Simple is beautiful. Copyright exceptions for education

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Being a teacher in 2015 is both easier and more difficult than it was 30 years ago. It can be more difficult as there is pressure to follow new trends in online and digital technologies, the Internet of things, social media, and a push to adopt a more interactive approach to teaching. But there are new tools and and practices to ease these new expectations. Almost any educational materials that teachers wish to use are now at their fingertips. No longer do educators need to spend their lives searching through physical libraries or collecting stacks of CDs or DVDs for viewing in their classes. Today, much of this content is available online with a simple click. But therein lies another difficulty. Copyright. Even though almost anything is now available to view, not everything can be legally used. Or–perhaps even worse–it is not clear whether a teacher or student can use it, or under what circumstances.

EXCEPTION?

What teachers legally can and cannot use is defined by educational exceptions and limitations within national copyright laws. Set out by the EU InfoSoc Directive, exceptions and limitations are not a mandatory rule within EU member states, which means member states can choose to adopt the exception or not, and within reason interpret the exception to conform to their own ideas. Since the early 2000s, the InfoSoc Directive rule of “use for the sole purpose of illustration for teaching or scientific research” has been implemented in various different ways. Some countries literally translated the provision into their legal system, while others allowed some creativity in its implementation. But to be sure, 28 member states means 28 different legal regimes. This raises several questions. What is the reason why in 2015 teachers in Poland enjoy a different set of rights than teachers living in Slovenia, Finland or Portugal?

WHO?

First of all, the focus of the educational copyright exception should be dependent on who uses the work but for what purpose the work is used. In other words: anyone who wants to participate in the education process (in the active or passive form) should be treated the same way. The exception should not be limited to particular groups of people, such as primary school teachers. Education needs the same amount of freedom and flexibility, regardless if taken at a university or primary school, public or private school, local club-room, library or NGO. Such a rule already exists in the InfoSoc Directive, but member states interpret the rule differently. Why should libraries or NGOs be exempted from using protected resources while engaging in educational activities? What is the public benefit in establishing different rules for, say, an art class and an extra-curriculum study group, when both of those educational environments are  run by the same teacher for students interested in contemporary cinema?

WHAT?

Second, it is unclear what kind of copyright protected works may be used under the exception for education. Is it merely text-based works, or does the exception also cover audiovisual works (movies), music, pictures, or others? Are teachers allowed to create educational materials using fragments from study books or photographs found on the internet? Can students be shown a complete Benigni “La vita e bella” movie to discuss 20th century WWII literature? Can an English teacher play a movie with the original audio track during his class so that students learning foreign languages experience the language in its native presentation? In our opinion and according to the InfoSoc Directive all those questions should be answered positively. Unfortunately, when we examine the laws of member states, the answer is either ‘no’ or unclear. This gives rise to either copyright notices by publishing houses or a-solution-for-everything “copyright umbrellas” offered to schools to allow them avoid a risk of a lawsuit. Legal certainty for education and thus clear provision on what is the scope of exception is not only a tool to avoid unnecessary costs of umbrellas, but it would also allow to avoid risk in the field of copyright notices.

HOW?

We need technological neutrality in the law. We expect that teaching and learning will follow new technologies and embrace the digital era, but the law is not flexible enough to cope with these societal changes. The educational copyright exception is unclear whether it covers the use of protected works within education regardless of their medium (physical or digital), online or offline. As noted, Europe needs a copyright exception that empowers teachers with sufficient freedom to do their job the way they want and need. Copyright should not be a barrier in providing high quality, flexible education.

LICENSING

We are fully aware of the possibility to obtain licenses to use resources for educational purposes. However, in our opinion licensing is not a solution. Why? First of all, you have to obtain a license. You need to know to whom you should apply, go through rarely automatized procedure, wait until the license is confirmed. Instead of doing education, you do the legal work. Secondly, licenses are hardly ever plain authorizations to use copyright-protected work. There is always a number of responsibilities, obligations, declarations and warranties: regarding the origin of copyright protected work, duty of care regarding the protection of work against further infringement, duty to impose licensing conditions to end users, etc. In general – a lot of additional obligations imposed on user. This is why in our opinion the educational exception should be overriding all contractual provisions limiting the scope of it or imposing other requirements onto their users. Anything that is beyond the statutory rules should be void.

