Last week we started discussing the the draft opinion of the Culture and Education Committee of the European Parliament, presented by rapporteur Marc Joulaud. While he rightly points out how unbalanced the proposal is as it ignores many of the most pressing concerns of internet users, he does not help the discussions surrounding the ‘press publishers right’ by introducing a murky non-commercial clause. Today we discuss his amendments for education. In short: it does not spell good news for educational stakeholders. In a move that on the surface aims to provide greater clarity, Joulaud pushes for even stronger reliance on licensing for educational uses. Furthermore, he proposes to make remuneration for digital teaching uses mandatory. We opposed both these changes from the very beginning of the discussion on the scope of the copyright reform.
It is worth noting that the issue of exceptions (in particular for education) has not received as much attention as the link tax (art 11) or the content filter (art 13) in the whole debate on the proposed directive. Yet it is crucial from the viewpoint of a Committee that deals with education, and Joulaud rightly sees it as one of four key issues.
Joulaud, in the justification to the opinion, and in an opinion piece published by the Parliament Magazine, declares support for a balanced approach:
If the protection of intellectual property is a fundamental right, it should not be a disproportionate obstacle to the use of works for public interest.
[…] for instance by threatening existing and perfectly viable ecosystems, like commercial licenses for data mining or educational licensing schemes.
This is reasonable as a general statement, but we’ll see that it leads Joulaud to propose amendments that are hardly balanced.
Joulaud states openly: “The Rapporteur supports the new mandatory exceptions and limitations provided in this Directive”. But is that really the case? The proposal for the Copyright Directive on one hand proposes a new mandatory educational exception for digital uses. On the other hand, the proposal adds to it an override mechanism that is triggered by the availability of licensing options. We knew from the start that a mandatory exception will be next to impossible, as Nordic Member States have historically relied on extended rights licensing solutions, which they do not want to give up. But the question remains: do other Member States need to jump onto the licensing bandwagon?
The original proposal creates a mechanism in which this question would no longer depend on the results of a public debate between stakeholders. All that would be needed to “switch off” the exception is for a member state to be convinced by a publisher that promote licenses as the solution for everything, and the Member States implement this mechanism.
Yet Joulaud goes even further and requires Member States to
actively assist in ensuring the availability of the licences authorising at least the acts described in paragraph 1, for example by acquiring collective licences on behalf of the educational establishments established on its territory or by facilitating dialogue between rightholders and educational establishments with a view to establishing specific licences.
It is hard to see how this is an expression of support for (mandatory) exceptions. With active assistance of Member States, rightholders will establish licensing options, that according to Article 4 of the proposal will immediately trump educational exceptions. Joulaud describes this as “providing legal clarity for educational establishments”.
Remuneration is not traditionally provided
Furthermore, Joulaud proposes to make remuneration obligatory, arguing that this is “traditionally provided for under the existing copyright rules”. We would like to remind that today the issue of remuneration is left for Member States to decide, and according to the EC study from 2016 called Assessment of the impact of the European copyright framework on digitally supported education and training practices:
Almost half of the countries analysed have no compensation mechanisms foreseen for teaching uses at all. (pg. 93).
If we add up those Member States that have no compensation scheme in place for all teaching uses and those that do not offer any compensation for a significant part of teaching uses, the number raises to 17 member states. (see Table 15: Compensation mechanisms for use of copyrighted works under exceptions and limitations, pg. 94 of the aforementioned EC study). It is therefore far from reality to say that remuneration is ‘traditionally provided”. Joulaud appears to be generally in favour of remunerated exceptions, as he proposes a similar rule for the new Text and Data Mining exception.
There’s one thing to be liked in the proposal: a new paragraph on the unenforceability of contractual provisions contrary to the exception. Yet, in the ecosystem envisioned by Joulaud, in practice there will not be any exceptions to defend, if the publishers do their job and Member States implement the licensing mechanism.
We are very much disappointed that this unbalanced opinion is presented in the Committee that is best suited to understand both the needs of educators and rightsholders. The strengthening of the licensing solution (despite declarations of a balanced position) brings us back to the failed “Licenses for Europe” model, and away from the goals set by the Commission in its Communication on Modern Copyright.