A few weeks ago, the German government shared its proposal for the implementation of some of the provisions of the new Copyright in the Digital Single Market Directive, including the new EU education exception (Article 5 in the final version of the Directive).
Similarly to what we did with the Dutch proposal, we will provide here an overview of the German proposal to implement locally the new exception. This is part of our effort to track how countries across Europe implement this mandatory exception to copyright for educational purposes.
What changes are introduced to the existing legal framework in Germany?
Germany proposes to implement the new educational exception through an amendment to the existing education exception in Section 60a of the Act on Copyright and Related Rights (see English version here).
The current exception covers all relevant, digital and non-digital, educational activities undertaken by educational establishments for non-commercial purposes. The exception is technologically neutral and allows the educational establishment’s teachers and students to hold activities in any venues. However, it sets quantity limitations (save for illustrations, isolated articles from the same professional or scientific journal, small-scale works or out-of-commerce works, which can be used in their entirety, the exception only allows the use of up to 15% of a work) and it excludes specific uses of certain types of materials from the scope of the exception, most notably materials exclusively intended for teaching in schools and sheet music. Furthermore, most uses are subject to the payment of compensation to the rightholders.
Under the new proposal, the scope of the education exception would be practically the same. The main difference is that the exclusion of specific uses of certain types of materials would be conditioned to the existence of licenses (easily available in the market and covering the needs and specificities of educational establishments) authorizing those uses. In other words, if such licenses do not exist, then those uses can be made under the exception.
What is the main flaw of Germany’s proposal?
The main flaw of the proposed education exception is to give preference to licensing offers over the educational exception, with respect to specific uses of certain types of materials, taking away the educators and the learners right to make those uses under the exception as soon as copyright owners start selling licences for said uses.
One can argue that the proposed exception shows a clear improvement as compared to the existing exception: where, before, the formal educational community in Germany could not make certain uses of certain materials under the education exception, now they are only prevented from doing so if they are able to easily find in the market licenses for those uses, and provided that those licenses meet the needs and specificities of the educational establishments.
However, that is not the right way of looking at it, because the new Directive does not allow Member States to exclude specific uses from the scope of their educational exception unless – and to the extent that – there are licenses available in the market covering those uses. In other words, Germany did not have the option to simply keep the existing framework. It was always required to bring those previously excluded uses under the scope of the new exception. And it could have done so without making the educational exception partially dependent on the availability of licenses.
Education exceptions should not be partially subject to license availability
We have long been arguing that a teacher’s or student’s ability to benefit from the exception should not be taken away by copyright owners. Otherwise, the law ends up negating the effectiveness of the exception. Indeed, the beneficiaries will be denied the right to make certain uses under the exception, and will be forced to buy licenses for those uses. As we saw in our short analysis of educational licensing agreements, those licenses might not be subject to negotiation, might be disadvantageous for educational institutions in terms of added costs, added bureaucracy, surveillance or uncertainty about the conditions attached to licenses.
In addition, the replacement of the exception with licensing offers might go against fundamental rights. In the CJEU judgment dated as of 11 September 2014, Technische Universität Darmstadt v Eugen Ulmer KG (“TU Darmstadt”), the court stated that, when a copyright owner offers an institution to buy a license from them, such one-sided licensing proposal is not sufficient to say that the exception is no longer applicable. According to the court, only if the two parties have agreed on a license, can the exception be set aside. Otherwise, one would be denying the establishment concerned “the right to benefit from that limitation and thereby prevent it from realising its core mission and promoting the public interest”.
In sum, the German proposal sets a bad example and a dangerous precedent for users rights and should, therefore, be amended. Schools and their teachers and students should not be forced to stop relying on the exception for specific uses of certain types of materials when copyright owners start marketing licenses covering those uses. Copyright owners should not be able to switch off the education exception for those uses. Otherwise, over the coming years educators and learners in Germany could benefit from an education exception with an enlarged scope of protection only to see it be narrowed down again and replaced by licensing schemes.
More room for improvement
There are two other issues that have been part of our concerns during the legislative debate of the new EU mandatory educational exception that could have been considered in the German proposal. One regarding the scope of the exception (in terms of beneficiaries and the extent to which a work can be used) and the other regarding compensation rules for educational uses.
Although the German exception allows uses to take place outside the premises of educational establishments, e.g. in a museum, library or another cultural heritage institution, it does not cover the activities run by those institutions themselves. Considering that every year 24 million adults take part in non-formal training activities in libraries across the EU, it would be sensible to at least include them in the scope of the new provision.
The German exception pre-dictates the maximum extent to which a piece of content can be used in Germany, thus concurring to the fragmentation of the copyright framework for educational activities across the EU. Indeed, if each Member State decides to make use of this option, and each defines different ceilings, we will end up with the same fragmented landscape that currently prevents online and cross-border education in the EU.
We know that, as a rule, an educational exception only allows the uses of parts of works, but for certain materials (e.g. a photograph) work must be used in its entirety, and for other materials, depending on the circumstances, it would be reasonable to use e.g. 20% instead of 15% of a work, as foreseen in the German exception.
Article 5 of the Directive does not define the maximum extent to which the protected content can be used under the exception: it states that the materials can be used to the extent necessary to the activities permitted under the exception. This allows practice and court decisions to define what is right. The 3-step test gives the flexibility users need in any given situation, while protecting the interests of copyright owners. Defining a floor in the law, in terms of the amount of content that can be used under the exception, helps providing legal certainty to teachers and students, and should therefore be supported. However, defining ceilings in the law, beforehand, can only lead to unfair situations, and should therefore be rejected. For these reasons, the German education exception should be amended to clarify that one can use at least (and not up to) 15% of a work or other subject matter.
Finally, Germany decided to keep most educational uses subject to the payment of compensation to rightholders. The only exception to this rule is with regards to communications to the public (excluding making available to the public) for the benefit of members of educational establishments and their families, which are free.
We believe that, even for countries that have a tradition of compensated exceptions, like Germany, an assessment should be made as to the potential harm caused to copyright owners by minimal usage of protected content in an educational context. If the harm is reduced or non-existent for uses below a certain percentage of protected content, it is only sensible for such uses to be exempted from the payment of compensation. The government could attempt to define a reasonable threshold that takes into account the amount of protected content used in the educational activity and eliminates the payment of fair compensation if the threshold is not reached. What is reasonable should be assessed quantitatively but also qualitatively, and the local educational community should be consulted and have a saying in the definition of this limit.