On Friday 23 October, Giulia Priora† and I presented “Learning by Infringing? Copyright Private Ordering in Post-COVID Remote Teaching” at the 12th Worldwive Annual Conference of the European Intellectual Property Teachers’ Network (EIPTN). The program is available here. The core takeaway of our presentation is: the move to remote teaching – and the associated risk that teachers and students lose control over the contents they share and that they inadvertently infringe copyright – provides an unprecedented pedagogical opportunity. For the first time, teachers and students are directly and clearly affected by copyright and this will make studying copyright more relevant and exciting than ever! We, as IP teachers, should take advantage of the situation and re-design the IP syllabi around an analysis of the terms & conditions of remote teaching platforms. This may include interactive games such as uploading contents that we believe is lawful (e.g. relying on the parody exception) and see what happens to it: will it be taken down automatically? How does the appeal mechanism work? What’s the room left to public interest in the delicate balance with proprietary interests?
The rapid spread of COVID-19 in March 2020 shut down universities in most European countries. Teaching moved online and most universities are currently planning to deliver at least part of their teaching in the coming academic year in a blended form. With the online shift of teacher-student interactions, the choice of the teaching medium has never been more important (Ducato et al. 2020).
The post-pandemic university will have to make a responsible choice with regards to which tools to use to deliver their courses. Digital tools developed and operated by third parties significantly affect teachers’ and students’ fundamental rights and freedoms, including IP rights. Our research sheds light on the copyright issues arising from the use of some popular remote teaching platforms (e.g. Zoom) and it critically assesses whether these concerns remain pertinent in a post-COVID blended learning environment (Pascault et al. 2020).
Our project has analysed so far the terms and conditions, privacy policies and community guidelines of a sample of nine online services used across Europe in order to assess whether the needs of teacher and students are met. The analysis investigates whether sufficient and clear information is provided in order to enable teachers to carry out educational activities and interact with their students without uncertainties as to the potential legal consequences of their use and concerns regarding the protection of their content.
We believe that critically reflecting on how remote learning service providers such as Zoom and Microsoft deal with the digital content that students and teachers share can greatly benefit IP students. First, it will help students understand the importance of private ordering in the context of copyright. While analysing legislation and case law remains important, nowadays it has become inescapable to look at how copyright is governed contractually. The remote learning scenario will help students understand how, in the field of copyright more so than in other fields, the legislative process is too slow and lobby-influenced to be able to regulate digital content adequately (Noto La Diega 2015).
Second, students are more likely to learn when the method or the subject matter affect them directly (Taylor and Parsons 2011). Affected by the pandemic in manifold ways, students are disengaged. Motivating them is of the utmost importance to achieve the learning outcomes and maximize student satisfaction. Motivation is regarded as the most important factor that educators should target in order to improve learning (Williams 2011). Reflecting on the copyright issues related to their own learning activities will foster motivation, resulting in more engaged and curious students.
Finally, copyright’s private ordering impinges on key copyright concepts: the legal notions of control, liability and content moderation. Buried in inaccessible terms of service, there are (i) licenses that effectively transfer the control over the learning contents from the teacher to the remote learning provider; (ii) terms that unfairly expose teachers and students to infringement actions; (iii) terms that allow remote learning providers to take down user content and disable accounts with little if any recourse.
† Postdoctoral researcher, Institute of Law, Politics and Development (Dirpolis), Sant’Anna School of Advanced Studies, Pisa.