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.
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?
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?
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.
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.
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!