LESS IS MORE

Education needs to be effective without complicated solutions. The vast majority of teachers are not lawyers, so if a proposed solution to overcome the barriers of copyright is confusing or difficult to apply, it will not be used. The perfect copyright exception for education should focus only on the issue of whether the use of a copyright protected work is made for educational purposes. If it is, then no further formalities, requirements, or limitations should be required to use it. The copyright exception for education should be binding for every member state, no matter what legal tool would be used to implement it in a particular country. The discrepancies that exist at this time are showing that an “a la carte” approach to copyright exception (at least for education) isn’t working.

DIGITAL SINGLE MARKET

We fully support the European Commission’s statement regarding the Digital Single Market that there is a “need for greater legal certainty to enable researchers and educational institutions to make wider use of copyright-protected material, including across borders, so that they can benefit from the potential of these technologies and from cross-border collaboration will be assessed, as with all parts of the copyright proposals in the light of its impact on all interested parties”. Pillar III of the Digital Single Market Strategy sets out action 16: “support an inclusive digital society where citizens have the right skills to seize the opportunities of the Internet and boost their chances of getting a job”. The educational copyright exception is a perfect match for a call to action in this area!

BEUC highlights consumer confusion in everyday uses of copyrighted material

BEUC, The European Consumer Organisation, has released an interesting fact sheet pertaining to confusion and uncertainty in consumer use of copyrighted materials. BEUC surveyed relevant stakeholders about the current copyright reform debates in the EU. These stakeholders ranged from collecting societies to academics and government ministries, and the conclusions drawn from their answers are both predictable and problematic: it seems no one can agree on the legality of using copyrighted content.

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BEUC took simple and everyday examples on how consumers interact with copyrighted material (for example, making private copies of DVDs, selling an ebook online, or using a VPN to access your Netflix account while on holiday) and asked the stakeholder whether they believed the act was legal or not. Continue reading

Reda report: the good, the not-so-bad and the ugly compromise amendments

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Back in April we published our list of the 10 worst and the 5 best amendments to Julia Reda’s draft report on the implementation of the InfoSoc Directive. Tomorrow the Legal Affairs committee (JURI) of the European Parliament will vote on these amendments to the draft report. In light of the upcoming vote and given that Julia Reda has just published the final voting list – including the compromise amendments – it is time for one last round of analysis.

As the name implies, compromise amendments are amendments the different political groups have agreed on as replacements of sets of (often contradictory) amendments related to a specific section of the draft report. Given that they reflect a partial consensus among some of the political groups, they are relatively likely to be adopted. If a compromise amendment (AMC) is adopted, the individual amendments that they replace are automatically rejected. If a CAM is rejected then all original amendments will be voted on individually.

In the following we are taking a quick look at the compromise amendments that deal with the issues we’ve previously highlighted. If you haven’t done so already, you may want to read our initial analysis first.

The Good

Three of our five best amendments have found their way into compromise amendments: AM 264 – which clarifies that what is in the public domain must stay in the public domain (in line with our policy recommendation #5 and with the Europeana Public Domain Charter) – has been subsumed into AMC 6, making it much more likely to be adopted. Having this compromise amendment adopted would be a significant win for the public domain. Continue reading

More licenses are not the solution for text and data mining

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Earlier this week  LIBER released a response to the STM Association’s statement about text and data mining (TDM). The STM Association asserts that legal certainty already exists for TDM via publishers’ licences, and that creating copyright exceptions for text and data mining activities would undermine the investment incentives for ensuring that high-quality content is available.

LIBER refutes these claims. First, they say that publishers’ licenses for TDM are not straightforward or easy to understand.

Licences could never be described as simple; they are highly complex and can take months or even years to complete. They often refer to laws in other jurisdictions and in most European countries they can override the flexibilities that exceptions are intended to provide. Many licences explicitly forbid TDM associated activities such as crawling of content and the depositing of data in institutional repositories.

Second, LIBER argues that forcing researchers to acquire licenses to engage in text and data mining will divert investment money away from conducting important research, and instead will be used to pay for license compliance and monitoring activities. Instead, they say that a copyright exception for TDM would actually promote investment, not inhibit it.

An exception for TDM can act as an investment incentive. By implementing the exception for TMD proposed by the Hargreaves review of UK copyright frameworks, the UK government has made a clear statement that legal clarity around activities such as TDM will spur innovation and growth. In the wake of the implementation of this exception tools to support TDM and improve the quality of content have already begun to emerge. Researchers in the UK have developed their own openly available tools for conversion of text files into structured standardised formats.

