Digital Learning and the International IP System

The emergence of digital technology has provided a unique platform for knowledge acquisition. The main features of the learning process are facilitated by such technology. It made it easy to create educational content, access it, remix it and most importantly distribute it.²⁵⁵ Computation devices, DVDs and broadband facilities have endowed us with an ecology in which we are able to learn in our houses, access journal articles in different parts of the world, write, mark and store our work or get visual insight into a phenomenon or historical event. How has the international IP (particularly the copyright) system interfered with this promising technology?

On 20 December 1996, WIPO hosted a diplomatic conference which aimed ‘to respond to challenges that global digital networks pose for intellectual property law.’²⁵⁶ As had been the case 112 years earlier,²⁵⁷ the influential parties in the negotiations were successful in introducing provisions that secured increased control for copyright holders and imposed increased liability on copyright users.²⁵⁸ On the

253 Sam Ricketson and Jane Ginsburg, above n 94, 957.

254 Margaret Chon, ‘Intellectual Property and Development Divide’, 27 Cardozo L. Rev. 2821 2005-2006, 2908.

255 William W. Fisher & William McGeveran, ‘The Digital Learning Challenge: Obstacles to Educational Uses of Copyright Material in the Digital Age’ (2006) The Berkman Center for Internet

& Society at Harvard University, 9.

256 Pamela Samuelson, ‘The US. Digital Agenda at WIPO’ (1996-1997) 37 Va. J. Int'l L. 369, 370.

257 In the Berne Convention.

258 In this context, Professor Pamela Samuelson notes that ‘Clinton administration officials sought approval in Geneva for international norms that would have (1) granted copyright owners an exclusive right to control virtually all temporary reproductions of protected works in the random access memory of computers; (2) treated digital transmissions of protected works as distributions of copies to the public; (3) curtailed the power of states to adopt exceptions and limitations on the exclusive rights of copyright owners, including fair use and first sale privileges; (4) enabled copyright owners to challenge the manufacture and sale of technologies or services capable of circumventing

147 same day, the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) were adopted. Both included provisions known as Digital Rights Management (DRM) or Technological Protection Measures (TPM).²⁵⁹ DRM comprises systems incorporated into digital content by various means such as encryption or watermarking to prevent users from accessing or using the content in a manner that is not permitted by the copyright owner.²⁶⁰ This includes the case of some scientific databases where access is denied for those who are not subscribers and cases where users are not allowed to copy texts from the content.

WCT and WPPT provide copyright protection ‘against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights’.²⁶¹ As a result, any manipulation made by content users in order to access or use copyright content protected under this provision is deemed illegal and will allow the copyright holder to sue the circumventer or even prosecute him or her under criminal law. Professor Pamela Samuelson suggests that those treaties were mainly influenced by the US Digital Agenda, which was promoted in the conference that led to their adoption in Geneva.²⁶²

Since the general framework of the Treaties ‘is compatible with the traditional principles of the US copyright law’,²⁶³ the detailed assessment made by Professor William W. Fisher and William McGeveran on the impact of the principles of US Copyright Law on digital learning is relevant to the international context.²⁶⁴

Fisher and McGeveran identified two main obstacles to digital learning:

 inefficient provisions in copyright law relating to educational use, the structure of the copyright exceptions and practical difficulties regarding the licensing of educational content;²⁶⁵ and

technological protection for copyright works.’ Pamela Samuelson, above n 256 372- 373. A quick look on the WIPO Internet Treaties reveals that the U. S Digital Agenda is almost fully reflected within the provisions of both treaties.

259 Art 11-12 of WCT, and art 18-19 of WPPT

260 William W. Fisher & William McGeveran, above n 255, 18.

261 Art 11of WCT.

262 Pamela Samuelson, above n 256, 437.

263 Ibid 370.

264 William W. Fisher and William McGeveran, above n 255, 2. The Fisher and McGeveran analysis is based on research, interviews, two participatory workshops with experts in the field of IP and technology and lessons drawn from four case studies.

