How Hungary has quick-fix implemented Article 5 of the DSM directive

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This blogpost is part of a series of blogposts where we track how EU Member States are adapting their national laws to the requirements of Article 5 of the Copyright in the Digital Single Market Directive (DSM directive), which sets new minimum standards for the digital and cross-border use of copyright materials in education. So far we have published analysis of the Dutch and the German proposals. Today, we provide an overview of the Hungarian new education exception by Mónika Trombitás Andersson. This overview focusses on the substance of the new exception; for critical perspective on the legislative procedure see here.

Fast implementation of the new exception to permit remote teaching during COVID-19

Just as in several other EU Member States, in Hungary as well the stakeholder consultations regarding the implementation of the DSM Directive are still ongoing. Yet, the provisions set out in Article 5, namely those concerning the use of works in digital and cross-border teaching activities, have already been implemented and the relevant amendments to the Hungarian Copyright Act (No. LXXVI of 1999) came into effect on 18th July 2020. The reason? Urgent need for modern copyright rules enabling schools to swiftly transition into distance education during the COVID-19 pandemic and distribute learning material digitally.

What was the copyright framework for education in Hungary?

Before the DSM directive has been adopted, the Copyright Act already regulated the exception for education as a ‘free use’ in its Section 34:

(2) Part of a published literary or musical work or of a film, or small entire works of such nature as well as pictures of works of fine art, architecture, applied art and industrial design creations, and photographic works may be borrowed for the purposes of illustration for school education and scientific research, while indicating the source and the author named in such work, to the extent justified by the purpose and on the condition that the recipient work is not used for commercial purposes. Borrowing shall mean the use of a work in another work to an extent exceeding quotation.
(3) The non-commercial reproduction and distribution of the recipient work mentioned in paragraph (2) shall not require the author’s authorization if the recipient work, pursuant to the relevant laws, is published as a textbook or reference book and the school educational purpose is indicated on its front page.
(4) The work may be adapted for the purposes of school education in the course of educational activity. The authorization of the author of the original work shall also be necessary for the use of the work thus adapted.

The condition of non-commercial use has been adopted following the implementation of the InfoSoc directive. Paragraph 2 regulates ‘borrowing’ for a defined catalogue of works. Importantly, unless it is a ‘small work’, only a certain part of the published work can be borrowed. Importantly, as opposed to paragraph 1, which regulates quotation, paragraph 2 allows for free use of even pictures of works of fine art, architecture, applied art and industrial design creations, and photographic works. Furthermore, borrowing for educational purposes is limited to use in another work (to an extent exceeding quotation). Paragraph 3 allows for the ‘reproduction’ and ‘distribution’ of the recipient works included to the above referenced catalogue, provided that the recipient work is published as a textbook or reference book and the school’s educational purpose is indicated on its front page.

Definitions of educational purpose has been provided in Section 33 (4):

(…) the use shall be regarded to serve the purposes of school education if it is implemented in accordance with the curriculum and educational requirements in kindergarten, primary school, secondary school, vocational training and technical school education, in institutions of primary education of arts, as well as in higher education falling under the scope of the Act on higher education.

Lastly, Section 35(5) on private copying also included relevant, education-related rules: “Parts of a work published as a book, as well as newspaper and periodical articles may be reproduced for the purposes of school education in a number corresponding to the number of students in a respective class, or for the purposes of exams in public and higher education in a number necessary for that purpose.”

The main takeaways are that the previous system did not include a licensing scheme as seen in other European jurisdictions, especially in Scandinavia. Furthermore, it was applicable for only certain types of works, which had to be published, and the relevant exceptions meant a free use, without financial compensation to the author. These rules were complemented by those on quoting in Section 34 (1).

What changes were introduced to the existing education exceptions?

These fundamental features of the Hungarian Copyright Act are not affected by the implementation of the DSM directive. For easier review, all amendments are briefly listed below:

  1. The definition of educational purpose has not been changed, although following the final implementation of the remaining articles in the DSM directive, it may be renumbered.
  2. Section 33/A is adopted in line with the DSM directive, codifying the definition of ‘secure electronic environments’ in a technology neutral manner. In accordance with this definition, Section 34 (4) is amended to clarify that the listed works may be adopted for the purposes of school education in the course of educational activity, even via secure electronic environments. Importantly, authorization of the author is still required for use under Section 34 (4).
  3. The wording of Section 34 (3) is replaced with the following wording: “The authorization of the author is not required for the recipient work under paragraph (2) (a) for reproduction and distribution, if the recipient work, pursuant to the relevant laws, is published as a textbook or reference book and the school educational purpose is indicated on its front page, or b) for school education [33. § (4)] for use in digital form at the place education, on an electronic device, or for transmission to the public via a secure electronic environment, provided that such uses are not made on a commercial basis.” The novum here is of course Section 34 (3) (b), where ‘use in digital form at the place of education’ and ‘transmission to the public via secure electronic environment’ are added as cases of free use under the already existing framework for exceptions related to education. This means use without authorization of, and financial compensation to, the author.
  4. Section 34 (3a) provides that use within the meaning Section 34 (3) (b), shall be deemed to occur solely in the Member State where the educational establishment is established. This amendment again, does not divert from the wording of the DSM directive.
  5. Section 35 (5) is amended by allowing for distribution of parts of a work published as a book, as well as newspaper and periodical articles to the pupils and students concerned, as well as for making those works available to them on request through the secure electronic network of the educational institution.

All in all, it seems the Hungarian legislature has succeeded with a DSM directive conform implementation of Article 5, that fits in with the previous Hungarian system of educational exceptions, provides additional, digital ways in which the free use of borrowing for education purposes can be exercised, without creating additional barriers for places of education.

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