Expert talks intellectual property concerns amid COVID-19

WITH scores of teachers now delivering content to students online due to COVID-19-related stay-at-home orders, one intellectual property expert believes the issue of ownership of those works is in question.

Dr Natalie Corthsy, a lecturer at The University of the West Indies, Mona, who heads of the law faculty’s intellectual property stream, is of the view that one challenge that could arise is the “ownership of employee works, where teachers are asked to deliver online classes, where to do so requires them to create content”.

She was speaking during a public forum hosted by the university earlier this week.

“I think sometimes we don’t necessarily consider our teachers as having employment contracts with very specific deliverables which go beyond teaching face-to-face classes.

“And so COVID-19 has really put teachers in a position where it might be that they are going beyond what their employment contract has asked them to do by creating these new copyright works to fulfil an online teaching requirement, which, I think, for many teachers, this would not have been the case — especially at the primary level where I feel the education system is really struggling to grapple with what has happened with the cancellation of the Primary Exit Profile exams,” Dr Corthsy noted.

“Further, teachers are required to have their classes recorded, and this qualifies as a public performance, certainly under our Copyright Act, and a public performance where, pursuant to an agreement… an employee would then have copyright in that work and it wouldn’t necessarily vest with the employer. So this new performance, where you have a recording of your classes, raises a very interesting question if that was not specifically contracted for,” she said.

The UWI lecturer said another copyright challenge is in the area of joint authorship of works.

“Joint authorship issues arise where various artistes collaborate to create work online, and I’m thinking perhaps of the various artiste collaborations that have come on in the online stream in support of COVID-19. Lots of memes have also come on, short videos, photographs, just a plethora of copyright works where persons have been trying to, I guess, relieve themselves of the stress of COVID-19, and one can easily imagine how this could be problematic if authorship became an issue and if there was a desire to try and exploit those works beyond the COVID-19 experience,” Dr Corthsy pointed out.

She said, too, that yet another copyright challenge would be in relation to the matter of free access to works.

“Free access does not necessarily mean freedom to make it available to others. There’s a new so-called ‘Making Available’ right that Jamaica has incorporated in its 2015 Copyright Act — and this we had to do because of our signing on to the World Intellectual Property Organisation’s Internet Treaties — and this communication to the public, including making it available through hyperlinking, peer to peer, so that the public can access the works at another time of their own choosing, becomes a real problem. Because I would say, not only teachers, but certainly the wider public, is making available a lot of material that would be protected by copyright, and I don’t think that persons are necessarily aware that some of that ‘making available’ is, in fact, in breach of copyright law,” she stated.

In the meantime, however, Dr Corthsy said there have also been a few opportunities.

“We have seen the relaxation of copyright enforcement, and this had heightened interest in copyright works and increased their circulation, so this could result in increased demand for current and future works. So we might see where, for example, the Royal Opera House has made dance musicals and so on available freely [and] local entertainers are teaming up with sponsors to host online parties,” she noted.

“We have seen in the education forum where providers EduFocal and LearningHub have offered online classes for free; ReadyTV‘s collaboration with the Government, for example; banking institutions like Barclays and National Commercial Bank teaming up with publishers to offer free access to titles for a limited time, so I think that COVID-19 has also offered some opportunities in this regard,”she added.