For several months now, we have been arguing that ‘the devil is in the detail’ when it comes to the Commission’s education proposal. MEP Therese Comodini Cachia draft amendments to the proposed exception for digital and cross-border teaching activities, while introducing some improvements, do not meet the educational community expectations to see a better copyright reform. And, worst still, they represent a serious step back in relation to the existing EU acquis in the area of educational exceptions.
The licensing fight continues
We appreciate MEP Comodini efforts to mitigate the negative impact of article 4(2), which allows Member States to give precedence to licenses over the proposed exception. However, we believe she misses the opportunity of getting rid of the Commission’s infamous proposal, while still protecting the extended collective licensing (ECL) schemes that exist in the Nordic countries.
Under the Commission’s proposal, any licensing offer could rule out the application of the education exception, thus negating much of the substance and effectiveness of the exception. MEP Comodini seems to recognize that many educational institutions would be ill-placed to negotiate license terms or would be forced to accept the terms dictated by the licensor, and thus introduced some substantial changes to article 4(2). Under Ms. Comodini’s proposal, the unilateral and discretionary offer of the rightholder to conclude a licensing agreement is not sufficient to deny the educational establishment concerned the right to benefit from the educational exception. An existing contractual relation is needed to override the exception.
According to a study commissioned by the EC in 2016, 31,3% of educators pointed out that “I or my school could not afford the price of the license”, when discussing copyright-related restrictions experienced by them that have an impact on their daily activities. Taking that pressure off the educational institutions is, thus, an important step forward.
We would nevertheless argue that maintaining article 4(2) is unnecessary to protect the ECL schemes, as the term “limitation” in article 4(1) encompasses compulsory or statutory licenses.
Narrowing down the existing EU educational exception
The issue of exceptions, in particular for education, has not received the attention that it deserves in the whole debate on the proposed directive. The general feeling is that proposing a mandatory exception for educational purposes is by itself a positive approach to a copyright reform. But the best option for education would have been to harmonize the existing EU education exception (embodied in article 5(3)(a) of the InfoSoc Directive), instead of creating a new one, with a much narrower scope, as the Commission did.
The narrative created in the Commission’s proposal that, in the field of education, “digital technologies permit new types of uses that are not clearly covered by the current Union rules on exceptions and limitations” is not correct, and we have to deconstruct it. The InfoSoc educational exception is technologically neutral. There is absolutely no question about it, as evidenced namely by a study commissioned by the EC.
Despite our (fact-based) arguments, the belief was that “no one” wanted to touch on the InfoSoc exceptions and limitations, and thus making the InfoSoc educational exception mandatory was out of question. Until now. MEP Comodini proposes to introduce changes to the InfoSoc educational exception. Worst of all, her proposal narrows down the scope of the existing exception.
The JURI rapporteur wants to limit the use of copyrighted materials under the existing national rules “to the specifically limited circle of those taking part in the teaching activity”. While this may seem a harmless proposal, it will exclude parents (namely parents in recitals and other school events) and non-teaching staff from the activities where copyrighted materials are being used, which is totally unacceptable.
Accreditation does not fit modern education
We have always argued that the focus of the education exception should be on the educational purpose of the use, and not on the type of person or institution doing the teaching. At first sight, MEP Comodini seems to agree with us, but she ends up missing the chance to provide real support to education as a “lifelong learning process”.
The JURI rapporteur acknowledges that:
Educational programmes are offered by schools, universities, private tuition organisations, NGOs, and other structures. (…) The exception is about teaching and not about educational establishments. Making the exception on teaching subject to the place where teaching takes place is incompatible with the goal of lifelong learning. The exception must therefore be directly linked to ‘teaching activities’, regardless of the structural context.
Despite this wonderful statement, MEP Comodini proposal does not introduce much of a change in practice. The quote above suggests that the JURI rapporteur’s proposal is not about educational establishments, but about teaching activities. However, for Ms. Comodini, “truly educational activities” are only those that take place either on the premises of an educational establishment or “within the framework of an education programme recognised or accredited by the relevant national authority”. Accreditation systems can be too burdensome, and they are certainly not something that a NGO, a museum or a library can easily obtain in most Member States. This means that the rapporteur’s proposal ends up greatly limiting the potential beneficiaries of the exception, even if indirectly.
Non-digital uses, scientific research and contractual overrides
We are surprised to see that MEP Comodini did not embrace any of MEP Stihler proposed amendments to strengthen the exception, more precisely:
- the extension of the scope of the exception to non-digital uses,
- the inclusion of ‘scientific research’ purposes along with educational ones, and
- the introduction of a rule to prevent rightsholders from overriding the exception through contractual provisions.
As we noted before, while the InfoSoc Directive is technologically neutral, the Commission’s proposal will introduce an artificial barrier between ‘digital’ and ‘non-digital’ uses, adding unwanted complexity to educators and leaving unharmonized a large spectrum of non-digital educational activities, which are equally important and that may even occur in parallel to the digital ones.
The InfoSoc Directive provides a similar treatment to education and scientific research. The research community argues, and rightly so, that the natural step for most universities and research organisations is to propose an exception that cover both purposes, as “the activities of teaching and research intertwine inseparably”.
Finally, the JURI rapporteur did not follow the approaches of the IMCO and CULT rapporteurs when it comes to making unenforceable any contractual provision contrary to the education exception, as the Commission did in the area of the text and data mining.