In its communication on the copyright framework, the European Commission has promised to clarify the scope of the existing exception for illustration of teaching, and its application for digital uses. The overarching goal was to have a mandatory exception that is relevant and effective in the digital age.
Having read the leaked draft of the proposed Copyright in the Digital Single Market Directive, it is clear to us that these goals will not be met. The proposed educational exception, despite having some good elements, will overall worsen the legal environment for educators. And it likely will introduce major costs for public educational systems around Europe.
The licensing narrative
The worst part of the proposed exception is a rule that gives member states the right not to apply the exception, if adequate licenses are provided by the rights holders. This is a rule that in practice makes the exception powerless as a tool for supporting education through legal means at the European level, as member states ultimately will decide whether to provide an exception. And it’s hard to imagine that they will be willing to avoid the rule “no exception can exist if licensing options are available”.
Around Europe, educators depend on the exception to conduct innovative, modern education. Yet they often fall into a grey zone of legal uncertainty – in the most typical scenario, a teacher sets up a school film club, only to find out that viewing films might not be covered by an exception. At that point, a commercial intermediary usually presents itself, and offers a licensing option. There is nothing wrong with that – other than that public school systems are not able to cover these costs. According to our analysis of the situation in Poland, if every school had to purchase one of the available licenses, the public budget would have to invest half the amount it pays every year for financial support to poor students. These are large amounts that could be invested otherwise in generally underfunded educational systems. The proposal does not seem to draw conclusions from this scenario, and seems happy to force educational institutions to adopt licenses – as there won’t be any exception available, to provide a safe, free space for educational uses.
The Commission argues, in the leaked Impact Assessment, that data from member states where licensing options proliferate show that “costs are rather limited if compared to establishments’ overall costs”. This comparison is misleading and unhelpful. Surely, licensing would cost less than upkeep of thousands of school and academic buildings, or that which is allocated for educators’ wages. But licensing fees can still be large sums—which most of the time do not fit into tight budgets. And we need to remember that the ECL scheme, demonstrated by the Commission as a best case scenario, functions well only in rich, Scandinavian countries.
No harmonization of the InfoSoc exception (which is good enough)
The Commission proposes to introduce a new education exception, instead of harmonizing the education exception that is embodied in article 5(3)a of the InfoSoc Directive. The Commission seems averse to touching the existing, non-harmonised exceptions, which is regrettable.
As we argue in the education chapter of our Best Case Scenarios for Copyright (and has also been argued by international scholars in the past), the EU education exception is a reasonably well-designed “prototype” that does not restrict the beneficiaries, the types of activities, the technological context or the categories of works covered by the exception. The only conditions imposed by the InfoSoc Directive are that the activity in question must be of a non-commercial nature and that the source must be indicated.
Surely, the non-commercial limitation can still pose some interpretation problems, and we would rather have it replaced by a reference to fair practice (like the Berne Convention). But harmonizing the existing EU education exception would be a much better scenario than the one we will now face—a patchwork of various national solutions that are often incomplete when considering the needs of teachers, students, and educational institutions.
A new harmonized exception (which is not good enough)
We’ve always supported the idea of harmonised exceptions, and criticised the non-harmonised approach of the InfoSoc Directive as ineffective, and leading to great legal uncertainty across Europe. But harmonisation is beneficial only if it does not lower the standard – which will be the case if the proposed exception is adopted in its current form.
Let us look at the harmonised exception that the Commission proposes:
- It only applies to digital resources and online environments, leaving unharmonized most of the face-to-face teaching activities, and also distance learning activities that are developed offline;
- It only benefits educational establishments, which means that online and digital uses made by teachers and students not affiliated with educational establishments will not be exempted;
- In the classroom it only covers digital uses (e.g. whiteboards), and the online uses covered can only be made under the closed networks run by the educational establishments (e.g. intranet). Online uses in the open internet, namely uses of protected works in OERs and in MOOCs, will not be covered by the exception.
Across Europe there are member states that currently have good educational exceptions that already cover all types of educational activities (including face-to-face teaching, distance learning and online education) by all sorts of users. The leading example is Estonia, which is the EU country that has come the closest to making a literal transposition of the InfoSoc exception and that, thus, allows the broadest spectrum of educational uses of copyrighted works. In these countries, the new proposed exception would mean a significant step back.
The logic behind all this is unclear
So, why has the Commission opted to leave a good exception unharmonized and introduce a new mandatory exception that only covers part of the educational activities?
The last thing that the Commission should be proposing is adding complexity to a legal framework that is already difficult to grasp. An exception that is directed to teachers, schools and students should be simply designed. The education community should not be required to look into different provisions to figure out which educational activities are exempted or not.
And why has the Commission opted to bet on licensing mechanisms as the solution for copyright in education?
The failure of the “Licenses for Europe” process suggested that it is clear to the Commission, that licensing are not a solution that can replace legislative change, and in particular modernisation of the exceptions package. While reading the draft Directive, one gets a strong sense of déjà vu – we’re back to the licensing debate.
In the coming weeks, we will be working on a more in-depth analysis of the proposal – please stay tuned for a detailed policy brief on this matter.
Written by Alek Tarkowski and Teresa Nobre