 20. Records of the 1967 Stockholm Conference on Intellectual Property).

The question which arises is whether the exception can cover training courses for adults.  In our view, given the content of the Arab laws in this field, broadly worded as to the educational goals of the exception, this type of teaching should not be excluded from the exception.

What about distance learning? Is the exception likely to apply to this type of teaching?

Nothing in Article 10(2) of the Berne Convention restricts the field of application of the exception to traditional forms of teaching where students and teachers are all present in the same room.  This is an exception that is primarily designed to meet the needs of teaching.  In our view, teaching must be interpreted in a changing, dynamic way and must include both traditional and contemporary forms (along similar lines, see Ricketson et Ginsburg, The International Law of Copyright p.793).  This latter method is becoming increasingly popular.  More and more frequently, documents are made available to students at an Internet address for teaching purposes, where students can access them using a password.  Moreover, some courses are taught solely on a distance learning basis.

In addition, it will be noted that the Arab laws which deal with the exception for teaching illustration purposes use very broad terms and do not rule out distance learning.  But the difficulty is the one we mentioned above (see 2.3): determining whether the communication to the public by making works available to students via distance learning is indeed covered.  Doubts remain in this respect.

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[1] – study on limitations and exceptions for copyright for educational purposes in the Arab countries, world  intellectual  property  organization, geneva, standing committee on copyright and related rights, Nineteenth Session, Geneva, December 14 to 18, 2009, prepared by Victor Nabhan(President, International Literary and Artistic Association (ALAI)), SCCR/19/6, Section I, page 13