Today, Communia released a policy paper on fundamental rights as a limit to copyright during emergencies. This policy paper has been prepared in the context of the COVID-19 pandemic, which has caused a massive disruption of the normal organization of society in many EU countries.
In our paper we defend that, in order to transpose education, research and other public interest activities from public locations to private homes during government-imposed lockdowns, we need to be able to rely on the understanding that fundamental rights can, in exceptional situations, function as an external limit to our national copyright systems.
The main conclusions of our paper are the following:
The educational and research exceptions and limitations provided for in Article 5(3)(a) of the InfoSoc Directive and in Articles 6(2)(b) and 9(b) of the Database Directive, and the public lending exception provided for in Article 6(1) of the EU Rental and Lending Rights Directive are mandatory for Member States, due to the fundamental rights that they internalize, namely those enshrined in Articles 11(1), 13 and 14(1) of the EU Charter of Fundamental Rights.
In Member States that have education, research and public lending exceptions in place that follow closely the wording of the above-mentioned EU exceptions, applying and interpreting those exceptions in the light of the fundamental rights to freedom of information, freedom of science and education that they internalize is the only mechanism needed to safeguard most remote research, education and other public interest activities, during emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic lockdowns.
In Member States that do not have education, research and public lending exceptions in place that follow closely the wording of the above-mentioned EU exceptions, those activities can only be safeguarded, in the absence of permission from the relevant rightholders, through the direct application of national standards of protection of the fundamental rights to freedom of information, freedom of science and education.
If, due to the absence or insufficiency of legislative action, the national copyright law has no flexibility to temporarily adjust to new modes of living imposed by emergencies such as the COVID-19 pandemic, such law cannot be deemed to have properly internalized the fundamental rights enshrined in the EU Charter of Fundamental Rights. Applying fundamental rights as an external limit to the exclusive rights of authors and rightholders is, thus, the only legal mechanism available to ensure the effectiveness of EU law. In those circumstances, resorting directly to constitutional laws or other rules that protect fundamental rights would not conflict with the CJEU case-law, provided that national courts do not extend the scope of the above-mentioned EU exceptions.
This solution should be a patch, not a fix, to ensure the balance of interests foreseen by EU copyright law.
A balanced interpretation of the fundamental rights to freedom of information, freedom of science and education, on the one hand, and the exclusive rights of authors and rightholders, on the other, would lead to the conclusion that educational, research and other public interest activities that are equivalent to those conducted on the premises of educational institutions, research organizations and cultural heritage institutions are allowed remotely, at least during the periods when the physical premises of those institutions are forced into closure due to emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic lockdowns. For example:
- teachers displaying works and other subject-matter during a streamed or recorded online class accessible only to the school’s students or pupils;
- librarians and other facilitators reading aloud entire books to children, and displaying the respective illustrations, during a library’s live streamed story-time session;
- libraries, archives and other cultural heritage institutions making available, for the purpose of research or private study, to individual members of the public by secured electronic environments copies of works and other subject-matter which are contained in their collections, on the condition that the access occurs on the basis of the one-copy-one-user model; and
- online lending by libraries, archives and other cultural heritage organizations of digital copies of entire works or other subject-matter obtained from lawful sources, on the condition that the lending occurs on the basis of the one-copy-one-user model.
In order to reassure the community of educators, researchers, librarians and archivists in the EU that they are able to legally perform their activities remotely, if their institutions are forced into closure due to an emergency that fundamentally disrupts the normal organization of society, in our paper we recommend the Commission to issue guidance to clarify that our conclusions are compatible with the CJEU case-law.