MEP Stihler means well for education, but there is serious room for improvement

The Birth of Minerva
Even the best exception is broken with licensing
Licentie

We welcome the positive sound that MEP Stihler’s draft opinion for the Committee on the Internal Market and Consumer Protection (IMCO) brings to the copyright debate. She proposes to broaden the TDM exception to a level of ‘right to right is the right to mine’, hears the clear call from the cultural heritage institutions to fulfill their public task of providing (online) access to culture, and proposes to delete the unsubstantiated article 11 of the proposed directive on copyright in the Digital Single Market.

For education, the Scottish MEP has aims that strongly resonate with us, as she noted in her introduction:

Also, in the field of the use of works and other subject matter in teaching activities (Article 4), the Rapporteur believes that the exception should benefit not only all formal educational establishments in primary, secondary, vocational and higher education, but also other organisations such as libraries and other cultural heritage institutions, providing non-formal or informal education. The Rapporteur believes that the best solution is to have a single and mandatory exception for all types of teaching, both digital and non-digital, formal and informal.

These are more-or-less the same points we make in our position paper on the draft directive. In it, we argue that ‘the devil is in the detail’. The analysis of MEP Stihler’s proposed amendments appears to require the same title. While we can do less than fully applaud her aims, there is some serious room for improvement in the actual proposed text. We appreciate amendments that strengthen the exception, but note at the same time that even the best exception will be broken if licensing solutions are favored by the legislator.

Education is not just ‘digital’ or ‘non-digital’

MEP Stihler elegantly re-phrases the title of article 4 in AM35 to ‘Use of works and other subject-matter in teaching activities’ from ‘…digital and cross-border teaching activities’. By doing so she removes the artificial barrier introduced by the Commission between ‘digital’ and ‘non-digital’ uses, which does not exist in the exception contained in the Information Society Directive for teaching and research. We applaud this. For legal clarity, and to reverse the chilling effect now present in educators using in-copyright material to illustrate their teaching, it is important to state what is and is not allowed. Having a barrier between ‘digital’ and ‘non-digital’ only makes sense from the perspective of the  (slow) historic progression of copyright law, not in the (rapidly changing) daily practice of educators.

Still licensing as the solution

Unfortunately MEP Stihler did not suggest to remove the much debated article 4(2) relating to the licensing override to the proposed exception. While she does introduce a welcome review mechanism to the availability of such licenses in three years after the date of entry of the Directive, we cannot emphasise enough that licenses are simply not the solution for education. Many educational institutions will be ill-placed to negotiate license terms or will be forced to accept the terms dictated by the licensor, while others will not even be able to consider purchasing a license, due to the costs involved.

Broadens the scope: but not far enough

We were happy to see that MEP Stihler broadens the scope of the exception to include cultural heritage institutions (CHI), as they take up an important role in education in Europe. However, we do not agree with only broadening the scope to CHI as she proposed in AM39. There are many other persons and institutions, such as NGO and programmes aimed at vocational training, that would very much benefit from being included in the exception, as the Rapporteur herself notes in her amendments for recital 15 and 16 of the proposed directive (AM 4 and 5). We argue that the best way forward in terms of scope of the exception is to put the education purpose forward, not the person or entity performing the education.

Great addition of ‘scientific research’

The Rapporteur also rectifies an oversight from the Commission by including the words ‘scientific research’ within the exception in AM36, as was the phrasing of the Information Society Directive exception. As our friends at LIBER have argued:

Since the activities of teaching and research intertwine inseparably at most universities and research organisations, the natural step is to propose a copyright exception for the purposes of teaching and research.

The much needed non-contractual override

Thankfully MEP Stihler also recognised the great value of the addition of a non contractual override provision in the education exception proposed, as she noted in AM38, in the same language used by the Commission in its proposal for the text and data mining exception in article 3 of the proposed directive. Rapporteur for CULT Marc Joulaud also already noted this in his draft opinion.

In short, while we applaud MEP Stihler’s aims for education and there are several positive proposals in her amendments. But we need to do better for education. For more information about what education needs, we refer to the joint letter on copyright reform for education, as well as the COMMUNIA position paper.

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