In a recent Article from National Geographic, author Julia Sklar goes in depth on the pitfalls of the recent “Zoom Boom” prompted by COVID-19; that is, the large-scale transition to synchronous online-based learning. The article paints a dreary picture of distracted students, freezing screens, and the newly dubbed “Zoom Fatigue” (excessive screen time) that, notwithstanding some benefits, result in an overall negative experience for both the student, and the educator.

Editors at the Harvard Business Review, CBC and BBC have attempted to address some of these issues by publishing articles delineating ways to avoid “Zoom Fatigue” and other negative consequences. Colleen Flaherty of Inside Higher Ed however questions its overall sustainability. Quoting Phil Hill, a partner at MindWires ed-tech consultancy, “the limitations of synchronous video are equity and access” and that no number of “guides” are going to help students who can’t afford laptops, internet, and quiet learning spaces during scheduled class times.

The article goes on to conclude that education institutions will need to focus their efforts on developing asynchronous teaching methods – methods in which students learn via videos, readings and other [offline] media – to better address issues relating to access and equity. Yet, synchronous formats have received the bulk of attention. Institutions have moved in droves to synchronous learning environments, leveraging online-video software that had existed pre-COVID such as Zoom and Microsoft Teams. And now other software companies, such as ClassEdu and Engageli, are popping up to ostensibly offer a more curated synchronous experience.

Asynchronous environments, on the other hand, have not received much attention. This may be due to educators merely having to replicate their existing lectures online with synchronous formats, whereas asynchronous environments require educators to source high-quality offline material that matches existing curricula, or otherwise create such content where it does not exist. This seems to be where the asynchronous classroom breaks down – the lack of high-quality asynchronous content for educators to leverage. The content-platforms that educators do have at their disposal, like YouTube and Udemy, have inherent drawbacks such as a lack of curricula alignment and poor quality assurance, pre-empting any possibility of institutionalized adoption.

There are efforts being made, most notably by publishers, to develop content for asynchronous learning environments. As textbooks are the de facto learning material in education curricula, and as publishers typically own all copyright and ensure all moral rights by the original author are waived, they are ostensibly the best suited to create such works (e.g. video explanations, audio-books, note abbreviations, etc.) However, textbook publishers deriving videos from their original titles is rather analogous to music publishers deriving remixes from their original tracks. The possibility exists, and they may retain the necessary copyright to do so; however, what principally lacks is the incentive. The publisher has no monetary impetus to engage in the (re)creation of other works, especially if it threatens the sales of the original track; the same could be said for textbook publishers and book sales. 

There does however exist an impetus for other creators to create such works. Over the years, the music industry has evolved to reflect this need by providing artists the means to acquire licences to create such derivative works.  In the US, compulsory licences for artists to cover songs can be purchased online with notice to the publisher. In Canada, the equivalent is accomplished through the CMRRA collective, responsible for issuing mechanical licences to musical derivationists. For music sampling subject to copyright, which includes the rights to use the voice of artists, private entities such as TrackLib are attempting to pre-clear tracks by negotiating advances and royalty rights on behalf of the final user.

Notwithstanding minor differences in definitions between literary and musical works in the Copyright Act, the concept of reproduction licensing is the same. Just as mechanical structure and lyrical composition of musical works are protected, so too are the paragraph structures and sentences in literary textbooks. The only difference is that the music industry has had decades to mature into what has emerged as a comprehensive system of collectives, private entities, and compulsory-licence regimes able to extend licences for the many layers of rights contained in musical compositions. While the education technology industry, still in its infancy, does not have such regimes, the development of such may help spur the creation of high-quality asynchronous content and thus the adoption of its educational method, which may elevate our education system to a point where we at least don’t complain about it (as much).

Written by Joseph Simile, Osgoode JD Candidate, enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.