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Digital Copyright in Education

This DICE seminar is intended to the soft-skill programme by Pierre-Yves Burgi, University of Geneva (Genève)

Pierre-Yves Burgi

on 10 June 2016

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Transcript of Digital Copyright in Education

Easy as never to copy documents
Easy (as never) to transmit them (within a click) all over the world
--> real issues in
Digital Copyrights in Education
WHY do we care ?
artistic and literary works as books, paintings, music, text, tables, pictures and also illustration or graphics
other kinds of works such as databases or computer programs and new forms of expression such as pages of a web site or multimedia works
... and thus,
to creators a wide range of exclusive rights to control the use and dissemination of their works
Most uses of
work will require the prior permission of the creator even if certain uses will be allowed by law (e.g., quotes, news reports, teaching, etc.)
differs from:
the protection granted by patent, which protects new inventions
trademark which protects signs that are used in commerce to distinguish the origin of goods or services
Author’s rights are governed by a number of international agreements, such as:
Paris convention: protection of Industrial Property (1883)
Bern convention: protection of Literary & Artistic Works (1886, last modified in 1979)
Rome convention on neighboring rights (1961)
World Intellectual Property Organization (WIPO): Issued from Paris and Bern convention. Note: Copyright Treaty (WCT) to address the issues raised by information technology and the Internet was adopted in 1996
WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (1986-1994)
3) DICE Methodology:
Is based on 4 questions to go through before using content
Loi sur le droit d'auteur (LDA)
foreign law applies
Territoriality and Internet
changes the rules
Intranet vs Internet
copy of Dali's painting
inspired by Miro's painting
(copyright violation)
70 years after author death
50 years for computer software
(no copyright violation)
are not protected:
Mere ideas
The way ideas are expressed or conveyed (e.g., teaching method, sale methods, scientific techniques)
are protected:
Original creations of the mind, with individual traits, expressed in some way, independently of:
amount of labour
artistic value ("niceness" is not a criterion)
financial value
degree of achievement (e.g., preprint is protected)
transfer of rights
In Switzerland, if nothing is stated, employer is the holder
Moral rights (change accordingly to countries):
disclosure (where, how, under which name)
attribution (paternity right)
integrity (no distortion, no mutilation)
In Switzerland, download of protected content illicitly distributed* is (still) authorized for private use.

Uploading is not!
What is "
a teaching purpose
topic of study (not embellishment)
partial use of material
correctly referenced (each material)
from teacher to her/his students (intranet) and not btw students
Swiss common tariffs apply
under teaching exception (e.g., not for presentation to a conference)
research IS NOT teaching
does not cover server abroad
be aware of illicit copies (published "legally" can be difficult to distinguish)
--> duty to quote the source to avoid plagiarism
Teacher's duties:
does not need to ask for authorization
respect moral rights
compensation fees paid through TC 7 and 9 (transparent to teacher)
4) How to protect your work?
du 13 JUIN 2008 (extrait)
Propriété intellectuelle:

A l’exception des droits d’auteur sur les publications, l’université est titulaire des droits de propriété intellectuelle portant sur toutes les créations intellectuelles ainsi que les résultats de recherches, y compris les programmes informatiques, obtenus dans l’exercice de leurs fonctions par les personnes ayant une relation de travail avec l’université.
Notion of transfer of right
The UNIGE is the only entity that may transfer the rights to a third party
However, art 49 (1) if UNIGE decides not to valorize the material, the author can ask permission for a transfer of rights (under certain conditions
How to effectively protect your work?
no need for specific action
put statement on first page? No added value...
subscribe to collecting societies (not compulsory, and only valid within Switzerland)
Creative Commons
Promotes sharing and remixing, reuse of work, sharing knowledge
Clarifies copyright of work on the Web
Not exclusive (and you have to be the copyright holder)
Not revocable (think twice before CC assignment)
Does not affect moral rights (to the exception of the CC0)
Does not substitute copyright laws but offers a way to organize and manage rights (the 70 years rule applies)
Represents a tacit agreement (no need to sign it)
Terminates automatically upon violation. If this happens, contact violator for rectification, or take legal actions
5) Examples of copyright issues

2 aspects:
Legal: third party --> harm to market
Ethical: self-plagiarism --> community norms

ethical aspect: impact factor, e.g., using 'publish or perish' to exclude self-quotations you must identify them yourself and then exclude them from the Results list
To what extent is it acceptable to do self quotations from one publication to another?

