Implementing the new EU exception for digital and cross-border education

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This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for digital and cross-border education contained in the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 5, authored by Teresa Nobre.

What is at issue in Article 5?

Currently, some countries have educational exceptions and others do not. This fragments and severely limits education in the EU region. Online and cross-border activities are not possible. Article 5 tries to solve some of these issues, but fails.

Breaking down Article 5

What can be done? Digital uses (no distribution)

Who can make those uses? Educational establishments

What content can be used? Works and other subject matter protected by EU laws

For which purposes? Illustration for Teaching

To what extent? Member States decide

In which places? Any venue

Using which technologies? Secured electronic environment

For free or paid? Member States decide

Is the use allowed if there are licenses for the same use? Member States decide

Covers cross-border and online uses? Yes (fictions that everyone is where the school is) (but doesn’t work for joint activities by schools in different countries)

How to deal with Article 5?

Implement Article 5 without the harmful clauses. In countries where there is no political willingness to take full advantage of the policy space that is available under the existing EU laws, but only to do what is requested by Article 5, one should advocate for the best possible implementation of Article 5, which is a version that respects the conditions required by the EU lawmakers, but does not make use of the harmful options given to national lawmakers:

  • No license priority (the exception shall apply even if there are licenses available in the market for the same uses)
  • No compensation (in countries where the existing educational exceptions are not subject to compensation)
  • No quantity limitations
  • Introduce a broad definition of “secured electronic environment”

Move beyond Article 5. Member States can adopt or maintain in force educational exceptions that are broader in scope than Article 5 and yet are compatible with EU law. The ideal scenario for education would be to improve the existing educational exceptions in each country, by covering:

  • All uses that are protected by copyright and related rights in the national law
  • Joint educational activities provided by multiple education providers
  • Educational activities provided by libraries, museums and archives, as well as informal and non-formal education providers
  • Uses that take place on informal learning platforms

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