As reported last week, the voting of the Internal Market Committee on the Draft Opinion on the proposed DSM Directive was full of plot twists, but none related to the issue of education. The Committee adopted its compromise amendment to article 4 and it was applauded by many, since this amendment offers a better solution to the obstacles faced by educators and learners across Europe than the Commission’s proposal. Yet, the educational exception resulting from this compromise is still not suitable to the modern needs of educators and learners across Europe.
Giving preference to new licenses is always a bad idea
The IMCO amended article 4(2) in order to give precedence only to extended collective licensing (ECL) schemes. This shows appreciation of the weak position of educational institutions to negotiate individual licenses, and thus represents a progress in relation to the Commission’s proposal. However, it’s not enough to guarantee that the new exception will not simply be replaced by ECL schemes all over Europe.
The ECL schemes have been in existence in the Nordic countries for a long time now, and there’s a general understanding that they have to be protected in those countries. We cannot overemphasize the fact that the term “limitation” in article 4(1) encompasses compulsory or statutory licenses. On the other hand, works of authors that opt out from voluntary licenses will fall under the exception anyway. In other words, maintaining article 4(2) is not that relevant.
What policy makers that want to protect the public interest related to education should worry about is that ECL may be exported to countries with no tradition whatsoever of implementing such schemes. These are also countries which currently do not foresee any compensation for most or all of the uses made under their educational exceptions. They might be forced to introduced compensation, based on the proposed law.
We recall that, 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. Paying a license to use copyrighted materials that could otherwise be used under an unremunerated exception is a concern for many schools and educators across Europe. The majority of Member States – 17 to be more precise – do not currently foresee remuneration for a significant part of the uses that are made under educational exceptions.
If article 4(2) has to be maintained, a much better approach is the one proposed by Ms. Comodini, which gives precedence over the exception only to existing contractual relations. This way, schools, educators and learners would not be left with no option but to pay a license, namely an ECL.
Opening up the scope of the exception, but not too much
The compromise amendment brings some changes to the list of entities and persons that can benefit from the proposed educational exception. Cultural heritage institutions (which the IMCO proposes to redefine to include galleries, educational establishments and public service broadcasters) are now listed as an example of a venue involved in teaching activities where educational uses under the exception can take place.
Departing from the premises of an educational establishment to such type of venues is a significant improvement in relation to the Commission’s proposal. Nevertheless, keeping the educational uses of copyright works confined to those places that are “involved in teaching activities” is not the best way of reflecting the reality of education nowadays. Can a venue that was rented just for the purposes of holding a conference or a seminar be considered “involved in teaching activities”?
Another problem is that the IMCO only leaves the door open to venues other than educational establishments and cultural heritage institutions with regards to face-to-face uses. Online uses are restricted to education provided by those entities. According to the compromise amendment, only educators and learners that are connected with an educational establishment or that are “registered members of the cultural heritage institution” (what does it mean to be a registered member of a museum, gallery, library?) can make educational uses of protected works through electronic networks. The Committee kept the concept of secure electronic networks that are accessible only by certain people (including now the members of the cultural heritage institutions). This excludes emails, cloud file sharing, and of course the open Internet, which is an important means of having access to education in the 21st century.
Bringing in non-digital uses and research purposes
The compromise amendment on education removes the artificial division introduced by the Commission between ‘digital’ and ‘non-digital’ uses. This division does not exist in the optional educational exception adopted in 2001. In the year of 2017, when educators and learners work constantly in both environments and can no longer perceive those divisions, basing law on such an artificial distinction seems completely unjustified.
Another good feature that the compromise amendment picked up from the MEP Stihler Draft Opinion was the inclusion of scientific research purposes within the scope of the exception. The EU tradition, reflected in the optional educational exception contained in the InfoSoc Directive, is to combine educational and research purposes in the same exception, as they are interconnected. The research community did not understand why the Commission left research aside from its proposal and the IMCO amendment rectifies that fault.
Finally, the Committee proposes to introduce two clauses that deserve our praise. One is a non contractual override provision, which adds an important layer of protection to the exception. The other is a clause to ensure that authors are able to provide royalty-free licenses (e.g. Creative Commons licenses), which is extremely important in countries that have compulsory licensing schemes.