There are 2 main aspects:
Social: order of authors
Legal, joint authors:
is the most intimate relationship available under copyright law
can represent themselves to the world as spokesmen for the entire work (except exclusive licenses)
can introduce themselves as both author and owner of the work
have full and easy access to the work
legal rights are so intertwined that any use of rights by one co-author has the potential to harm the other
should make decisions regarding the work in consideration of not only their interests, but also in the interest of the work as a whole
from: P. Samuelson, "self-plagiarism or fair use" Coomunication ACM, Volume 37 Issue 8, Aug. 1994
from: A.D. Sofer, "Joint authorship: an unconfortable fit with tenancy in common" 19 Loy. L.A. Ent. L. Rev. 1 (1998)

1) Introduction to copyright
2) The DICE project
3) The DICE methodology
4) How to protect your work
5) Examples of copyright issues
The goal of DICE is threefold:
Increase awareness of copyright issues related with digital content, to provide sound knowledge and eliminate unreasonable fears;
Develop fundamental skills in intellectual property and copyright management for higher education staff (e.g. understanding basic rules applicable in Switzerland, using Creative Commons licenses, etc.);
Increase the readiness and ability of authors to publishing open access resources (aka Open Educational Resources or OER).
2) DICE project
1) Introduction
To know more on the topic
Digital Copyrights in Education by Pierre-Yves Burgi is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
Based on a work at https://prezi.com/_vfu-ogzzog4/digital-copyright-in-education/
‘We’re Not Pirates, We’re Just Providing Shipping Services to Pirates’
simple representation without
any aspect of originality
(no copyright violation)
For journals' editors, see:
"Detection software will not spot all forms of plagiarism. The unattributed rehashing of original ideas in an author's own words is much harder to detect. Consequently, we rely on a high-level peer-review process and careful editing to spot such plagiarism. With rising 'publish or perish' pressures, it is also essential to teach high ethical standards. A thorough refereeing process remains the best guarantee for a robust scientific record."

B. Pulverer, head of scientific publications, European Molecular Biology Organization
du 1er janvier 2008 (extrait)
Propriété intellectuelle:

Les inventions faites par les collaborateurs de l'Université appartiennent à celle-ci. Une indemnité équitable est versée à l'auteur de l'invention si l'exploitation de celle-ci engendre des bénéfices.
article 36, alinéa 2 de la loi sur les EPF (extrait)
Propriété intellectuelle:

l'EPFL est propriétaire des droits exclusifs d'utilisation des logiciels. En revanche, les droits d'auteur sur les publications scientifiques et sur les manuels de cours écrits par les professeurs et autres employés de l'EPFL appartiennent à leurs auteurs. Il en va de même pour les droits d'auteur sur le texte d'une thèse, qui restent la propriété du doctorant; toutefois, dans le but non lucratif de faire connaître le contenu de la thèse, l’EPFL a le droit non exclusif de publier et d’utiliser tout ou partie du texte de la thèse si elle a soutenu l’auteur en finançant ses travaux ou en mettant des moyens logistiques à sa disposition.
Inventions, discoveries, ideas, algorithms, etc.
In U.S.A., invention = invention & discovery
In Europe, discoveries, scientific theories & mathematical methods are not to be regarded as inventions
Creative Commons
A teacher has bought 40 books to distribute to her students. She distributed 39 out of 40 and the 40th was used to scan the whole book. She then placed the scanned book on a private online space (Moodle) so that only students who received the physical book can access the online version of it, if they wish.

