During the recent high-level conference on copyright in higher education, which we organized with the European Trade Union Committee for Education (ETUCE) and the European Federation of Education Employers (EFEE), we had the pleasure of hosting MEP Alex Voss. It was a rare opportunity for us to hear the rapporteur for the Copyright in the DSM Directive dossier speak about the educational exception. Here is our critical take on this speech, which gives a good sense of how Mr. Voss sees the issue of copyright and education.
Mr. Voss defined the general question as defining “when to pay, and when to use copyright protected works freely”. We believe that we will never have good copyright for education if we see it as just an issue of transfer of funds.
This is all about copyright, not education?
In the talks during the event, members of Communia as well as other speakers — representing for instance teacher unions, or educational employers — focused on the broad right to education and educational goals. They spoke about quality of teaching, equity in education, and the rights of teachers as creators.
In turn, even though Mr. Voss began with general declarations on the importance of education for European societies, when mentioning details, he seemed focused on ensuring remuneration for rightholders. We would hope that he would represent a more balanced approach, which should pay attention to supporting educational systems across Europe.
Compensation: schools may or should pay?
Sometimes a single word counts, and we paid attention to the fact that Mr. Voss said that “fair compensation should be provided”. Until now, the compromise amendment included language that left it to the Member State to decide whether to have a remunerated exception or not. Let us remember that today 18 European Member States have an unremunerated exception: educators use works for educational purposes without paying anyone (and the sky has not fallen on publishers and other rights holders). This seemingly innocent shift of wording spells a huge change for more than half of European educational systems.
We were therefore not surprised that Mr. Voss did not address at all the controversial Art. 4(2), which creates a loophole that allows Member States to “turn off” the exception and replace it with licensing schemes. This is one more element that makes sense only if we see this exception as a tool for remunerating rightholders, instead of supporting educators. Art. 4(2) exports across Europe the Scandinavian model, in which all uses are collectively licensed and paid for — a model which is receiving growing criticism even in the Nordic states (as explained last year by Maria Rehbinder at an event in the European Parliament hosted by MEP Marietje Schaake).
Publishers are a small market that needs to be protected?
Mr. Voss mentioned one issue that he feels still needs to be addressed; it turned out to be one more benefit for educational publishers.
The current exception allows educators to use textbooks just like any other resource: a movie, or a painting from an art gallery. All are covered by the exception. We have learned that during meetings at which the shape of the Directive is being finalized, Mr. Voss has recently started arguing for a carveout for educational publishers so that textbooks would not be covered by an exception.
During our conference, Mr. Voss presented the publishing market as “a very small market” — so small and vulnerable that the legislator needs to be very careful with the exception, lest it endangers the publishers.
The “very small market” argument is hard to understand. Publishing is the “largest cultural industry in Europe”, which “shows signs of a new phase of sustainable growth”, according to a FEP report from 2017. Educational publishers have a growing share of the overall turnover, reaching 20% in 2015. And then there is the example of Elsevier — the European educational and research publisher based in the Netherlands, which brought in a profit of almost 1 billion GPB and a profit margin of 36.8% in 2017. This hardly sounds like a small, vulnerable sector that requires special attention from Mr. Voss, the JURI Committee, and the European Parliament.
Tellingly, Mr. Voss did not mention, even once, European teachers, educators and students as the stakeholders about whom policymakers should care. One could get the impression, that the futureproof education in Europe will be ensured solely through publishing efforts and copyright protection.
“This is only a Directive”
Finally, Mr. Voss seemed to present the Directive as a tool that sets general legislative direction, which then will later be defined by Member States. This is simply not true. Member States will indeed transpose the Directive, and in the process often adjust certain details. But the Directive itself, together with the recitals, is a crucial tool for shaping law across Europe. Decisions made by Mr. Voss and the JURI Committee are guaranteed to shape copyright as it applies to education, for years to come. Let’s all make sure that the legislators in Brussels get it right this time.