During the Corona Virus 2019 (“COVID-19”) pandemic there has been a definitive shift to virtual teaching and resources for the benefit of students and teachers. The TTIPO applauds the introduction of information communication technology platforms by the Ministry of Education (“MOE”) which enable continuous learning in an online environment. This is facilitated through the MOE’s Schools Learning Management System (“SLMS”). The TTIPO also applauds the work of the local publishing industry through the Book Industry Organization of Trinidad and Tobago (BIOTT) and the Trinidad and Tobago Reprographic Rights Organization (“TTRRO”) for their undertaking to find resolution to the issue of copyright in educational material on digital platforms. BIOTT made stellar efforts to negotiate licensed content from publishers during the period April 2020 to September 2020 in light of the pandemic to facilitate education via the online platform.

However, whilst the COVID-19 pandemic has accelerated the efforts and urgency of transitioning teaching, learning and assessment to the virtual environment, it is simultaneously integral that the rights of copyright owners are respected, especially on virtual platforms.

Copyright is a property right which subsists in literary and artistic works that are original intellectual creations. Section 8 of the Copyright Act of Trinidad and Tobago Chap 82:80 sets out the nature of copyright and the rights comprised therein:

“8. (1) Subject to the provisions of sections 9 to 17, the owner of copyright shall have the exclusive right to do, authorise, or prohibit the following acts in relation to the work:

(a) reproduction of the work;

(b) translation of the work;

(c) adaptation, arrangement or other transformation of the work;

(d) the first public distribution of the original and each copy of the work by sale, rental or otherwise;

(e) rental or public lending of the original or a copy of an audio-visual work, a work embodied in a sound recording, a computer program, a database or a musical work in the form of notation, irrespective of the ownership of the original or copy concerned;

(f) importation of copies of the work, even where the imported copies were made with the authorisation of the owner of copyright;

(g) public display of the original or a copy of the work;

(h) public performance of the work;

(i) broadcasting of the work; or

(j) communication to the public of the work.

(2) The rights of rental and lending under paragraph (e) of subsection (1) do not apply to rental or lending of computer programs where the program itself is not the essential object of the rental or lending.”

Sections 8(1) (a), (c) and (j) of the Copyright Act Chap 82:80 are of particular importance with regard to the uploading of works on virtual platforms. Taking print material and disseminating same in print and/or virtually amounts to an adaptation, reproduction, and/or communication of the work to the public. Furthermore, sharing virtual works either in print or virtually, amounts to an adaptation, reproduction, and/or communication of the work to the public. All of these acts require the permission of the rights holders.

There is an exception to copyright under section 11 of the Copyright Act Chap 82:80 for teaching purposes however this exception is qualified in numerous ways, including by the principle of fair dealing and the availability of a collective licence. Section 11 of the Copyright Act Chap 82:80 provides as follows:

“11(1) Notwithstanding the provisions of section 8(1)(a), the following acts shall be permitted without authorisation of the owner of copyright:

(a) the reproduction of a short part of a published work for teaching purposes by way of illustration, in writing or sound or visual recordings, provided that such reproduction is compatible with fair dealing and does not exceed the extent justified by the purpose;

(b) the reprographic reproduction, for face-to-face teaching in educational institutions the activities of which do not serve direct or indirect commercial gain, of published articles, short works or short extracts from works, to the extent justified by the purpose, provided that—

(i) the act of reproduction is an isolated one occurring, if repeated, on separate and unrelated occasions; and

(ii) there is no collective licence available (that is, offered by a collective administration organisation of which the educational institution is or should be aware) under which such reproduction can be made.

(2) The source of the work reproduced and the name of the author shall be indicated as far as practicable on all copies made under subsection (1),” (emphasis added).

There is a balancing act which needs to be undertaken between the need to adapt to the virtual environment to ensure the continuation of education in our country, and the authors’ rights to exploit their works. Therefore, it is imperative that any adaptation, reproduction, and/or communication of works to the public, which includes the uploading of content to virtual platforms, be legitimate acts fostered through a license agreement between the Ministry of Education and the relevant collective management organization (CMO), in this case, the TTRRO. The TTRRO is the CMO responsible for such rights and is recognized internationally by the International Federation of Reproduction Rights Organisations based in Brussels, Belgium. Such a license would ensure proper compliance with the provisions of the Copyright Act Chap 82:80.

This situation is not unique to Trinidad and Tobago as is evidenced by the efforts to resolve similar issues in other countries including Jamaica (see hyperlink for Jamaican approach: http://jamaica-gleaner.com/article/news/20200921/education-minister-vows-establish-copyright-agreements-e-books).