COMMUNIA strongly supports the notion that “the right to read is the right to mine.” We encouraged the development of clear rules for researchers who must be able to read and analyse all information that is available to them through text and data mining. We are an original signatory to the Hague Declaration on Knowledge Discovery in the Digital Age. And we criticized the development of bespoke licenses, which would create confusion and claim to grant permission to do many things that re-users do not need permission to do.

Copywrong website launched: help fix copyright

Today a new website was launched in the amp up to the vote on the Report on the Implementation of the InfoSoc Directive and its amendments on June 16 in the European Parliament’s legal affairs (JURI) Committee. The website aims to mobilise internet users to help save copyright reform at European level, in face of what is described as sabotage. It features a short film that explains in common language why copyright reform needed to make it functional in modern society:

The website, copywrongs.eu, also lists some of the most important amendements that need extra support during the vote. There is much to like on this list, including some reforms that are among our priorities: safeguarding the public domain, harmonising exceptions across Europe or providing a strong educational exception (which does not exist today). The list also includes ending geoblocking and speaks in favor of the right to quote to include video’s and sound recordings.

For more information on what is at stake in the vote, read our blogpost on the 10 worst and 5 best amendements on the Report.

The website was created by Pirate Party MEP Julia Reda (who wrote the Report) together with copy-me.org, a platform that shares information on culture and the information society. The site is available on GitHub for forking.

Why licensing is not always the solution

Last week we took part in a breakfast meeting at the European Parliament under the theme “Why licensing is not always the solution”. The meeting was hosted by MEP Jytte Guteland and co-organised by Communia together with Copyright for Creativity, IFLA, EBLIDA, and LIBER. Our goal was to demonstrate the need for reforms that go beyond licensing-based solutions, and focus in particular on supporting and expanding exceptions and limitations to copyright.

Alek Tarkowski, speaking on behalf of Communia, talked about the importance of exceptions and limitations as one of the building blocks of the Public Domain. As such, they are fundamental for creating breathing spaces within the copyright system, in which public interest goals can be achieved without copyright-related limitations.

The insufficiency of licensing-based solutions was a clear outcome of the “Licenses for Europe” structured debate in 2013. Yet in recent weeks licensing-based solutions have started to resurface in the public debate on copyright. The European Publishers Council pushes for self-regulatory solutions (that is licenses) in its submission to the Digital Single Market consultation. CISAC, in its letter to MEP Reda, goes even further and describes exceptions and limitations as damaging to artists and their families.

It is in this context that we are asking for the European legislator to review the scope of the exceptions and limitations that are currently in force – and which were defined in the InfoSoc Directive almost 15 years ago. We need strong, harmonised, re-imagined exceptions and limitations as a fundamental building block of a copyright system fit for the digital age.

While not the focus of our position paper, free licensing is sometimes seen as a specific case of self-regulation. The success of Creative Commons licensing has been raised in the past as an argument in favor of a focus on licensing-based solutions. We are against such arguments and see free licensing as another founding element of the Public Domain. It is worth reminding in this context the Creative Commons statement in support of copyright reform.

Our position is fully described in our new position paper, “The importance of exceptions and limitations for a balanced copyright policy. ​Licensing alone will not secure user rights”. You can find it, alongside previous statements, in our “Policy Papers” section.

UPDATE: IFLA and Copyright for Creativity have also published posts about the meeting.

Don’t mess with the right to link: Savethelink.org

(Hyper)links are the fundamental building blocks of the web, but the practice of linking has come under attack over the last few years. If copyright holders are able to censor or control links to legitimate content, it could disrupt the free flow of information online and hurt access to crucial news and resources on the web.

While many internet users may take for granted that no one requires permission or is forced to pay a fee to link to another place online. But this isn’t the case everywhere. Copyrighted content holders (including news organizations, media, and entertainment sites) around the world are working to remove the right to free and open linking, and the threat is more present than you may think.

Today a coalition of over 50 organizations (including COMMUNIA) from 21 countries are launching Savethelink.org. The campaign aims to raise awareness about the issue and prompt action to urge decision makers to protect the practice of free and open linking online.

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COMMUNIA representative Lisette Kalshoven, Kennisland Advisor on copyright, heritage and open education, said, “Europe is in danger of limiting access to culture and knowledge by undermining the right to link.” Continue reading

Hague Declaration calls for IP reform to support access to knowledge in the digital age

Today COMMUNIA joins over 50 organizations in releasing the Hague Declaration on Knowledge Discovery in the Digital Age. The declaration is a collaboratively-created set of principles that outlines core legal and technical freedoms that are necessary for researchers. The principles would allow them to be able to take advantage of new technologies and practices in the pursuit of scholarly research, including activities such as text and data mining. The drafting of the declaration was led by LIBER, the Association of European Research Libraries. It was developed through contributions from dozens of organizations and individuals. COMMUNIA is an original signatory to the declaration.

