The education exception was gutted during the Trilogues

A dragon devouring the companions of Cadmus
Article 4: attacked through the recitals

When the European Commission proposed to grant the same minimum rights for digital educational activities in every EU Member State, we applauded the initiative. The proposal had flaws, but there was room for public discussion at the European Parliament, which could have led to an improvement of the proposal. Unfortunately, the improvements introduced by the Parliament were gutted during the trilogue debates, which were conducted behind closed doors.

Let’s recall the improvements introduced by the Parliament: (i) on the issue of licensing, where the EC proposed to allow the exception to be switched off if unilateral licensing offers were made available to schools, the EP suggested to give priority only to bilateral licensing agreements that the schools had agreed on; (ii) on the issue of beneficiaries, where the EC proposed to cover only the activities run by formal educational establishments, the EP suggested to include museums and other cultural heritage institutions as beneficiaries of the exception; (iii) on the issue of contractual overrides, where the EC had done nothing to protect the exception against contracts, the EP proposed to prevent contractual overrides of the education exception, and (iv) on the issue of technologies, where the EC proposed to make the exception function only on the school’s closed networks, the EP attempted to cover more means of communication by replacing the word “networks” with “environments”.

Unfortunately, the European Council did not engage in the same type of public discussions with regard to new European law proposals and, maybe because of that, it’s version of Article 4 did not include similar improvements. What is worse: it made the prospects of having an improved and harmonized landscape for educational activities in Europe even less likely.

For several months, the Commission, the Council and the Parliament discussed, behind closed doors, the fate of the new Directive, and as far as we are aware there was little interest in discussing the education exception because there were other pressing issues that required their attention. As a result, the positive amendments contained in the Parliament version were not retained in the Trilogues.

Below, we explain three negative changes made to the text of the educational exception in this final phase of the legislative process. Changes made without public consultation, transparency or due review of evidence. These include denying teachers the right to benefit from the exception when there are licenses available in the market for them to buy; excluding the educational programs run by museums and libraries from the scope of the exception; and allowing Member States to fragment the exception, by defining different proportions to which a work can be used.

Teachers can benefit from the exception, but only if publishers let them

Over the coming years, educators and learners could benefit from a new education exception, but might only see it disappear and be replaced by licensing schemes. The compromise position approved during the Trilogues allow Member States to switch off the exception provided that licenses are “easily available in the market”. This means that no contractual relationship is needed to rule out the application of the exception; a mere license offer, a license that is “easily available in the market”, is enough to deny schools the right to benefit from the exception, even if they do not agree to the terms and conditions of said license.

By rejecting the Parliament’s version of Art. 4(2), which would  give priority only to “license agreements” that both parties (the schools and the rightsholders) had agreed to, the EU institutions clearly intended to go against the Court of Justice of the European Union, which had previously ruled out the possibility of denying the right to benefit from a copyright exception when licenses were available to the beneficiaries of said exceptions.

Educational activities run by museums and libraries are no longer covered by the exception

Education is understood today as a process that is conducted by a multitude of institutions, and even learners themselves. The EC failed to embrace this reality by limiting the potential beneficiaries of the proposed exception to formal educational establishments. The Parliament, realizing the importance of cultural heritage institutions in the provision of education, sought to broaden the type of institutions that could benefit from the new educational exception to include those.

Dozens of Members of the Parliament proposed amendments to include the educational programs run by museums and libraries within the scope of the exception. It was, thus, without surprise that the version of the Directive approved by the Parliament contained the following amendment (recital 15):

Where cultural heritage institutions pursue an educational objective and are involved in teaching activities, it should be possible for Member States to consider those institutions as an educational establishment under this exception in so far as their teaching activities are concerned.

The Council did not include a similar amendment, but considering that the majority of the Parliament had embraced this cause, we were expecting it to withstand during the Trilogues. However, that excerpt of Recital 15 was quietly removed. This means that, if the Directive passes without this language, museums and libraries can no longer rely on this copyright exception when providing educational activities.

So long harmonization: each country may define a priori the extent to which a work can be used, leading to different limitations across the EU

A little reminder: educators and learners across the EU struggle everyday when dealing with copyright both in their countries (because some EU countries do not have proper copyright exceptions in place for educational purposes) and across borders (because the educational exceptions do not work the same way in every EU country, making it impossible to engage in cross-border educational activities).

The whole point of the new educational exception was to harmonize a legal landscape that is currently so fragmented that it creates legal uncertainty for teachers, promotes inequality among students and severely limits cross-border collaboration.

In order to offer certainty for the educational community in a way that results in removing the current obstacles to cross-border education, the minimum rules need to be the same in every country. In other words, there needs to be a minimum agreement with regard to whom can use copyrighted materials under the exception, which uses are possible, what types of copyrighted materials can be used and to which extent, and what other conditions are in place.

Both the Commission’s proposal and the Parliament’s version covered all the types of copyrighted works and other subject matter “to the extent justified by the non-commercial purpose to be achieved”. The version of Article 4 resulting from the Trilogues continues to say the same thing. However, the Council managed to convince the other two EU institutions to include in Recital 16 the following language:

Member States should remain free to specify, for the different categories of works or other subject-matter and in a balanced manner, the proportion of a work or other subject-matter that may be used for the sole purpose of illustration for teaching.

There seems to be an aversion of EU Member States to let practice and court decisions define what is balanced, and what is fair. Sure enough, as a rule, an educational exception only allows the uses of parts works. But if the work is an image or a short poem, then it is only reasonable to permit the use of the work in its entirety.

The three-step test gives the flexibility the users need in every given situation, while protecting the interests of rightsholders. Defining percentages beforehand can only lead to unfair situations, and giving Member States the option to define different percentages can only perpetuate the current fragmented landscape that prevents cross-border exchange of materials during the course of educational programs.

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