Pleased to share that ‘Copyright and Remote Teaching in the Time of Coronavirus: A Study of Contractual Terms and Conditions of Selected Online Services‘ has been accepted for publication on the European Intellectual Property Review! This is a collaborative research with Léo Pascault (Sciences Po, Paris), Bernd Justin Jütte (University of Nottingham), and Giulia Priora (Sant’Anna, Pisa).
When COVID-19 started spreading globally and throughout Europe, most aspects of day-to-day life were severely disrupted. As governments scrambled to contain the spread of the virus, higher education institutions (HEIs) reacted by suspending face-to-face teaching and by sending millions of students to the safety of their home. In order to keep delivering quality education, teachers had to embrace Emergency Remote Teaching (ERT). ERT refers to the “temporary shift of instructional delivery to an alternate delivery mode due to crisis circumstances”.[1] In this instance, teaching had to be moved online.
HEIs and teachers were thus faced with the critical choice of which service or mix of services to use in order to best carry out their mission remotely. The urgency of the situation left little time to exercise proper scrutiny in the identification of the services best suited to online teaching. In many instances, the transition was not accompanied by adequate institutional support. While some teachers were provided with relevant guidelines and training by their institutions, others were left to implement remote teaching by themselves. This created uncertainty and led to a high degree of heterogeneity in the choice of online teaching tools used.
The swift move to ERT has given rise to significant copyright-related concerns: [2] what was to happen to materials prepared by teachers once shared with their students through a particular online service? What were the risks teachers incurred when using third-parties’ materials without permission? Could their students be exposed to similar risks? Those concerns are not radically new. The risks and uncertainty surrounding the use of materials for online teaching is well-known to copyright scholars and they have been addressed, albeit only partly, by the Copyright in the Digital Single Market Directive (C-DSM Directive).[3] The transition to ERT has exposed these problems to a wider audience and illustrated the necessity to address them promptly and effectively. There are perhaps two new elements. First, practically, infringements taking place in physical classrooms were unlikely to be discovered and actioned by rightsholders. Second, rightsholders can increasingly rely on automated systems to enforce their rights (“code is law”)[4], leading to overprotection, especially when end-users cannot appeal the automated decision. The relevance of our analysis is underlined by the fact that ERT, initially intended as a temporary solution, is likely to become the “new normal”: remote teaching and the tools used to deliver it are expected to be integrated into HEIs and teachers’ instructional methods, resulting in a “blended learning” experience, well after face-to-face teaching resumes.[5]
The aim of this article is to disentangle the most prominent copyright issues involved in remote teaching. To this end, we reviewed the terms of use, service agreements, community guidelines, etc. (together “terms”) of a selection of services. We examined and compared these terms to identify and highlight problematic issues and best practices. The study encompasses standard terms of nine online services (referred to hereafter as “online services”), as last accessed on 27 April 2020. The selected services (Discord, Facebook, G-Suite for Education,[6] Jitsi, Microsoft Teams, MoodleCloud, Skype, Zoom and YouTube) include dedicated software for managing groups of users, content-sharing platforms, social networks, and video conferencing services. To varying degrees, they afford teachers to emulate in-person teaching through live discussions and asynchronous interactions with students, the provision of digitized learning materials and the submission of assignments. Some were specifically designed with distance education in mind, while others have been repurposed or retrofitted to accommodate ERT.[7] Some are operated by institutional actors and rely on proprietary software, others on open-source software and only a few are accompanied by contractual terms individually negotiated by HEIs. The selection of services represents an initial sample, informed by our own experience, informal conversations with colleagues and preliminary observations of teachers’ behaviors in the transition to ERT. Alongside its academic purpose, our analysis aims to assist HEIs and teachers in assessing the suitability of the services available to them to deliver remote teaching.
The study considers the currently harmonized EU copyright rules, and in particular the Directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society (InfoSoc Directive).[8] It also takes into account the yet-to-be-transposed[9] C-DSM Directive, which introduces, among others, an exception for digital, cross-border teaching activities[10], as well as critical changes to the safe harbor provisions for online content sharing service providers (OCSSPs).[11] The analysis is structured along three axes. First, we will focus on teachers’ control over their own materials once they have shared them through online services, thus critically assessing which rights teachers retain in their works and which they surrender to the providers of the service and for what purposes. Second, we will examine the liability incurred by teachers for sharing third-party materials without prior authorization. Lastly, we will deal with copyright infringements with a focus on content moderation. In particular, we will explore contractual regulation of content removal, user accounts’ termination, and complaint mechanisms available to teachers to make sure that essential teaching materials for instruction and illustration are permanently available to students.
The full text of the article can be downloaded in the ‘Research Projects‘ section of this website.
[1] Charles Hodges et al, ‘The Difference Between Emergency Remote Teaching and Online Learning’ (Educause Review, 27 March 2020) <https://er.educause.edu/articles/2020/3/the-difference-between-emergency-remote-teaching-and-online-learning> accessed 1 June 2020.
[2] Other significant concerns relate to data protection, see for a brief analysis Rossana Ducato et al, ‘Emergency Remote Teaching: a study of copyright and data protection policies of popular online services (Part II)’ (Kluwer Copyright Blog, 4 June 2020) <http://copyrightblog.kluweriplaw.com/2020/06/04/emergency-remote-teaching-a-study-of-copyright-and-data-protection-policies-of-popular-online-services-part-ii/?doing_wp_cron=1591780006.9291720390319824218750> accessed 9 June 2020.
[3] See Article 5 of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC DSM Directive, OJ L 130, 17.5.2019, p. 92-125 (C-DSM Directive).
[4] See e.g. Lawrence Lessig, ‘Intellectual Property and Code’ (1996) 11(3) Journal of Civil Rights and Economic Development 6.
[5] Debbie Andalo, ‘Could the lockdown change the way we teach forever?’ (The Guardian, 14 May 2020) <https://www.theguardian.com/online-learning-revolution/2020/may/14/could-the-lockdown-change-the-way-we-teach-forever> accessed 11 June 2020.
[6] Note that our study encompasses both the G-Suite for Education (Online) Agreement for non-profit educational institutions and other non-profit entities, and the G-Suite (Free) Agreement applicable to individual teachers.
[7] Discord, a service originally intended for the gaming community, modified some of its features in the midst of the coronavirus pandemic to accommodate ERT. See ‘How to use Discord for your classroom’ (17 March 2020, Discord) <https://blog.discord.com/how-to-use-discord-for-your-classroom-8587bf78e6c4?gi=8adc6dedf0be> accessed 9 June 2020.
[8] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 22.6.2001, p. 10-19 (InfoSoc Directive).
[9] So far, France is the only country that hastransposed part of the Directive: Loi n° 2019-775 of 24 July 2019 “tendant à créer un droit voisin au profit des agences de presse et des éditeurs de presse” (implementing Article 15 of the C-DSM Directive on the new publishers’ right). While national implementations are under way in some Member States (the deadline is set for June 7 2021), a useful tool to track the national implementations of the Directive has recently been released by Communia and is available at <https://www.notion.so/DSM-Directive-Implementation-Tracker-361cfae48e814440b353b32692bba879> accessed 1 June 2020.
[10] C-DSM Directive, art. 5.
[11] C-DSM Directive, art. 17.
Prof. Guido Noto La Diega 
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