265 Compare to the above mentioned criticism of the Berne Convention.

148

 extensive adoption of ‘digital rights management’ technology to lock up content.²⁶⁶

With regard to the latter, Fisher and McGeveran point out that DRM has become a tool to add extra copyright protection in favour of the copyright holders. It allows them to lock up digital content, preventing educators from obtaining access to the materials. Even educators are increasingly using DRM and thus imposing restrictions on other educational users. In April 2012, Harvard University declared that copyright holders who use DRM made the ‘scholarly communication environment fiscally unsustainable and academically restrictive’.²⁶⁷ DRM is increasingly used by right holders to set dangerous boundaries such as ‘no copying allowed for any purpose’.²⁶⁸ Moreover, DRM systems make it possible for rightsholders ‘to engage in price discrimination by offering differential access to works at a range of costs’²⁶⁹

By the introduction of prohibitions on circumvention of DRM applied to copyright materials, the international copyright system added an extra burden to the problem of access to education in developing countries, as these DRM is deployed by copyright owners to obstruct access to digital learning by locking volumes of valuable educational materials.²⁷⁰

In summary, the current global IP system was articulated and evolved in the developed world. It reflects the ideology underpinning the political and economic systems of developed countries. In its current shape, the IP system reflects a top-down approach towards regulating the production and dissemination of intellectual goods. This approach, consistently, fails to actualise a satisfactory level of global

266 William W. Fisher and William McGeveran, above n 255, 2, my story tells how a student from developing country could be negatively affected by DRM. During my candidature to the Master degree in Tripoli University in Libya, I needed access to certain scientific journals, such as

HeinOnline.com, those journals use DRM to prevent access and use of their material. QUT/Australia provided me with access to the majority of those journals. From my experience, I testify that having access to those journals enabled me to acquire and absorb knowledge in a way that I have not experienced in Libya with the shortage of the educational material. Unlike me, millions of students in developing countries do not have the chance to get access to that restricted materials and accordingly, would lose the chance to benefit from the huge stock of knowledge contained in the scientific databases.

267 Harvard University, the Faculty Advisory Council, Faculty Advisory Council Memorandum on Journal Pricing (April 17, 2012) available online:

<.http://isites.harvard.edu/icb/icb.do?keyword=k77982&tabgroupid=icb.tabgroup143448>.

268 William W. Fisher & William McGeveran, above n 255, 66.

269 Ibid.

270 Ibid 81.

149 social welfare for developing countries²⁷¹ especially with respect to basic human needs such as education.²⁷² On that basis, Alan Story, commenting on the issue of access to education, maintains that:

Since its emergence 126 years ago, the objective of the current international copyright system was not, nor it is nowadays, to ensure that children in developing countries have access to text books or that visually impaired children become literate by being able to access reading materials or so that knowledge can be shared among the world’s people or establishing good libraries in the universities of the developing world ‘or any of hundreds of other socially-valuable goals.²⁷³

Professor Margaret Chon calls for the existing top-down approach to be abandoned and for the adoption of an ‘IP from below’ which perceives IP from the needs of users, especially in developing countries, for access to intellectual goods for basic human development.²⁷⁴ She explains it ‘as a bottom-up approach to innovation capacity-building’²⁷⁵ which should link the regulation of IP to distributive justice in order to assist the developing countries to bear the disproportionate cost of the current international IP system.²⁷⁶ The fifth chapter of this thesis will reflect on this approach.

Providing sufficient access to educational material can be considered as part of Islamic Shari’a’s objective to safeguard ʿaql (intellect). It is through access to educational material that an individual promotes their intellect and actualises self-development. Therefore, the top down approach of the current IP system seems to run afoul of Islamic Shari’a’s objective to safeguard ʿaql.

271 With regard to access to educational material, the CIPR Report expresses concern regarding the top-down approach of the current international IP system; it states that ‘evidence shows that weak levels of copyright enforcement have had a major impact on diffusion of knowledge and knowledge-based products ... throughout the developing world. Indeed, it is arguably the case that many poor people in developing countries have only been able to access certain copyright works through using unauthorised copies available at a fraction of the price of the genuine original product. We are therefore concerned that an unintended impact of stronger protection and enforcement of international copyright rules as required, inter alia, by TRIPs will be simply to reduce access to knowledge products in developing countries, with damaging consequences for poor people.’ CIPR Report, above n 211,101.

272 Margaret Chon, ‘Intellectual Property ‘from Below’, above n 254, 805.

273 Alan Story, ‘Balanced’ Copyright: Not A Magic Solving Word’ (27 February 2012) Intellectual Property Watch, available online at:

<http://www.ipwatch.org/2012/02/27/%E2%80%98balanced%E2%80%99-copyright-not-a-magic-solving-word/>.

274 Margaret Chon, ‘Intellectual Property ‘from Below’: Copyright and Capability for Education’, above n 254, 813.

275 Ibid.

276 Ibid 816.

150