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Study – Paul Keller
Currently, the educational exceptions do not work the same way in every EU country. This is because the existing InfoSoc Directive only gives Member States the option to implement in their national laws a copyright exception or limitation for educational purposes (Article 5(3)(a) InfoSoc Directive). Because this is an option, and not an obligation, some EU countries simply have no educational exceptions, while others have only narrow exceptions that do not align with the daily needs of teachers (e.g. where a teacher would be forbidden from showing a Youtube video in class) and students (e.g. where students cannot include more than a snippet of an image in their assignments).
The fact that the existing educational exceptions are so different from country to country creates legal uncertainty for teachers, promotes inequality among students and severely limits digital and online activities as well as cross-border collaboration. The DSM Directive attempts to harmonize this fragmented legal landscape, by requiring Member States to implement in their laws the same minimum set of rights for digital and cross-border teaching activities.
Article 5 of the Directive makes it mandatory for Member States to introduce in their national laws an educational exception giving educators and learners at educational institutions the freedom to use copyrighted materials in digital and cross border teaching and learning activities.
This mandatory educational exception allows educators and learners, in a formal education setting, to make certain digital uses (e.g. scanning, uploading, streaming) of copyrighted materials (e.g. images, text, video) without having to ask permission to copyright owners beforehand, provided that they respect the conditions defined in Article 5.
Unfortunately Article 5 also contains three optional provisions that allow Member States to restrict the benefits created by the exception via their national implementations:
- Recital 21 has the potential to fragment the exception across the EU, by introducing the option that each country can define the extent to which a piece of content can be used (e.g. 5% of a textbook or video in country A, 15 % of a textbook or video in country B); and
- Article 5(2) provides Member States with the option to take away the educators and the learners right to use a certain piece of content under the exception as soon as copyright owners start selling licences for said content.
- Article 5(4) provides Member States with the option to “provide for fair compensation for rightholders” for the uses made under the exception
As a result Article 5 leaves a lot of room for Member States to implement the exception. From the perspective of educational institutions a full implementation that does not make use of any of the above mentioned harmful options would be the minimum acceptable implementation scenario. Member states who want to create maximum space for educational uses of copyrighted works should also consider making full use of the policy space offered under the existing educational exception from the ecommerce Directive.
No Licensing override
Article 5(2) provides Member States with the option to implement the exception in such a way that it does not apply whenever there are suitable licenses available in the market that authorise the same uses as those allowed under the license. This would result in a situation where right holders can override the exception by offering licenses to educational institutions. This means that a teacher’s or student’s ability to benefit from the exception can be taken away by unilateral actions of rightholders, negating the effectiveness of the exception. Users will be denied the right to make uses under the exception, and would be forced to buy licenses for those uses. The licenses might not be subject to negotiation, might be disadvantageous for education institutions in terms of added costs, added bureaucracy, surveillance or uncertaintyabout the conditions attached to licenses. Given this it must be a priority to prevent all Member States from implementing the licensing override option in their national laws. This is not only important in the context of the educational activities covered by the license but also with an eye to the overall copyright system. User rights should not be conditional on the commercial motivations of rightholders and the licensing override mechanism introduced by Article 5(2) is setting a very dangerous precedent here.
No quantitative limitations
As a rule, an educational exception only allows the uses of parts of works, but if it is an image or a short poem, then it can be used in its entirety. From the perspective of educational institutions it is important to let practice (and in cases of conflict: court decisions) define what is right. The 3-step test enshrined in the InfoSoc Directive gives the flexibility users need in any given situation, while protecting the interests of copyright owners. Defining percentages (e.g. 15 % of a book) in the national implementations will lead to unfair situations. Moreover, if the Member States decide to make use of this option, and each defines different percentages, there is a big risk that we will end up with different rules in different member states creating the same fragmented landscape that currently prevents online and cross-border education in the EU.
An exception is not a free pass to use copyrighted content in ways that cause unjustified harm to the copyright owners. In General uses made under an education exception cause minimal to no harm, and as a result the justification for compensation is relatively weak. This is reflected by the fact that currently, 18 EU Member States have education exceptions that are completely or largely unremunerated. It is essential that these Member State continue to allow the new uses for free. For countries where the existing educational exceptions are subject to compensation, and where there is insufficient political will to make the new exceptions uncompensated it will be important that the administrative burden of such compensation schemes is minimized. This means that they should be negotiated on a flat rate and not on a per use basis and they should be collectively administered. In all scenarios it is of paramount importance that copyr ight owners can continue to issue free licenses (such as the Creative Commons licenses) which are an important element of the growing use of Open Educational Resour ces in educational settings by educational institutions throughout the EU.
The presence of these three optional elements in Article 5 makes it very likely that Article 5 will be subject to intense discussions and lobbying during the implementation in the Member States. Article 5 provides Member States with the most room for manoeuvre of all the provisions introduced by the DSM Directive. This is partially due to the fact that practices related to the use of copyrighted content in educational settings substantially vary across the Member States. In the best case the optional elements in Article 5 will be used to tailor the new exception to work with existing national practices. In the worst case these optional elements will be used to weaken the position of educational institutions to the benefit of rightholders. Given the fundamental importance of education for our societies, it will be important to make sure that this does happen. The best way to achieve this goal will be to empower educational stakeholders to make their voice heard in national implementation processes, for national political actors to pay close attention to this element in national implementation processes and for the European Parliament to closely monitor the implementation of the education exception in all Member States. At the time of writing of this report the only Member State with a published proposal for an implementation law were the Netherlands. The proposed law does not make use of the three problematic … Continue reading
|↑1||At the time of writing of this report the only Member State with a published proposal for an implementation law were the Netherlands. The proposed law does not make use of the three problematic options discussed above and proposes to implement the new exception as an expansion of the scope of the existing exception. In doing so the Netherlands provide a template that other MS should follow as much as possible.|