One of the key principles recognized in the declaration is that intellectual property law does not regulate the flow of facts, data, and ideas–and that licenses and contract terms should not regulate or restrict how an individual may analyze or use data. To realize the massive, positive potential for data and content analysis to help solve major scientific, medical, and environmental challenges, it’s important that intellectual property laws–and private contracts–do not restrict practices such as text and data mining. Continue reading

EU Digital Single Market strategy: a starting point for copyright reform

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Today the European Commission presented an ambitious package of reform proposals known as the Digital Single Market (DSM) Strategy for Europe. Among other topics like ‘Affordable high quality parcel delivery’ and ‘Building the data economy’ the DSM strategy represents the first concrete announcement of upcoming changes to the European Union’s outdated 2001 Copyright Framework.

As part of the strategy the Commission wants to ensure “better access for consumers and businesses to online goods and services across Europe” which “requires the rapid removal of key differences between the online and offline worlds to break down barriers to cross-border online activity”. While at this point the Commission is far from proposing a general overhaul of the copyright system the DSM strategy contains promising language. It also shows that those in the Commission who are looking for meaningful changes to the European copyright rules (led by Vice President Ansip) have managed to keep the upper hand on their more conservative colleagues (led by Commissioner Oettinger) who so far have mainly been interested in expanding copyright and stepping up enforcement.

In terms of concrete copyright reform the Commission is announcing that it will make “legislative proposals before the end of 2015 to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU, including through further harmonisation measures”. The Commission’s proposal highlights the following areas that the Commission wants to address “ (i) portability of legally acquired content, (ii) ensuring cross-border access to legally purchased online services while respecting the value of rights in the audiovisual sector, (iii) greater legal certainty for the cross-border use of content for specific purposes (e.g. research, education, text and data mining, etc.) through harmonised exceptions,(iv) clarifying the rules on the activities of intermediaries in relation to copyright-protected content and, in 2016, (v) modernising enforcement of intellectual property rights, focusing on commercial-scale infringements”. Continue reading

Reda report: the 10 worst and the 5 best amendments

In January MEP Julia Reda presented a draft report on the implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (a.k.a the Copyright Directive). This draft report has proven to be hugely controversial and as a result 556 amendments (1,2) have been tabled in the Legal Affairs committee (JURI) alone. A helpful overview of the full parliamentary process can be found over at edri.org.

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While the JURI committee is trying to arrive at compromise amendments ahead of the vote on 6 May we thought that it would be useful to highlight the best and worst amendments that have been tabled in reaction to the report. The main criteria for identifying the best/worst amendments are our 2011 policy recommendations and our recent position paper on the on the review of the EU copyright laws. As the vast majority of the amendments are attempting to reverse the positions expressed in Reda’s draft report, the 15 amendments highlighted below can only offer a glimpse of what is at stake. So while we are recommending to vote against the 10 worst amendments listed below, this is by no means a complete voting list as there are many others which are just as bad (and some that are slightly better).

The ten worst amendments…

#1 We don’t care for the Public Domain

AMs 252-257 Constance Le Grip, József Szájer (2x), Angel Dzhambazki, Sajjad Karim, Axel Voss, Therese Comodini Cachia, Eva Paunova, Pavel Svoboda, Marc Joulaud, Giovanni Toti, Luis de Grandes Pascual, Rosa Estaràs Ferragut, Sabine Verheyen
6. Calls on the Commission to safeguard public domain works, which are by definition not subject to copyright protection and should therefore be able to be used and re-used without technical or contractual barriers; also calls on the Commission to recognise the freedom of rightholders to voluntarily relinquish their rights and dedicate their works to the public domain;
delete

Easily the worst amendment (or rather set of amendments, since there are multiple identical versions of this one) is AM 252 that proposes to delete Paragraph 6 of the draft report.This paragraph calls on the Commission to safeguard the Public Domain and to recognise the freedom of rights holders to voluntarily relinquish their rights and dedicate works to the Public Domain. At least the first part of the original paragraph should be something that every participant in the discussion about the future of the EU copyright rules can agree with, unless there are really people who want to ensure that all culture and information is privately owned. Continue reading