Is that legal?
Crown copyright 2006
Gowers Reviewof Intellectual Property
DICE is also:

Practical cases from teaching practices and validated by lawyers
An online course with a practical guide to download (PDF)
Seminars and webinars
A website http://www.diceproject.ch
Alternative to the DICE methodology:

The "three-step test" as an interpretation of Art. 9(2) of the Bern Convention

Has a more universal application than national laws
Exceptions in certain special cases
which do not conflict with the normal exploitation of the work
and do not unreasonably prejudice the legitimate interests of the right holder
The "three-step test"
The steps are cumulative
Other cases:
Although Megaupload.com was based in Hong Kong and "Kim Dotcom" lives in New Zealand, some of the alleged pirated content was hosted on leased servers in Virginia, and that was enough for U.S. prosecutors to act and close the site in January 2012
No Rights Reserved
No Known Copyright
"porting" (Swiss jurisdiction)
Learning Objectives: (you)

Apprehend the general notions on copyright issues
Understand copyright issues in the context of online teaching
Develop skills in treating concrete copyright cases based on the DICE methodology
Become aware to my rights as authors (eg, being aware of plagiarism)
Learning how to use the Creative Commons license to protect my own productions

Teaching Objectives: (me)

Sensitize and improve your knowledge in digital copyright issues in teaching and research copyrights;
Make you understand what is possible and not possible in the use of copyrighted material in online teaching (i.e. application of art. 19 LDA);
Making you know how to protect your own productions (CC license) and what rights pertain to your institution;
Hands-on workshop to analyze, discuss and exchange about case studies

Intellectual Property Right
A set of legal rules for protecting creativity
For computers:

An algorithm is considered as a theoretical entity and is thus not protected as such (but its expression - code - is, see below)
Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected
Copyright prohibits a substantial copy of the source code (protected as a literary work) but does not prevent the many alternate ways to express the same ideas and principles in different source code
--> collecting societies is a possible solution
* e.g. Megaupload.com
Unlike the Public Domain Mark,
CC0 should not be used to mark works already free of known copyright and database restrictions
and in the public domain throughout the world. However, it can be used to waive copyright and database rights to the extent you may have these rights in your work under the laws of at least one jurisdiction, even if your work is free of restrictions in others. Doing so clarifies the status of your work unambiguously worldwide and facilitates reuse.
New version 4.0 no need for porting
Includes sui generis licence
"allows" waiving of moral rights
Compatible with collective societies
License = public declaration rather a contract
incentivise knowledge creation
accumulate knowledge in a culture
protect a distinctive identity
We do we need IP?
Adapted from the Gowers Review of IP, 2006
(from the Gowers Review of IP, 2006)
Is it legal to break a DRMS? (Digital Rights Management System)
answer: see art. 39a al. 4 LDA
Can the provider of a P2P software be held responsible for illicit music/video exchanges between internet users based on this software?
Art. 19 al 1, let a:
"Personal use or within a circle of close people such as family or friends"
Does it cover the friends on a social net?
The american congress recently published a black list with countries that do not sufficiently protect author rights, on which Switzerland is mentioned along China, Russia, or Ukraine
Institut Fédéral de la Propriété Intellectuelle:



Convention de Berne:

but moral rights remain protected through the personality right
(Art. 27 al. 2 Civil Code & Art. 11 al. 2 LDA)
Is the HTML code of a website protected by copyright?
TC 6
Droit de prêt sur les locations d'oeuvres
TC 8
TC 9
Copies sur support électronique
TC 4
Redevance sur les supports vierges
Auteur salarié
Mécanisme de rémunération des auteurs
Adapté de J. Bühler (2015) "Droits d'auteur et rémunérations" Arbido 2, pp. 18-19
droit de prêt sur les prêts gratuits
In writing a new paper, is it possible to copy some parts of our previous paper?
Do the co-authors of a same (scientific) paper have the same rights on the content (creation) or does the first author have differents rights with respect to the others?
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