Practice for a European policy dilemma

Copyright issues and legal restrictions on teaching serial drama

By Kim Toft Hansen, 4 June 2024

“There is, of course, clearly something legal in relation to what the rules are for what we are actually allowed to show. […] After all, there are limitations to where we can find the material. If it is material that is available through accessible sources, then we may be able to show it, but it is not certain that it is really something we are allowed to do. […] So, it’s not that there is no help or courses, but it often feels like […] that you’re kind of lagging behind. […] [We’re missing] clips of varying lengths, so there are both the short introductory ones, but maybe also some longer ones where you could do a deeper analysis.”

Female Danish high school teacher

Teachers using serial drama as tools and cases during teaching often come across legal restrictions and copyright issues. This blog entry discusses this specific problem and presents a practice to solve this issue over time.

In a research research-action project like GEMINI using serial dramas as primary cases to teach gender issues, it becomes a severe issue that copyright restraints often prohibit not only the spread of usable teaching content, but also presents strict obstacles for teachers showing material for students in preparation and during teaching. As documented through focus group interviews, attention from students – in our case, high school students – is easier to gain if the content analysed touches base with their own interest in serial drama. Very often, this interest is guided towards international series produced for global networks or streaming platforms. When this is the case, it is very hard to locate relevant teaching material for teaching European students in readymade databases for teachers, which often contains great material, but not always the material that captivates contemporary students.

The problem is not as such copyright restrictions. According to GEMINI interviews with especially Danish teachers, however, many teachers experience rigorous copyright issues anyway, which has to do with vague copyright legislation around quoting and using copyrighted material. For researchers, the problem is that practices from, for instance, literary research, does not directly transfer to practices in media studies, although much media scholarship is rooted in similar ‘text studies’ from literary research. In essence, it is common practice that scholars of literature quotes copyrighted work as part of their research and teaching practice, but this has not fully become common or accepted practice within media studies. This lack of practice stems from strict copyright restrictions that often makes local institutions follow copyright legislation rather than “the quotation right” (in a Danish context) or the rights to ‘illustrate during teaching’ (in an EU context).

GEMINI for a liberal interpretation of copyright

As GEMINI works with and presents material on popular serial drama, vague copyright legislation is an obstacle that needs specific attention for the project to really work. The main thesis of the research project is that popular and often contemporary and usually specific series may facilitate a constructive dialogue on gender issues and difference discourses. For this reason, GEMINI must move towards a more liberal publication and communication ethics rather than following the widespread commercial interpretation of copyright legislation. In practice, GEMINI needs to set up clips and excerpts from serial dramas through different platforms to make sure that these relevant clips a ready for teaching without the need to access platforms behind a paywall.

As mentioned in GEMINI Description of the action (p. 24), “[c]opyright and other forms of intellectual property will be honored”,  which means that GEMINI should keep within the legal restraints and exceptions of the contemporary copyright legislation. As pointed out by Priora, Jütte, and Mezei (2022), however, there are a number of concerns and uncertainties tied to article 5 of the 2019 EU Directive on Copyright in the Digital Single Market (CDSM), which includes the copyright exceptions for teaching at a European level. The exception only refers to “illustration for teaching in the digital environment”, which creates uncertainties, since it is not clear what this “digital environment” specifically refers to.

Priora, Jütte, and Mezei also stresses that the directive “leaves plenty of flexibility for Member States to adjust the digital education exception or limitation to their specific needs” (558). Such a flexibility may lead to a practice where local legislation appear similarly vague, and as a result institutions may naturally be very cautious, fearing expensive fines by international conglomerates. In Denmark, for instance, this is the case, which means that all local teacher interviews mention the difficulties in teaching serial drama without access to the series that they wish to teach (see D3.2).

Fair use for critical scrutiny

Regarding illustrations and video material, GEMINI will follow common practice in academic publishing, involving a fair use clause in relation to illustrations and video excerpts that are integrated in academic scrutiny and used for fair clarification purposes, e.g. referenced as teaching material. Since GEMINI is a publicly funded and open, non-profit research project, the project has no resources for acquisition of expensive copyright for serial dramas. In contrast to copyright, GEMINI maintains academic quotation rights (in line with how it is common practice to quote literary excerpts in literary studies), which means that we will offer images, audiovisual clips, and video excerpts for research and teaching purposes.

Quotation rights for scholars and fair use of material follow an accepted practice from the journal Academic Quarter, the journal hosting the GEMINI special issue. The journal is under open-source management at Aalborg University, and this practice has been acknowledged by the local university leadership. Other journals such as 16:9, InTransition, and Kosmorama (the last one hosted by the Danish Film Institute) follow the same approach to copyrighted material. The intention is, then, that using media excerpts for scholarly scrutiny, e.g. in teaching material, builds practice and sets a precedence for common usage of copyrighted material for public beneficial purposes (in GEMINI’s case, teaching gender equality to European citizens through serial drama). Hence, the GEMINI proposition to ‘nudge’ practice in a direction where researchers and teachers use copyrighted material in a research and teaching context when the material used is under critical scrutiny, i.e. researched, analysed and discussed specifically as part of teaching or in research publication and dissemination.

Using relevant – not just available – material in teaching

By establishing this approach to copyright issues, GEMINI addresses a problem that has come up in the GEMINI teacher interviews. Teachers in European high schools are principally reliant on official sources or open access material for teaching media literacy or media studies, including teaching serial drama. For teachers, it is necessary to go through portals and platforms that service teachers with material made available through copyright agreements with the copyright holders, or use available local public service providers, or use publicly available material through commercial platforms, e.g. YouTube (even using public service material or publicly available material may sometimes be mentioned as uncertain material by teachers). This poses a significant issue for teachers since open material freely accessible is not always – or in the case of GEMINI’s interest in serial drama rarely – the most relevant material.

To present an opportunity to teach material that has been deemed relevant by high school students (through GEMINI focus groups or popular media trends), GEMINI approaches copyrighted material from a liberal fair use perspective supporting the right to quote for researchers and teachers. Essentially, this does not decrease revenues or affect the commercial opportunities for the copyright-holders since viewers of such material would not anyway have gained access through regular ways. Rather, this approach may even perform as a marketing platform for commercial players such as streaming services or other commercial players (if you show a clip or an episode from a compelling series, a fair guess would be that students seek out the material for a continued binge). In the end, GEMINI wishes to establish legal precedence for how copyrighted material should be freely used for critical scrutiny in research and teaching activities.

Besides GEMINI wishing to affect the quotation culture around copyrighted audiovisual material through precedence, GEMINI scholars suggest an impact on copyright policies for researchers and teachers. Essentially, the GEMINI position on using copyrighted material in teaching situations is that researchers and teachers should be allowed to present relevant – and not just freely available – material if the commitment is academic and not entertainment. GEMINI suggests a policy change (or more precisely, clarification of the exception from copyright legislation for teaching and research purposes) on an EU level to be performed and ratified on a local level across the European territories.

Parts of this blog entry has been presented in the GEMINI D&C Plan (D6.1).

References

Priora, Giulia,  Bernd Justin Jütte, and Péter Mezei. 2022. ”Copyright and Digital Teaching Exceptions in the EU: Legislative Developments and Implementation Models of Article 5 CDSM Directive”. In International Review of Intellectual Property and Competition Law 53, p. 543-566.